With extensive experience in the management and resolution of building and construction disputes, the BDTSA is fast becoming is fast becoming a recognised and respected entity.

The BDTSA provides nationwide services to the building and construction industry as well as members of the general public.
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Below are some interesting articles published on construction and construction / renovation related issues. Please note that these articles are for informative purposes only and does not necessarily reflect the views of the BDTSA. Copyright is respected in all of these articles and credit is given to the individual authors.

Consumer protection in respect of construction contracts

Furthermore, the home builder may not demand a deposit for the construction unless the home builder and housing consumer have entered into a construction contract, nor may the builder receive any other consideration unless the home builder has enrolled the home with the National Home Builder Registration Council (hereinafter the “NHBRC”) in accordance with section 14 of the Act. The builder may only commence with building works if the NHBRC has issued a certificate of enrolment to the home builder. (Read more…)

Date of publication:

26-09-2017

Tips to deal with building dispute

Homeowners often discover that the stress and frustration associated with new home construction and alterations is more than they bargained for.

After many unsuccessful discussions with builders, homeowners are tempted to throw their arms up in disgust and adopt the attitude that they will simply have to accept the quality of construction that their builder delivers.

Common problems homeowners are faced with are bad building practices, incorrect building materials, scarce and unskilled tradesmen, as well as poor supervision and lack of attention to detail. (Read more…)

Date of publication:

03-07-2008

Substandard home building work could see contractors fined up to R1m

Home building contractors may face fines of up to R1 million per unit for substandard work, should the Housing Consumer Protection Bill be enacted.

The bill was published for public comment in the Government Gazette at the end of August and stakeholders have until the end of October to submit comment.

 

It would replace the current Housing Consumers Protection Measures Act, in terms of which the National Home Builders Registration Council (NHBRC) registers all home builders and home-building projects and provides protection against substandard work via a guarantee fund. (Read more…)

Date of publication:

20-09-2019

What you should know about building contracts in South Africa

In its simplest form, a building contract is an agreement about what each party will do for the other, and what each can expect the other to do in exchange.

Unless the parties have made their own terms, the common-law terms will govern the contract, in other words, generally asking what would be reasonable or common practice in the same or similar circumstances.

In order for an agreement to come into effect, there must have been an offer by one party, which has been accepted by the other. The acceptance of the offer will conclude the agreement and bring the contract into existence. (Read more…)

Date of publication:

2016

Mandatory mediation for all new High Court matters

As of 9 March 2020, parties are required to consider mediation for every new matter instituted in a High Court of South Africa. Non-compliance with this new rule, could result in a party receiving an ‘irregular step’ notice – which could significantly delay the finalisation of a matter, and lead to unnecessary costs.

Mediation typically is a voluntary process between parties to a dispute in which an impartial and independent mediator, assists the parties to either:
resolve the dispute between them;
identify and limit the issues in dispute;
explore potential areas of compromise;
generate options to resolve the dispute;
clarify priorities by facilitating discussions between the parties; and
assist in negotiations to resolve the dispute. (Read more…)

Date of publication:

30-03-2020

Construction dispute resolution procedures should be properly regulated

With this article, the author looks to the future, by considering particular types of clauses and provisions found in standard form construction contracts, and what possible changes to these provisions will require.

How should parties approach future contract negotiations, to ensure that a perfect balance of risks remains the champion of the day. It has been noted over the years, that a perfect balance of contractual rights and responsibilities, can be achieved between parties that enter negotiations with a collaborative approach, with a “we together” mentality.

(Read more…)

Date of publication:

2020

Choosing your builder: A checklist

The vast majority of things that go wrong on any building contract occur because of the choices that you make when appointing your builder.

If you are owner building and planning to hire a building contractor or are subcontracting parts of the project, make sure you know everything you need to know. Ask the right questions, have a checklist ready and choose wisely.

You cannot be too careful when choosing a contractor or subcontractor, go the extra mile and make sure that you feel confident that you have chosen wisely before you start building. (Read more…)

Date of publication:

20-07-2009

Avoid being the victim of an unscrupulous builder

Many of us have been victims of unscrupulous building contractors or know someone who has been. My sister was one of those victims, who, despite hiring someone she believed to be a reputable project manager to oversee her renovations, was left with a building disaster in which all the aluminium doors and windows had to be replaced, as well as having to completely redo the screed floor. The project manager placed herself under liquidation, so my sister never received a cent in compensation and, to rub salt into the wound….(Read more…)

Date of publication:

08-04-2018

Why South Africans will have to consider mediation before turning to courts

The Rules Board for Courts of Law has issued a draft rule proposing a new Rule that will compel South Africans to declare that they have considered mediation as a solution to any forthcoming legal matter and, if not, the court itself is obligated to manage cases effectively and recommend mediation as a dispute resolution if it deems it appropriate.

Mediation, which was introduced in South Africa as an Alternative Dispute Resolution (ADR), is a time- and cost-effective means whereby parties to a dispute can appoint a qualified neutral third party to act as mediator to facilitate an agreed settlement. (Read more…)

Date of publication:

20-08-2019

The use of mediation in the South African construction industry

It is widely accepted that mediation is intended to be a voluntary, non-binding, flexible, informal &confidential process.

Although the process involves a third party, namely the mediator, it is the parties who remain responsible for the outcome. (Read more…)

Date of publication:

2020

Mind your step when hiring a builder

Building a new home might be stressful, but renovations can turn out to be a lot worse – especially if you’re still occupying the premises and having to navigate around the dust, rubble and security issues.

Just ask Kevin McCloud, of Grand Designs, who’s probably seen more lofty building projects tank than succeed.

McCloud has visited many ambitious self-building projects in which people have tried to convert everything from a nine-storey Victorian water tower to ­crumbling ruins, cowsheds and barges into homes.

(Read more…)

Date of publication:

19-09-2016

Listed below are some of the South African case law commonly used and referred to in court cases and disputes in the construction industry. It is always advisable to consult with a legal professional if you need a detailed explanation or interpretation of these cases.

Van Der Merwe V De Villiers And Another [1953] 4 All SA 414 (T)

Onsite Inspection and Magistrate’s power to order inspection. Whether failure to grant order for inspection constitutes gross irregularity.

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Shamla Chetty t/a Nationwide Electrical v TBP Building & Civils (Pty) Ltd & another [2012] JOL 28331 (KZD)

Applicant disputed that the contractor fulfilled its obligations. The parties disagreed of their rights and duties and a referral to arbitration should therefore have followed.

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Raubex Construction (Pty) Ltd v Bryte Insurance Company Ltd [2019] 2 All SA 322 (SCA)

Insurance Construction guarantee issued by insurer and refusing to comply with demand for payment under guarantee.

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Radon Projects (Pty) Limited v NV Properties (Pty) Limited and another [2013] JOL 30597 (SCA)

Contract Building agreement where disputes were shown to relate to claims not already resolved

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MC Pieterse Construction CC t/a CMR Construction v Faulhaber [2014] JOL 31473 (GSJ)

Contract Construction agreement Builder’s lien.

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Maurice Leas t/a Build4You v Van Kerckhoven & another [2008] JOL 21875 (W)

This is an exception taken by the defendant to the plaintiff’s particulars of claim. The cause of action is alleged to have arisen from an oral agreement.

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Johnny Bravo Construction CC v Khato Consulting Engineers CC [2015] JOL 33599 (FB)

The application was for enforcing an interim payment certificate which the respondent refused to pay

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Gerolemou / Thamane Joint Venture v AJ Construction CC and others [1999] JOL 4869 (T)

Court to decide that disputes in a pending arbitration be adjudicated at a later stage

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Ferox Investments (Pty) Ltd v Blue Dot Nursery CC t/a Jasmine Plant & Bird Centre [2004] JOL 13376 (O)

Terms of a lease agreement, the applicant, having bought the property from the original lessor, after taking over the property, the applicant notified the respondent of its intention to cancel the lease as a result of damage to the premises.

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Bosch Munitech (Pty) Ltd v Govan Mbeki Municipality [2015] 4 All SA 674 (GP)

Performance in terms of a formally defective agreement is made without legal ground and recoverable by means of an enrichment action.

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Abajabuli Project Services CC v Uthukela District Municipality [2019] JOL 45296 (KZP)

The appellant stated that while the work was in progress, the respondent terminated the contract unlawfully.

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Listed below are some of the South African legislation commonly used in the construction industry. It is always advisable to consult with a legal professional if you suspect that there might be a material breach of any of the provisions of any of these Acts.

Consumer Protection Act, No. 68 of 2008

The Consumer Protection Act 68 of 2008 aims to to promote a fair, accessible and sustainable marketplace for consumer products and services and for that purpose to establish national norms and standards relating to consumer protection, to provide for improved standards of consumer information, to prohibit certain unfair marketing and business practices, to promote responsible consumer behaviour and to promote a consistent legislative and enforcement framework relating to consumer transactions and agreements.

National Building Regulations and Building Standards Act, 103 Of 1977

This Act was promulgated to to provide for the promotion of uniformity in the law relating to the erection of buildings in the areas of jurisdiction of local authorities; for the prescribing of building standards; and for matters connected therewith. In short, the aim is the promotion of uniformity in the law relating to the erection of buildings.

Occupational Health and Safety Act No. 85 of 1993

The Occupational Health and Safety Act provides for the health and safety of persons at work and for the health and safety of persons in connection with the use of plant and machinery; the protection of persons other than persons at work against hazards to health and safety arising out of or in connection with the activities of persons at work; to establish an advisory council for occupational health and safety; and to provide for matters connected therewith.

Prevention and Combating of Corrupt Activities Act No. 12 of 2004

The Act intends to provide for the strengthening of measures to prevent and combat corruption and corrupt activities; to provide for the offence of corruption and offences relating to corrupt activities; to provide for investigative measures in respect of corruption and related corrupt activities; to provide for the establishment and endorsement of a Register in order to place certain restrictions on persons and enterprises convicted of corrupt activities relating to tenders and contracts; to place a duty on certain persons holding a position of authority to report certain corrupt transactions and to provide for extraterritorial jurisdiction in respect of the offence of corruption and offences relating to corrupt activities.

 

Sectional Titles Schemes Management Act, No. 8 of 2011

The Sectional Titles Schemes Management Act 8 of 2011 aims to provide for the establishment of bodies corporate to manage and regulate sections and common property in sectional titles schemes and for that purpose to apply rules applicable to such schemes; to establish a sectional titles schemes management advisory council; and to provide for matters connected therewith.

 

Small Claims Courts Act, No. 61 of 1984

Small Claims Courts offer a quicker and easier way of resolving certain civil disputes that involve amounts up to R20 000. You do not need a lawyer to represent you at a Small Claims Court, although you might want to consider the assistance of a professional entity, such as the BDTSA, to assist you with your preparation and presentation of your case.