Ad hoc or contractual adjudication introduced a speedy mechanism for settling disputes in construction contracts. The procedure is an intervening, provisional stage in a contractual dispute resolution process that delivers an interim binding resolution of a dispute or disputes. Under the ad hoc adjudication procedure, the dispute is resolved partly through the adjudicators award (which remains binding and enforceable until it is set aside by a tribunal) and largely through the parties promptly implementing that award.

The parties’ obligation to promptly implement the adjudicator’s award is necessarily created through a term of the construction contract. This contractual term is typically enshrined in one of the clauses, in terms of which the parties have committed to participating in the ad hoc adjudication procedure. For example, the New Engineering Contract 4 (June 2017) Option W1.3 (10) provides: “The Adjudicator’s decision is binding on the Parties unless and until revised by the tribunal and is enforceable as a matter of contractual obligation between the Parties and not as an arbitral award”.

South African court procedure has long recognised a contracting party’s right to apply to the high court for an order compelling a recalcitrant party to perform the contractual obligation which that party has either refused or failed to perform. This procedure is commonly referred to as an application to enforce specific performance.

Typically, where a party to an ad hoc adjudication has either refused or failed to implement an adjudicator’s award, the aggrieved party makes application to the high court for an order compelling specific performance of that obligation. In determining an application to enforce an adjudicators award, the court in Murray & Roberts Ltd v Alstom S&E Africa (Pty) Ltd 2020 (1) SA 204 (GJ), observed that “I am alive to the danger that enforcement proceedings should not become a means to use the courts to delay the implementation of a decision, given the scheme of adjudication to which the parties agreed”.

The South African judiciary’s unequivocal support for the ad hoc adjudication procedure was recently again reinforced in Eskom Holdings SOC Limited v Framatome Southern Africa (Pty) Ltd and another (an unreported decision of the High Court Western Cape Division, 5201/23, 17 July 2025). However, notwithstanding our courts’ robust enforcement of adjudicators awards, the simple reality is that enforcement proceedings will inevitably and unavoidably delay implementation of an adjudicators award.

The very point of ad hoc adjudication is subverted when a party to an ad hoc adjudication either refuses or fails to implement an adjudicator’s award and enforcement proceedings become necessary to compel that party to perform its contractual obligation. The key to avoiding this undesirable outcome and unlocking the means to speedy and cost-effective resolution of disputes that ad hoc adjudication enables, does not lie with our courts.

In each standard form construction contract typically applied through the South African construction industry, the ad hoc adjudication system is underpinned with an understanding that an adjudicator is available and accessible to the parties when a dispute arises and that the dispute will be referred for decision when it arises and decided in real time.

Unfortunately, the tendency in the South African construction industry of not having an adjudicator available and accessible through the construction project, stacking disputes often until project close out, participating in and managing the ad hoc adjudication system itself as a quasi-litigious procedure and generally putting our heads in the sand until sometime later, are all behaviours that compound the dispute and motivate a party’s refusal or failure to implement an adjudicators award.

The parties choose these counter-productive behaviours and are equally capable and equipped in terms of the the ad hoc adjudication system to avoid them. In so doing, they will unlock the means to speedy and cost-effective dispute resolution that the ad hoc adjudication system enables.