Understanding the role of the Construction Lawyer in projects

03 August 2023

The role of a construction lawyer in South Africa’s construction and engineering sectors is perhaps best understood as that of a multifaceted specialist. In the planning stage, they offer invaluable insights into the types of contracts best suited for a project – be it a re-measurable contract, lump sum contract, a cost-plus contract or more complex arrangements like Public-Private Partnerships (PPPs). Each of these comes with its own set of implications concerning notifications, claims, risk allocation, payment terms, extensions of time, penalties, defects and dispute resolution mechanisms. Understanding these nuances is essential for the project’s long-term viability.

Take, for instance, South Africa’s focus on transport infrastructure. Projects like the modernisation of railway lines or the expansion of road networks often involve multiple stakeholders, including government agencies, local authorities and private investors. In such a diverse setting, the contract serves as the rulebook that governs the project. It outlines not only the technical and design specifications or the financial arrangements but also the legal obligations each party must fulfil. Given the often-complex web of local, national, and sometimes even international regulations that these projects must adhere to and seeing as the contract serves as the foundation of the project, the role of a construction lawyer becomes an integral and indispensable part of any project.

Against this background, it is worth exploring two of the more complex aspects of contract law in the construction industry, namely, procurement arrangements and transaction structures – aspects that lead to a majority of disputes and disagreements if not correctly applied from the outset.

Procurement Arrangements in Construction

Procurement is a vital aspect of the construction industry, encompassing everything from sourcing materials to selecting contractors. The process is aimed at ensuring that projects are executed efficiently, within budget and in compliance with legal requirements. 

There are several approaches to procurement in construction, each with its own merits and challenges:

  1. Traditional Method: Employers hire architects or consultants to design the project, followed by contractor selection via tendering.
  2. Design and Build: The contractor is responsible for both designing and constructing the project.
  3. Management Contracting: A management contractor oversees various works undertaken by several contractors for different parts of the project.
  4. Public-Private Partnerships (PPPs): These involve collaboration between the government and private entities, often used for large infrastructure projects.

Criteria for contractor selection may include financial stability, previous experience and technical capability. Increasingly, sustainability credentials are also considered. Procurement laws may require open tendering processes to ensure fairness and transparency.

South Africa has a robust legal framework governing procurement, including the Public Finance Management Act (PFMA) and the Municipal Finance Management Act (MFMA) for public sector projects. These laws set the rules for procurement, ensuring compliance with national objectives such as empowerment and local content.

Various standard forms of contract are used in South Africa, including the JBCC (Joint Building Contracts Committee) forms of contract, the FIDIC (Federation Internationale des Ingenieurs-Conseils) suite of contracts, the NEC3 and NEC4 (Engineering and Construction Contract) and the GCC (General Conditions of Contract for Construction Works) as published by SAICE (the South African Institute of Civil Engineering). These standardised contracts make it easier for parties to navigate the complexities of construction contracts, but standard clauses are often changed through amendments without a proper understanding of how it compromises or effects the mechanisms of the contractual terms as a whole. Invariably disputes arise necessitating the need for mediation, adjudication, arbitration or court proceedings.

Despite well-defined processes, procurement in construction is not without challenges. Risks such as cost overruns, unpaid payment certificates, delays, variations, defects and contractual disputes require comprehensive knowledge and careful management. Effective procurement strategies, including risk allocation and dispute resolution mechanisms, can mitigate these challenges.

Procurement arrangements are a cornerstone of the construction industry in South Africa, requiring meticulous planning coupled with strict legal and compliance considerations by legal specialists. 

Transaction Structures in Construction

Transaction structures in construction serve as the blueprint for how a project will be executed and financed. Given the complexity and scale of many construction ventures, understanding these structures is crucial for all stakeholders involved. 

In a traditional procurement structure, the employer commissions a design team to develop the project’s blueprints. Upon completion, contractors bid for the project and the employer selects the most suitable candidate. This model is straightforward but can lead to delays if the design requires significant alterations during construction, drawings are not made available timeously or access requirements is not provided on time. It also often leads to disputes as to whether a defect is related to the design or related to the construction of the works.

Design and Build Structure in Construction

A single entity takes responsibility for both the design and construction phases. This approach streamlines communication and can speed up project timelines. It may, however, reduce the employer’s control over design quality.

Engineering, Procurement and Construction (EPC) 

These contracts are comprehensive agreements covering all aspects of project delivery, including design, procurement and construction. These are often used in complex projects like power plants or industrial facilities. The contractor assumes significant risk but has greater control over the project.

Public-Private Partnerships (PPP) 

Increasingly popular for public infrastructure projects, these contracts involve a contract between a public sector authority and a private entity. The private partner typically finances, designs and builds the project and may then receive operating profits for a period before transferring ownership back to the public entity.

Joint Venture

Two or more parties collaborate in partnership to share the risks and rewards of a construction project. This is particularly common in large-scale or high-risk projects where the expertise and resources of multiple entities are beneficial.

Understanding the legal implications of each transaction structure is crucial. Different structures entail varying degrees of risk and require specific contractual protections. South African contract law provides a robust framework for formalising these arrangements, often through the standard forms of contract.

The choice of transaction structure can significantly impact the success of a construction project. From traditional procurement to more collaborative models like PPPs and Joint Ventures, each approach has its own set of advantages and challenges. 

In the intricate landscape of South African construction, a thorough understanding of these structures is indispensable for project success – further justification for ensuring that an experienced construction lawyer is engaged from the very beginning of the project to the end to advise and provide tailored legal solutions and advice for projects where contractual compliance, attention to detail, contract administration, risk identification and regulatory processes are essential for successful project completion and to protect the rights of contracting parties when disputes do arise through mediation,  adjudication, arbitration or court.

By Deonn Fourie | Director

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