Concurrent Delay in Construction Claims

by Law Blog MPA | Aug 17, 2026 | Contract, Industry Based | 0 comments

Concurrent Delay in Construction Claims: Meaning and South African Legal Context

Concurrent Delay in Construction Claims refers to a situation in which two or more delay events operate during the same material period and independently affect the contractual completion date, typically where one delay is attributable to the employer or an employer-risk event and another is attributable to the contractor or a contractor-risk event.

The concept sounds simple, but genuine concurrency is considerably narrower than two problems merely happening on a construction project at the same time. The important question is whether the competing events each caused, or were capable of causing, critical delay to completion during the same period. The analysis therefore requires careful consideration of the contract, the accepted programme, the critical path, contemporaneous progress records, causation and the legal consequences allocated to each event.

In South Africa, Concurrent Delay in Construction Claims is particularly important when determining whether a contractor is entitled to an extension of time, whether additional costs are recoverable, whether the employer may impose contractual penalties for late completion and how responsibility for an overall project delay should be allocated. Reported South African decisions dealing squarely with true concurrent delay are limited, partly because construction disputes are frequently determined through adjudication and arbitration rather than reported court proceedings. Accordingly, the precise contractual wording remains especially important.

This article considers the position under South African law and common forms of construction contracting. It also addresses practical search questions such as concurrent delay South Africa, construction delay claim South Africa, extension of time concurrent delay, critical path delay analysis, employer-caused delay construction contract, JBCC extension of time, FIDIC concurrent delay and construction delay evidence.

Why Concurrent Delay in Construction Claims Matters

Time has direct financial consequences on a construction project. The contractor generally undertakes to achieve completion or practical completion by a stipulated date, subject to any contractual mechanism permitting that date to be revised. Failure to meet the contractual completion date may expose the contractor to contractual penalties, delay damages, extended preliminaries, additional supervision costs, financing consequences and downstream claims.

Where delay is attributable solely to the contractor, the analysis is comparatively straightforward. Where a qualifying employer-risk event causes critical delay, the contractor may have a contractual entitlement to additional time and, depending upon the contract and event concerned, potentially additional payment.

The difficulty arises when both sides contribute material delaying events.

Consider a project where an employer fails to provide essential structural drawings for three weeks. At precisely the same time, the contractor has insufficient labour on site and would independently have been unable to progress the same critical work. It is not enough for either party simply to point to the other party’s problem. The decision-maker must determine whether each event independently affected completion, for what period, and what the contract says must happen when those events overlap.

That distinction can determine whether the contractual completion date moves, whether penalties are enforceable for the relevant period, and whether the contractor obtains compensation for extended site establishment and preliminaries.

South African construction contracts therefore require a disciplined separation between the questions of time, money and liability for late completion. An entitlement to an extension of time does not necessarily carry an identical entitlement to additional cost.

Identifying True Concurrent Delay in Construction Claims

The starting point is to distinguish genuine concurrency from ordinary overlapping project problems.

Two events are not necessarily concurrent merely because they occurred on the same calendar dates. If the first event delayed an activity that was critical to completion while the second affected an activity with substantial float and no effect on the completion date, the second event may not constitute a concurrent cause of completion delay.

True concurrency generally requires a causal relationship between each relevant event and the delay to completion.

Assume that late employer information prevents commencement of foundation work on the project’s critical path. During the same period, a contractor-owned item of equipment used for unrelated landscaping breaks down. If landscaping has substantial float, the equipment breakdown probably does not compete causally with the late information for responsibility for the project’s completion date.

The position is different if the contractor simultaneously fails to procure the reinforcing steel required for those foundations. Even if the employer had supplied the drawings on time, the absence of reinforcing steel may independently have prevented the foundations from proceeding. The contractor must then confront a genuine causation problem.

A credible critical path delay analysis therefore asks what actually controlled completion immediately before the delay, what event occurred, how the programme logic changed, whether another independent event was simultaneously delaying the same completion milestone, and when each event ceased to have a delaying effect.

This approach is consistent with JBCC guidance. Its extension-of-time advisory material requires a claim to address the cause and effect of the relevant delay upon practical completion and, where appropriate, illustrate that effect by reference to a change in the critical path of the current programme.

A further distinction must be made between concurrent delay, sequential delay and pacing. Sequential delay occurs where one delaying event follows another rather than operating concurrently. Pacing arises where a party slows its own activities because an independent delay means faster performance would make no difference to completion. These situations can produce similar project records but have materially different causation consequences.

South African Common-Law Rules Affecting Concurrent Delay in Construction Claims

There is no single South African statutory rule prescribing how every instance of concurrent construction delay must be divided between employer and contractor. The first source of rights and obligations is consequently the contract itself.

South African contract law generally gives substantial weight to the bargain concluded by the parties. In Beadica 231 CC and Others v Trustees for the Time Being of the Oregon Trust and Others 2020 (5) SA 247 (CC), the Constitutional Court reaffirmed the importance of contractual certainty and pacta sunt servanda, subject to constitutional public policy. Barkhuizen v Napier 2007 (5) SA 323 (CC) similarly demonstrates the significance of agreed contractual time limitations, although their enforcement remains subject to the public-policy enquiry recognised by South African law.

This is important because a construction contract may expressly prescribe how competing causes of delay are to be assessed. A bespoke amendment may provide that an employer event does not generate an extension during a concurrent period of contractor delay. Another agreement may direct the contract administrator to consider all relevant circumstances, including concurrent delays. The contractual outcome cannot safely be assumed from general notions of fairness.

The interpretation of such provisions is governed by the ordinary South African principles of contractual interpretation. Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) requires language, context and purpose to be considered together when attributing meaning to contractual language. This becomes particularly important where expressions such as “delay caused by”, “entitled to an extension”, “concurrent delay”, “critical delay” or “prevention” are disputed.

South African law also recognises important principles concerning employer-caused prevention. In Group Five Building Ltd v Minister of Community Development 1993 (3) SA 629 (A), the Appellate Division considered the consequences of employer conduct that delays contractual performance in the context of a building contract and penalty provisions. Among the principles considered was that, absent an effective contractual arrangement dealing with the situation, an employer should not be permitted to obtain the benefit of a penalty arising from delay that the employer itself prevented the contractor from avoiding.

This does not mean that every employer-caused delay automatically defeats every penalty or gives the contractor unlimited time. Modern construction contracts usually contain sophisticated extension-of-time mechanisms precisely to allocate the consequences of employer-risk and neutral delay events. The correct approach remains to analyse the contract first.

Contract Wording under JBCC, GCC, FIDIC and Bespoke Terms

South African projects frequently adopt standard forms such as JBCC, GCC, FIDIC and NEC, sometimes with extensive project-specific amendments. The Construction Industry Development Board recognises four endorsed forms in the South African construction environment.

Under the JBCC framework, delay to practical completion is addressed through the contractual mechanism for revising the date for practical completion. JBCC’s published guidance emphasises timely notice, reasonable steps to avoid or reduce delay, identification of the contractual event relied upon, explanation of cause and effect, and analysis of the effect upon the current programme and critical path.

That means a contractor pursuing a JBCC extension of time should not merely submit a chronology of events. It should show why the relevant event moved practical completion and identify any contractor-caused event that operated during the same period.

GCC contracts may similarly contain detailed claim mechanisms, but the actual edition, contract data and amendments must be checked. Reder Construction (Pty) Ltd v Minister of Public Works and Infrastructure of the Republic of South Africa and Another [2024] ZAFSHC 300 illustrates a South African construction dispute in which the pleaded contractual machinery expressly contemplated relevant circumstances including concurrent delays or savings of time when determining an extension. The case is useful as an illustration of why the particular contract wording matters; it should not be treated as establishing a universal rule for every South African construction contract.

FIDIC contracts likewise employ detailed claims and extension-of-time machinery. FIDIC’s own published material emphasises that delay entitlement depends on the contractual provisions and timely pursuit of the contractual claim procedure. FIDIC commentary has long recognised that concurrent delay is controversial and that no single approach can simply be assumed without examining the applicable contract and governing law.

Particular Conditions and bespoke amendments are therefore critical. A standard-form clause that appears familiar may have been materially altered. Parties dealing with a FIDIC concurrent delay dispute should always work from the executed contract, not an unamended standard form or an earlier project precedent.

Time Entitlement and Money in Concurrent Delay in Construction Claims

One of the most important distinctions in Concurrent Delay in Construction Claims is the distinction between an extension of time and monetary compensation.

An extension of time answers the question: What should the contractual completion date be?

A monetary delay claim asks a different question: What additional recoverable cost was caused by the compensable event?

Those questions may produce different answers.

Suppose an employer event causes four weeks of critical delay, but the contractor independently causes critical delay throughout the same four-week period. Depending on the contractual wording, governing principles and established causation, the contractor may seek time relief to protect itself against penalties while nevertheless encountering substantial difficulty proving that the employer event caused four weeks of additional cost.

The reason is causation. If the contractor would have remained on site for the same four weeks because of its own delay, it may be difficult to establish that the employer event caused all the additional time-related expenditure claimed.

Conversely, there may be costs directly attributable to the employer event even where the overall completion period is concurrently delayed. Additional design work, abortive work, specific plant standing time or the cost of responding to an employer instruction may require a different factual analysis from general prolongation costs.

Time and money should consequently be pleaded, substantiated and evaluated separately.

This is particularly important for claims for extended preliminaries and general items. South African construction jurisprudence recognises that time-related additional-payment claims can be closely connected to extension-of-time entitlement, but the contractual machinery remains decisive.

The contractor should therefore resist the temptation to assume that “28 days of EOT” automatically equals “28 days of compensation”. The employer should equally avoid assuming that concurrency necessarily eliminates every monetary entitlement. Each cost must be connected to its legal and factual cause.

Notices, Time Bars and Claim Procedure

A strong delay case can fail procedurally if the contractual claims machinery is ignored.

Standard-form construction contracts commonly prescribe notices of delay, supporting particulars, programme information, updated claims and periods within which those materials must be submitted. JBCC’s published extension-of-time guidance, for example, records specific notice and claim periods under its Edition 6 framework.

Parties should therefore identify the relevant clause immediately after a potentially delaying event occurs. The notice should identify the event, reserve the appropriate contractual rights, explain the anticipated impact so far as reasonably possible and comply with the required method of communication and delivery.

Where concurrency only becomes apparent later, updated notices and particulars should address it expressly. Concealing a contractor-caused delay generally does not strengthen an employer-risk claim. A more defensible submission identifies competing events and explains analytically why the claimed entitlement survives them.

The importance of contractual procedure is reinforced by South African constitutional contract jurisprudence. Barkhuizen and Beadica demonstrate that clear contractual requirements cannot ordinarily be disregarded merely because their consequences later become commercially inconvenient, although public policy remains the ultimate constitutional standard.

There is also a separate question of prescription for accrued monetary claims. Group Five Construction (Pty) Ltd v Minister of Water Affairs and Forestry (379/2010) [2011] ZASCA 17 concerned the prescription of additional-payment claims arising from a major construction contract and illustrates the danger of assuming that internal dispute processes indefinitely postpone the legal consequences of an accrued claim.

Contractual deadlines and statutory prescription should therefore be diarised separately.

Evidence Required to Prove Concurrent Delay in Construction Claims

Construction delay disputes are evidence-intensive.

A convincing construction delay claim South Africa file should permit an independent reader to reconstruct what was supposed to happen, what actually happened, which activities controlled completion, what events interfered with those activities and how responsibility was allocated contractually.

The signed contract and all amendments are the starting point. The evidential file should then contain the accepted baseline programme, revised and updated programmes, programme narratives, progress reports, site diaries, instructions, requests for information, drawing registers, notices, meeting minutes, photographs, labour records, plant records, delivery information, subcontractor records and relevant correspondence.

Programme files should ideally be preserved in their native electronic formats rather than only as PDF printouts. Native files allow examination of activity logic, relationships, constraints, calendars, float and contemporaneous updates.

The chronology is particularly important. It should record the planned date for the affected activity, actual progress before the event, the date each alleged delay commenced, when notice was issued, what mitigation steps were considered, when the cause ended, when the activity resumed and how the completion forecast changed.

The objective is not to accumulate documents. It is to create an auditable causal chain.

Contemporaneous records are usually more persuasive than explanations constructed after the project has ended. A site diary prepared every day, an RFI register maintained during performance and a programme updated consistently can provide much stronger evidence than a retrospective statement asserting that the project was “delayed by the employer”.

The same applies to contractor delay. Labour shortages, procurement failures, subcontractor default, defective work and late mobilisation should not simply disappear from the analysis because an employer event also occurred. Where those matters affected the critical path, they must be considered.

Delay Analysis Methods and Critical-Path Causation

Delay analysis is not simply a matter of subtracting the contractual completion date from the actual completion date.

A project may finish 100 days late while a particular compensable event caused only 20 days of critical delay. Equally, a major event may cause disruption and expense but use available float without delaying contractual completion.

The analytical method must therefore fit the available records and the question being answered.

Prospective analyses examine the anticipated effect of an event using programme information available at the relevant time. Retrospective analyses examine what actually happened using completed or substantially completed project records. More sophisticated disputes may involve time-impact analyses, windows analyses, as-planned versus as-built comparisons or other critical-path techniques.

No methodology substitutes for reliable facts.

The Society of Construction Law’s Delay and Disruption Protocol is widely used internationally as guidance on delay analysis and discusses concurrency, programmes, critical paths and the relationship between extensions of time and compensation. It is not South African legislation and does not override the parties’ contract or South African law, but it can provide a useful analytical framework.

The central question remains causation: would the contractual completion date have been delayed by the relevant employer-risk event, having regard to the actual state of the works and any competing delay?

That question should be answered by the evidence rather than by labels.

Employer Delay, Contractor Delay and Contractual Penalties

Concurrent delay becomes particularly contentious when the employer seeks to impose a daily or weekly contractual penalty for late completion.

The first step is to determine the operative completion date after giving effect to every valid revision or extension. A penalty ordinarily cannot simply be calculated from an obsolete original completion date if the contract has validly revised that date.

The second step is to determine whether the contractor was culpably late after the applicable completion date and whether the contractual preconditions for levying the penalty were met.

Employer-caused prevention may also be material. Group Five Building Ltd v Minister of Community Development remains important in the South African construction context because it addresses the relationship between employer-caused delay and the employer’s attempt to rely upon a penalty provision. The ultimate result will, however, depend upon the wording and operation of the extension-of-time mechanism in the particular agreement.

The Conventional Penalties Act 15 of 1962 must also be considered. The Act recognises contractual penalty stipulations, while section 3 permits a court to reduce a penalty where it is out of proportion to the prejudice suffered by the creditor. The enquiry is not confined to direct financial loss; the statutory test refers to the creditor’s broader rightful interests affected by the relevant act or omission.

Concurrency can therefore have consequences at several levels. It may affect calculation of the contractual completion date, the contractor’s exposure to penalties, causation of financial prejudice and, depending upon the case, arguments concerning whether the penalty claimed properly corresponds with the delay for which the contractor is legally responsible.

Managing Concurrent Delay in Construction Claims During the Project

The best time to manage Concurrent Delay in Construction Claims is while the project is still underway.

When an event occurs, the project team should first identify the contractual clause potentially giving entitlement. Notice should then be issued within the prescribed period. The current accepted programme should be preserved before subsequent updates overwrite the project position.

The team should determine which activities were critical immediately before the event and whether another delay was already controlling completion. The effects of each event should be analysed separately before any conclusion about concurrency is reached.

If two critical events overlap only partly, the periods should be separated. For example, an employer event may delay completion for six weeks while a contractor event operates independently during only weeks three and four. The entire six-week period should not automatically be labelled concurrent.

Mitigation should also be documented. A contractor may be contractually required to take reasonable steps to avoid or reduce delay. JBCC’s published extension-of-time guidance expressly refers to reasonable steps to avoid or reduce the relevant delay.

Mitigation, however, should not be confused automatically with acceleration. Increasing labour, introducing additional shifts, resequencing work or paying premium freight may carry substantial costs. Whether those measures are contractually required, voluntarily implemented or constitute compensable acceleration requires separate examination.

The employer, principal agent, engineer or other contract administrator should likewise record the basis of any determination. Simply stating that “the delays were concurrent” is not adequate analysis. The determination should identify the competing events, the relevant contractual provisions, the affected activities, the critical periods and the resulting effect upon time and money.

A structured approach greatly improves the prospects of resolving the issue through contractual determination or adjudication before it develops into major arbitration or litigation.

Conclusion: Resolving Concurrent Delay in Construction Claims

Concurrent Delay in Construction Claims should be treated as a problem of contract, causation and evidence rather than as a slogan that automatically favours either employer or contractor.

The mere existence of two simultaneous difficulties is insufficient. The analysis must establish whether each event independently affected contractual completion, whether the affected activities were critical, the precise period of overlap and the contractual consequence allocated to each event.

South African law gives substantial importance to the terms agreed between contracting parties. The executed contract, including Particular Conditions and amendments, therefore remains the primary source for determining extension-of-time entitlement, claims procedures, monetary compensation and penalties.

At the same time, South African common-law principles concerning employer prevention, contractual interpretation and causation remain relevant. Contractual time bars, statutory prescription and the Conventional Penalties Act may create additional consequences that must be considered separately.

For contractors, the strongest position generally comes from timely notices, credible programme analysis, transparent treatment of contractor-caused delay and detailed contemporary records. For employers, an effective assessment requires more than identifying contractor defaults: employer-risk events and their actual effect upon critical completion must also be evaluated objectively.

In major projects, a reliable concurrent-delay assessment should therefore combine legal analysis, contract administration and technically defensible delay analysis. Early intervention is usually substantially easier than attempting to recreate the critical path after practical completion.

Frequently Asked Questions About Concurrent Delay in Construction Claims

What Does Concurrent Delay in Construction Claims Mean?

Concurrent Delay in Construction Claims describes circumstances where two or more effective causes of delay overlap during the same material period, commonly where one is an employer-risk event and another a contractor-risk event, and both affect contractual completion.

The concept should not be confused with two unrelated events merely occurring simultaneously. The important issue is whether each event independently delayed the completion milestone under consideration.

How Is Concurrent Delay Determined in South Africa?

There is no universal statutory formula. The executed construction contract must first be analysed to determine its allocation of delay risk, extension-of-time mechanism and any express treatment of concurrency.

The factual analysis then considers the accepted programme, actual progress, critical path and causative effect of each event. South African contractual interpretation principles, including those articulated in Endumeni, are used where the wording of the contract is disputed.

Does Concurrent Delay Automatically Give a Contractor an Extension of Time?

No. An extension should not be assumed merely because an employer-risk event occurred during a period when the contractor was also delayed.

The contractual wording is decisive. The contractor must ordinarily prove the qualifying event and its relevant impact upon completion and comply with the applicable claims machinery. Any express concurrent-delay provision must also be applied.

Can a Contractor Recover Money During a Period of Concurrent Delay?

Potentially, but an entitlement to time does not automatically establish an entitlement to money.

The contractor must establish the contractual basis for compensation and prove causation of the amount claimed. If contractor-caused delay would independently have kept the contractor on site for the same period, a general prolongation claim may face substantial causation difficulties. Event-specific costs may nevertheless require separate consideration.

What Is the Difference Between Concurrent Delay and Sequential Delay?

Concurrent delays operate during an overlapping material period. Sequential delays occur one after another.

For example, an employer may delay site access during January and a contractor may subsequently experience a procurement delay during February. Even if both contribute to the eventual late completion, they are not necessarily concurrent. Each period should be analysed independently.

Does an Employer-Caused Delay Prevent the Employer from Claiming Penalties?

It may affect the employer’s entitlement, but the answer depends on the contract and facts.

South African authority recognises the significance of employer prevention in the construction context. Modern extension-of-time provisions may, however, regulate the consequences of employer-caused delay and preserve an adjusted completion date against which penalties can be assessed. Group Five Building Ltd v Minister of Community Development is particularly relevant to this issue.

What Documents Are Needed to Prove Concurrent Delay in Construction Claims?

The most important documents usually include the executed contract and amendments, baseline and updated programmes, progress reports, site diaries, instructions, RFIs, drawing registers, correspondence, notices, meeting minutes, photographs, procurement records, subcontractor information, labour records and plant records.

Their purpose is to establish a reliable chronology and demonstrate the causal impact of each event upon the critical path.

Is a Critical Path Analysis Always Necessary?

For sophisticated construction disputes, critical-path evidence is usually extremely important because delay to an activity is not necessarily delay to completion.

The formality of the analysis should remain proportionate to the project and claim. However, where parties dispute whether competing events independently delayed practical completion, some defensible method of identifying the controlling activities and their movement will ordinarily be necessary. JBCC guidance expressly refers to illustrating relevant cause and effect by reference to the critical path where appropriate.

What Happens If the Contractor Misses the Notice Period?

The consequences depend on the wording of the particular contract and applicable South African law.

Some contractual clauses expressly state that failure to give notice within the specified period causes forfeiture of the claim. JBCC’s published Edition 6 guidance contains such a notice mechanism. South African public-policy jurisprudence must also be considered where enforcement of a time limitation is challenged, but parties should never assume that a missed contractual deadline will simply be excused.

Can Concurrent Delay Be Apportioned Between Employer and Contractor?

The contract may expressly prescribe a method or relevant factors. In the absence of such wording, apportionment should not simply be assumed as a universal South African rule.

A decision-maker should determine the actual causative periods and the contractual consequences attributable to each event. An arbitrary 50/50 allocation merely because two parties contributed to delay may fail to reflect either the factual critical-path analysis or the contractual risk allocation.

Does FIDIC Have a Special Rule for Concurrent Delay?

FIDIC contracts contain detailed extension-of-time and claims mechanisms, but the applicable edition and Particular Conditions must always be reviewed. FIDIC industry material recognises concurrency as a complex subject rather than providing a universal answer capable of being applied independently of the relevant contract and governing law.

A South African project using FIDIC must therefore apply the FIDIC provisions as incorporated and amended by the parties together with South African law.

How Can Parties Reduce Future Concurrent Delay Disputes?

The contract should clearly allocate delay risks and address extensions of time, notices, programmes, compensation, mitigation and penalties. Particular Conditions should be reviewed carefully before execution to identify amendments affecting concurrency.

During construction, programmes should be properly updated, notices issued promptly, causation investigated contemporaneously and both employer and contractor delays recorded objectively. A well-maintained project record often resolves a delay dispute before litigation becomes necessary.

References

Legal authority	Substance	Importance to this article
Group Five Building Ltd v Minister of Community Development 1993 (3) SA 629 (A)	The Appellate Division considered delay, employer conduct and the operation of penalty provisions in a construction-contract setting. The judgment recognised important principles concerning an employer preventing performance and then seeking to rely upon the resulting delay.	It is a significant South African authority when considering employer-caused prevention, extension mechanisms and the enforceability of delay penalties. It cautions against analysing contractor lateness without determining whether the employer contributed legally relevant delay.
Reder Construction (Pty) Ltd v Minister of Public Works and Infrastructure of the Republic of South Africa and Another (4215/2022) [2024] ZAFSHC 300	The dispute arose from a South African construction contract incorporating GCC provisions. The contractual material before the Court included an extension-of-time mechanism expressly requiring relevant circumstances, including concurrent delays or savings of time, to be considered.	The matter illustrates that concurrency may be dealt with expressly by the parties’ contractual machinery. It therefore reinforces the need to work from the executed contract rather than attempting to apply a universal theory of concurrent delay.
Group Five Construction (Pty) Ltd v Minister of Water Affairs and Forestry (379/2010) [2011] ZASCA 17	The Supreme Court of Appeal dealt with additional-payment claims arising from the Injaka Dam construction contract and the question of when those claims became due for prescription purposes.	The case demonstrates that construction claims exist within both contractual claims machinery and South Africa’s broader law of prescription. Project teams should distinguish contractual notice deadlines, dispute procedures and statutory prescription.
Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)	The Supreme Court of Appeal articulated South Africa’s contextual approach to interpretation, under which contractual language is considered together with context and purpose rather than through an isolated literal exercise.	Concurrent-delay disputes frequently depend upon the interpretation of expressions dealing with causation, entitlement, concurrency, extension of time and risk allocation. Endumeni therefore provides the interpretative framework for those clauses.
Barkhuizen v Napier 2007 (5) SA 323 (CC)	The Constitutional Court considered contractual time limitations against constitutional public policy and developed an enquiry addressing both the objective reasonableness of contractual terms and their enforcement in the circumstances.	Construction contracts frequently contain strict time limits for notices and claims. Barkhuizen is relevant where a party contends that a contractual time bar should not be enforced, although it does not provide a general licence to disregard agreed deadlines.
Beadica 231 CC and Others v Trustees for the Time Being of the Oregon Trust and Others 2020 (5) SA 247 (CC)	The Constitutional Court reaffirmed the constitutional importance of pacta sunt servanda, contractual certainty and the enforcement of freely undertaken contractual obligations, subject to public policy.	The decision reinforces the importance of complying with the construction contract’s agreed risk allocation and claims machinery rather than expecting a later appeal to abstract fairness to cure non-compliance.
Conventional Penalties Act 15 of 1962, particularly sections 1 and 3	The Act regulates contractual penalty stipulations in South Africa. Section 3 permits judicial reduction where a penalty is out of proportion to the prejudice suffered, with the creditor’s wider rightful interests forming part of the assessment.	Construction contracts regularly prescribe daily or weekly penalties for late completion. Where concurrent or employer-caused delay is disputed, both the contractual basis of the penalty and the statutory penalty regime must be considered.
Applicable JBCC, GCC, FIDIC, NEC or bespoke construction contract	The executed contract allocates delay risks, defines qualifying events, establishes notice and claim procedures, regulates programme obligations, identifies the decision-maker and determines whether time and monetary relief accompany particular events.	The contract is the primary source for resolving concurrent-delay entitlement. Standard forms are frequently amended, meaning conclusions based on an unamended precedent can be materially wrong. JBCC’s published guidance, for example, expressly requires cause-and-effect analysis and consideration of the critical path for EOT claims.

Useful Links

Southern African Legal Information Institute (SAFLII) provides free public access to South African judgments and is useful for locating the South African authorities governing contractual interpretation, construction disputes, time bars and penalties.

Society of Construction Law – Delay and Disruption Protocol provides detailed industry guidance concerning delay analysis, concurrency, critical paths, extensions of time and compensation. It is not South African legislation or a substitute for the parties’ contract, but it is a useful technical reference when structuring delay analysis.

JBCC – Extension of Time Advisory Note provides official JBCC guidance regarding administration of extensions of time, including notice, mitigation, cause-and-effect analysis and critical-path considerations. It is particularly useful where the project uses the JBCC Principal Building Agreement.

If you would like to know more about construction tenders click here.

If you would like to know more about bid disqualification risks click here

If you would like to know more about certificates of completion click here.

If you would like to know more about retention amounts, click here.

If you would like to know more about how to prevent subcontractor disputes click here.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for errors, omissions, loss, or damage arising from reliance upon any information herein. Don’t hesitate to contact Meyer and Partners Attorneys Incorporated if you require further information or specific and detailed advice. Errors and omissions excepted (E&OE).