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By Roelf Nel (Director) and Mashadi Motsogi (Legal Practice Manager)


Master Builders South Africa (MBSA) is a national representative body in the building and construction industry in South Africa and represents its members on national bodies and lobbies national government on legislative and other policy issues.

The Master Builders South Africa (MBSA) has developed a number of model agreements for a variety of applications such as the Master Builders South Africa (MBSA) Domestic Subcontract Agreement, March 2014 Edition, which is intended for use in conjunction with the Joint Building Contracts Committee (JBCC) Principal Building Agreement Edition 6.1 – March 2014.

This article will explore some of the concepts found in the Master Builders South Africa (MBSA) Domestic Subcontract Agreement, such as the contractor’s instructions, practical completion, defects liability period and final completion. 

Contractor’s instructions

Contractor’s instructions comprise of instructions that are communicated by the contractor to the subcontractor regarding a range of events, which relate to the subcontract construction works. These instructions are listed in clause 17.1 of the MBSA Domestic Subcontract Agreement and include instructions pertaining to the site (cl. 17.1.3), the compliance with the law, regulations and bylaws (17.1.4), the rectification of defects (17.1.11), and budgetary allowances and prime cost amounts (17.1.13), amongst a host of other instructions.

Clause 17.2 of the MBSA Subcontract Agreement states that the subcontractor is required to comply and duly execute all contractor’s instructions with due diligence.

In terms of clause 17.3, where the subcontractor fails to adhere to the contractor’s instructions with due diligence, the contractor may provide the subcontractor with a notice to proceed with the instruction within three days from receipt thereof and, where the subcontractor remains in default, the contractor may engage other subcontractors to carry out the outstanding contractor’s instructions.

As a subcontractor, it is thus of paramount importance to note the contractor’s instructions and thereafter ensure to duly execute the instructions with due diligence as communicated by the contractor. Clause 17.5 of the agreement informs us that the contractor’s instructions may only be communicated in writing as the clause states that “oral instructions shall be of no force or effect”.

Therefore, the contractor’s instructions, which are mandatorily required to be in writing, must be executed by the subcontractor with due diligence and to the required state and standard.

Where a contractor insists on providing the subcontractor with oral instructions, these should be rejected by the subcontractor as the agreement clearly states that oral instructions are of no effect.  

Practical completion

In terms of clause 1.1 of the JBCC Principal Building Agreement Edition 6.2 – March 2018 (JBCC PBA), practical completion is defined as “the stage of completion as certified by the principal agent where works or a section thereof has been completed free of patent defects other than minor defects identified in the list for completion and can be used for the intended purpose”.

Clause 19.1.1 of the MBSA Domestic Subcontract Agreement states that the contractor is required to notify the subcontractor regarding the state and standard of completion that the contractor requires of the subcontract works, for practical completion to be achieved. It is therefore essential that the contractor communicates the state and standard of the works that they require from the subcontractor at the commencement of the subcontract works, and it is further the subcontractor’s responsibility to ensure that they clearly understand the state and standards required by the contractor.

Clause 19.2 states that the subcontractor shall liaise with the contractor to make arrangements to attend to the items on the list for practical completion for the subcontractor’s attention and then proceed with due expediency to attend to and complete the required work and notify the contractor as soon as, in the subcontractor’s opinion, the required work has been completed.

Once the items on the list for practical completion have been completed with due diligence and to the contractor’s required state and standard as per clause 19.1.1, the contractor shall forthwith notify the subcontractor when the certificate of practical completion has been issued, and issue to the subcontractor an extract from the list for completion applicable to the subcontract work. 

Defect’s liability period and final completion

In terms of clause 21.2 of the MBSA Domestic Subcontract Agreement, where there are items relating to the subcontract works on the list for completion issued to the contractor by the principal agent in terms of the JBCC PBA or where defects become apparent during the defect’s liability period, the contractor may instruct the subcontractor to progressively attend to such items.

In terms of clause 21.1, the defects liability period commences on the calendar day following the date of practical completion and ends at midnight (00:00) ninety (90) calendar days later or when work on the list for final completion has been satisfactorily completed, whichever is the later.

During the defects liability period, the subcontractor is required to attend to the defects that relate to the subcontract works with due diligence and to the standard required by the contractor. On expiry of the defects liability period, the principal agent shall inspect the works and either issue a list for final completion or a final completion certificate.


For the successful completion of subcontract works, the subcontractor is required to adhere to the contractor’s written instruction and ensure that same is executed with due diligence and according to the state and standard required by the contractor.

Subcontract works that are not executed with due diligence are more than likely to be riddled with defects, which would bar the contractor from reaching practical and final completion of the construction works and will result in the subcontractor having to foot the bill for the expense and/or loss resulting from the continued default by way of contra charges and damages.

It is thus in the subcontractor’s best interests to produce quality subcontract works, and this begins with the subcontractor being familiar with the subcontract agreement and its requirements.