How To Get Payment Certificates Paid During the Lockdown

The construction industry has come to a standstill as a result of the lockdown. This has severely affected your cash flow. To make matters even worse, the Employer has now failed to make payment of a payment certificate or the Principal Agent has failed to issue a payment certificate in your favour. In this article we will discuss what you can do to enforce your agreement to receive payment.

What can I do to receive payment during lockdown?

During the lockdown period, a dispute can be declared in terms of your construction agreement if a payment certificate has not been paid by the Employer or if the Principal Agent has failed to issue a payment certificate to you. In terms of the JBCC PBA suite of agreements, a written notice must be sent to the Principal Agent. The written notice must set out the disagreement and state that the parties should try to resolve the disagreement within 10 business days. If the disagreement is then not resolved during the 10-business day period, a dispute can be declared which can be referred to adjudication proceedings. Adjudication proceedings is a shortened method of dispute resolution in terms of which an adjudicator makes a binding but not final determination of the dispute between the parties.

Can an adjudicator be appointed during lockdown?

The Association of Arbitrators has recently indicated that they will continue to process applications for the appointment of arbitrators, adjudicators and mediators during the lockdown period. They have further also indicated that adjudications must proceed according to the applicable rules.

With the JBCC suite of agreements, the parties usually specify in the contract data that the Association of Arbitrators will be the nominating body to appoint an adjudicator, and that the latest JBCC adjudication rules will be used during the adjudication proceedings. After a dispute has been declared in terms of the agreement, a party can then apply at the Association of Arbitrators for the appointment of an adjudicator. The adjudication will then be governed by the JBCC adjudication rules.

How does the adjudication procedure in terms of the JBCC adjudication rules work?

The JBCC adjudication rules specify that the following time periods will be followed during the adjudication:

1. The Claimant is to provide its statement of claim as soon as possible after the adjudicator has been appointed;
2. The Defendant is to provide its statement of defence within 10 business days after receipt of the statement of claim;
3. The Claimant can then reply within 5 business days after receipt of the statement of defence;
4. The adjudicator then has 10 business days to provide his determination of the dispute.

Conclusion

It is evident from the discussion above, that if your agreement makes provision for adjudication, that the adjudication procedure can be utilised during the lockdown period to resolve a payment dispute.

You can contact us by e-mail for further advise at: roelf@rninc.co.za