Introduction
Adjudication has become a regular feature of construction dispute resolution across the world in recent years. Conceived as a “pay now, argue later” mechanism, it provides a fast, interim, and enforceable decision. The objective is to allow construction projects to proceed without being stymied by disputes. Unlike arbitration or litigation, adjudication focuses on maintaining project cash flow and commercial certainty. At the same time, it preserves the parties’ rights to pursue a final determination later.
Since its statutory inception in the United Kingdom through the Housing Grants, Construction and Regeneration Act 1996 (HGCRA), adjudication has evolved across jurisdictions. Each legal system has adjusted its enforcement mechanisms to suit its own procedural landscape.
The principle, however, remains consistent: an adjudicator’s decision must be complied with immediately, even if one party disputes its correctness.
This article explores how adjudication enforcement operates in leading jurisdictions around the world. We then take a critical examination of the South African experience. We conclude with practical lessons and suggest opportunities for ensuring that a South African adjudication framework achieves its intended purpose. The purpose being that of keeping projects moving, ensuring payment certainty, and promoting industry confidence.
The Essence of Adjudication and Enforcement
Adjudication is designed as a rapid, interim binding dispute resolution process. Its purpose is not to replace arbitration or court litigation but to provide a timely decision to encourage payment and performance. The adjudicator’s decision is usually binding unless and until it is overturned in later proceedings.
The enforcement of adjudication decisions is what gives the process its effectiveness. Without enforcement, the “pay now, argue later” principle collapses, and adjudication becomes another procedural formality rather than a functional cash‑flow mechanism.
Enforcement typically occurs through summary judgment or statutory registration of the adjudicator’s determination as a debt. The idea is that once an adjudicator has spoken, the paying party cannot delay compliance by disputing the decision’s merits. They must pay first and challenge later.
The United Kingdom Model: The Birthplace of Statutory Adjudication
The UK’s system remains the global benchmark for adjudication enforcement. The HGCRA 1996 established a statutory right to adjudication for qualifying construction contracts. The Technology and Construction Court (TCC)-has since developed a robust jurisprudence upholding adjudicator’s decision.
The landmark case of Macob Civil Engineering Ltd v Morrison Construction Ltd1 laid the foundation for enforcement. Dyson J held that adjudicators’ decisions are enforceable by summary judgment even if they contain errors of fact, law, or procedure, provided the adjudicator acted within jurisdiction. This case established the “pay now, argue later” doctrine that remains central today.
Subsequent authorities such as Carillion Construction Ltd v Devonport Royal Dockyard2 reaffirmed that enforcement should only be refused for serious breaches of natural justice. The Court of Appeal in S&T (UK) Ltd v Grove Developments Ltd3 clarified the relationship between payment notice regimes and adjudication. In it the court confirmed that an employer must pay the “notified sum” before launching a “true value” adjudication. More recently, Bresco Electrical Services Ltd v Lonsdale4 confirmed that even insolvent companies retain the right to adjudicate, provided enforcement is not futile. Together these cases reflect a pragmatic, pro‑enforcement stance, in line with the principles outlined above.
Australia: Divergent East and West Coast Approaches
Australia offers a fascinating variation on the UK model, with Security of Payment (SOP) legislation implemented at the state and territory level. Each jurisdiction has its own statute, but two broad models have emerged:
• East Coast (New South Wales, Victoria, Queensland): adjudicators’ determinations can be filed as court judgments, giving them immediate enforceability as statutory debts.
• West Coast (Western Australia, Northern Territory): determinations are enforceable as contractual rights, meaning a claimant must sue on the contract to obtain judgment.
The High Court in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty5 confirmed that courts have limited supervisory jurisdiction over adjudication determinations. The court asserted that judicial review is generally confined to jurisdictional error. Likewise, in Maxcon Constructions Pty Ltd v Vadasz6, the Court reinforced that adjudication promotes commercial certainty. This applies even at the expense of perfect procedural correctness. These decisions underline the Australian judiciary’s commitment to ensuring that adjudication serves its intended function. The purpose is to maintain cash flow, rather than become bogged down in technical disputes.
Singapore and Malaysia: Structured Hybrid Models
In Singapore, the Building and Construction Industry Security of Payment Act 2004 (SOPA) provides a structured and efficient adjudication regime administered by the Singapore Mediation Centre (SMC). Once an adjudication is determined, it can be enforced as a judgment of the court, with limited grounds for challenge. The courts have consistently upheld this approach, as seen in W Y Steel Construction Pte Ltd v Osko Pte Ltd7. Here, the Court of Appeal emphasised the importance of speedy enforcement to preserve project cash flow.
Similarly, Malaysia’s Construction Industry Payment and Adjudication Act 2012 (CIPAA) reflects the same principles. In View Esteem Sdn Bhd v Bina Puri Holdings Bhd8, the Malaysian courts held that adjudication decisions are binding and enforceable unless successfully set aside on very narrow grounds. Such grounds might include fraud or jurisdictional error. Once again, these countries’ regimes illustrate how legislative clarity and judicial restraint create a predictable enforcement environment.
Other Jurisdictions: Global Expansion of the Model
New Zealand’s Construction Contracts Act 2002 is similar to the UK’s laws. It allows courts to enforce adjudicators’ decisions directly. This focus helps resolve disputes quickly and keeps cash flow in the construction industry. One of the most recent additions to the world of adjudication is Hong Kong. The region has adopted the Construction Industry Security of Payment Ordinance, effective August 2025. This shows its commitment to global best practices through similar statutory adjudication principles. It will be interesting to see how this develops in coming years.
In the Middle East, many countries still rely heavily on contractual dispute resolution and arbitration. However, international standards like FIDIC 20179 (with dispute adjudication boards) are gradually paving the way for statutory adjudication frameworks. The trend is clear: adjudication is moving from a UK‑centric concept to a global norm in construction law.
Comparative Insights: Enforcement Philosophies Across Jurisdictions
Despite differences in legal structure, a few key enforcement philosophies emerge globally:
1) Immediate compliance principle. An adjudicator’s decision must be honoured immediately: payment first, dispute later.
2) Limited grounds for challenge. Courts restrict challenges to jurisdictional errors or serious breaches of natural justice.
3) Interim binding nature. Decisions bind the parties unless and until overturned in arbitration or litigation, reinforcing commercial certainty.
4) Cash flow as the central objective. Whether under HGCRA, SOPA or CIPAA, the overriding goal remains to keep funds circulating through the construction supply chain.
South Africa: Emerging Jurisprudence and Ongoing Challenges
South Africa’s construction industry has increasingly turned to contract‑based adjudication mechanisms. These are often derived from NEC3, FIDIC, or bespoke forms. However, the lack of a statutory adjudication regime has led to inconsistent enforcement and uncertainty.
The South African courts have nonetheless recognised and enforced adjudicators’ decisions under contract. Notable cases include:
- Framatome v Eskom Holdings SOC Ltd10: The Supreme Court of Appeal held that an adjudicator’s decision is binding and must be complied with immediately, even if the losing party intends to challenge it.
- Esor Africa (Pty) Ltd / Franki Africa (Pty) Ltd JV v Bombela Civils JV (2014, GJ)11: The court confirmed that adjudicators’ decisions are enforceable as contractual obligations, not as arbitration awards.
- Murray & Roberts Ltd v Alstom S&E Africa (Pty) Ltd (2015, GJ)12. Reinforced the principle that parties cannot ignore adjudicator decisions; they must comply first and challenge later.
- Aveng (Africa) Ltd v Midros Investments (Pty) Ltd (2011)13: Confirmed that adjudicator decisions are binding in the interim and enforceable by court order until revised in arbitration or litigation.
These authorities reflect a judiciary inclined toward enforcement. But without statutory backing, outcomes depend heavily on contract wording and judicial interpretation. The result is a fragmented landscape – some courts adopt a robust enforcement stance, while others allow broader grounds for resistance.
Recent Development: Slim B & D Construction (2025)
A recent case, Slim B & D Construction (Pty) Ltd v Sinkonde N.O. and Another (2025)14, demonstrates both the progress and remaining obstacles in South Africa’s adjudication enforcement. The dispute involved an attempt by a contractor to delay adjudication through urgent court proceedings. The court criticised this as a tactical manoeuvre intended to obstruct, rather than facilitate, dispute resolution. The judgment reaffirmed the principle that adjudication should not be undermined by procedural gamesmanship, and stressed adherence to agreed timelines and processes.
Practical Challenges and Policy Considerations
Several persistent challenges hinder efficient adjudication enforcement in South Africa:
• Absence of statutory framework: Enforcement currently depends on contract law rather than statutory right, leading to inconsistencies.
• Judicial capacity: The lack of a specialised construction court slows down adjudication‑related applications.
• Insolvency and cash‑flow issues: Balancing the enforcement of adjudication decisions with insolvency principles remains difficult.
• Cross‑border projects: Enforcement across borders is uncertain, especially where project participants are multinational.
Despite these difficulties, the judiciary has shown willingness to adopt international best practices, and the industry continues to advocate for legislative reform.
Lessons from Comparative Jurisdictions
The comparative study reveals several actionable lessons for South Africa:
• Legislative certainty: Introducing a national Security of Payment Act would align South Africa with global norms and promote payment discipline.
• Specialised courts: Establishing a dedicated construction and technology court, similar to the UK’s TCC, would accelerate adjudication enforcement.
• Uniform procedures: A harmonised adjudication framework would prevent divergent interpretations across contracts.
• Digital integration: Leveraging e‑adjudication and electronic filing systems can expedite proceedings, as seen in Singapore and Australia.
Conclusion
Adjudication remains a vital mechanism for maintaining financial stability and efficiency within the construction industry. Across jurisdictions, the message is consistent: Swift enforcement of adjudicator decisions ensures that projects continue and contractors are paid.
South Africa has made progress through judicial support for contract‑based adjudication. However, the absence of a statutory regime continues to undermine predictability. To realise the full benefits of adjudication, and to protect both employers and contractors, South Africa should move toward a statutory model. Ideally this should be supported by specialised adjudication courts and clear enforcement procedures.
Ultimately, the success of adjudication depends not merely on having adjudicators but on ensuring that their decisions carry immediate and reliable legal force. As jurisdictions worldwide have demonstrated, the “pay now, argue later” principle is not just a slogan, it is the heartbeat of a fair, functional, and sustainable construction industry.
Bibliography
Latham Report, Constructing the Team, 1994: (Retrieved November 2025)
The Housing Grants and Construction Regeneration Act 1996: Retrieved November 2025)
Security of Payment Legislation, 1999: (Retrieved November 2025)
Building and Construction Industry Security of Payment Act, 2004: (Retrieved November 2025)
Malaysia’s Construction Industry Payment and Adjudication Act, 2012: (Retrieved November 2025)
New Zealand’s Construction Contracts Act, 2002: (Retrieved November 2025)
Construction Industry Security of Payment Ordinance, 2025: (Retrieved November 2025)
- [1999] EWHC Tech 254 ↩︎
- [2005] EWHC 778 (TCC) ↩︎
- [2018] EWCA Civ 2448 ↩︎
- [2020] UKSC 25 ↩︎
- [2018] HCA 4 ↩︎
- [2018] HCA 5 ↩︎
- [2013] SGCA 28 ↩︎
- [2016] MLJU 1789 ↩︎
- FIDIC, 2017, p.47 ↩︎
- [2021] ZASCA 146 ↩︎
- 38844/11) [2012] ZAGPJHC 54 (11 April 2012) ↩︎
- Case Number 2104/2018 ↩︎
- (3187/05) [2011] ZAKZDHC 14; 2011 (3) SA 631 (KZD); [2011] 3 All SA 204 (KZD) (8 March 2011) ↩︎
- (2025/026408) [2025] ZAGPJHC 717 (8 March 2025) ↩︎