OUT-LAW ANALYSIS 6 min. read
El Niño could bring extreme heat, drought and water scarcity to South Africa. ChrisVanLennepPhoto/iStock
27 Oct 2026, 1:10 pm
Construction projects across South Africa must prepare for increasing disruption as forecasts point to a potentially severe El Niño event in 2026-27.
Predicted hotter and drier conditions could affect labour productivity, material supply chains, project scheduling and site operations, increasing both delivery risks and project costs.
Prolonged periods of extreme heat, drought and water scarcity have the potential to delay construction programmes, disrupt logistics networks and place additional pressure on contractors seeking to meet contractual milestones. As a result, parties involved in infrastructure and construction projects may need to consider what contractual protections are available where El Niño-related conditions materially affect performance.
The prospect of weather-related disruption raises important questions under standard form construction contracts, including whether the impacts of El Niño could entitle contractors to extensions of time, additional payment or relief from liability for delay or non-performance.
Most standard form construction contracts provide contractors with additional time where exceptionally severe weather causes delays. However, these provisions do not usually entitle contractors to recover the extra costs associated with those delays.
Whether an El Niño-related delay qualifies for schedule relief will depend on the wording of the contract and whether the weather conditions could reasonably have been anticipated when the agreement was entered into. While contractors may receive extensions of time, project owners often bear the indirect financial consequences of the delay.
Projects that are particularly vulnerable to weather-related disruptions may need to set aside an additional contingency, especially where there are extensive earthworks, grading or outdoor construction activities.
Having sufficient flexibility in the project schedule and allowing for the impact of potential weather delays is often more important than the contingency budget itself. Projects with large earthworks and infrastructure elements generally require the greatest allowance for weather-related risks.
El Niño can dramatically affect construction timelines, posing unique challenges for both developers and contractors. Water shortages, extreme heat and the effects of high temperatures on construction materials can all disrupt project delivery during an El Niño event.
Limited water availability may hinder essential activities such as concrete curing and dust suppression, while prolonged heat can affect worker health, reduce productivity and slow progress on site.
A 2024 meta-analysis published in the BMC Public Health journal found that 60% of workers exposed to elevated temperatures experienced significant productivity loss. Modified working hours and slower progress can contribute to project delays, creating additional labour, equipment and operational costs.
As weather patterns become increasingly unpredictable, construction companies are recognising the need to factor climate-related disruption into their workforce planning. Extreme weather can reduce productive working hours through heat-related safety measures, making proactive planning and risk management increasingly important. Severe weather events may also lead to increased absenteeism. These disruptions can drive up labour costs as contractors rely on overtime and accelerated programmes to recover lost time or undertake rework.
Excessive temperatures may also alter the performance of certain construction materials, making them more difficult to apply and potentially affecting the quality and durability of the finished works. Fresh concrete requires careful management under hot and dry conditions because rapid moisture loss can affect curing and finishing.
Extreme heat also accelerates wear on engines, hydraulic systems and electrical components, potentially affecting equipment performance, maintenance requirements and supply chains. The heat brought by El Niño may cause machinery to overheat and require accelerated maintenance cycles.
A key question for parties involved in construction projects is whether disruption caused by El Niño can give rise to force majeure relief under standard form contracts such as the Fédération Internationale des Ingénieurs-Conseils (FIDIC) and New Engineering Contract (NEC) 4.
Force majeure is a contractual mechanism that may excuse a party's non-performance where extraordinary events beyond its reasonable control make performance impossible. To rely on such a provision, the affected party will typically need to demonstrate that the event was unforeseeable and unavoidable, and that reasonable steps were taken to mitigate its effects.
El Niño itself is unlikely to qualify as a force majeure event. As a recognised and recurring climate phenomenon, it is generally foreseeable, meaning parties can anticipate and plan for at least some of its potential effects. However, specific consequences arising from El Niño, such as severe drought, extreme heat, flooding or water shortages, may fall within the scope of contractual force majeure provisions where they materially affect project delivery or prevent contractual performance.
South African law does not generally provide a statutory definition of force majeure. In long-term and relational contracts, parties commonly allocate the risk of unforeseen events through an express force majeure clause. Where no such clause exists, parties may instead seek relief under the common law doctrine of supervening impossibility of performance, which applies where performance becomes objectively impossible due to circumstances beyond the parties' control and without fault on either side.
Neither the FIDIC Red Book 2017 nor the NEC4 Engineering and Construction Contract (ECC) use the term "force majeure". Instead, FIDIC addresses these circumstances through the concept of "Exceptional Events" in clause 18, while NEC4 ECC deals with them through the "prevention" provisions in clause 19.
Under the FIDIC Red Book 2017, "Exceptional Event" replaced the defined force majeure provision contained in clause 19 of the 1999 edition. Although the terminology changed, the substantive requirements remain largely the same. The relevant event must be beyond the affected party's control, not reasonably foreseeable or capable of being provided against when the contract was entered into, not reasonably avoidable or capable of being overcome once it arises, and not substantially attributable to the other party. While the examples provided in the contract differ slightly from earlier editions, they are non-exhaustive.
As a result, the relevant exceptional event is more likely to be a specific consequence of El Niño rather than El Niño itself. Severe drought, extreme heat or water shortages may qualify as Exceptional Events under clause 18 where they satisfy the contractual criteria and prevent the contractor from performing its obligations. Whether this threshold is met will depend on factors including the severity of the conditions, the climatic information reasonably available when the contract was concluded, and whether the effects could reasonably have been avoided or overcome.
Where El Niño-related conditions delay, rather than prevent, performance, contractors may instead look to FIDIC Red Book 2017 sub-clause 8.5(c), which provides relief for unforeseeable exceptionally adverse climatic conditions. To succeed, a contractor would need to demonstrate that the conditions were both unforeseeable and exceptionally adverse, and that they inevitably delayed completion. The assessment will depend on the severity and foreseeability of the conditions, their effect on the construction programme, and compliance with the contract's notice, claims and mitigation requirements. While sub-clause 8.5(c) may entitle a contractor to an extension of time, it does not in itself provide a right to recover additional costs.
NEC4 ECC adopts a different approach. Under clause 19.1, severe weather arising from El Niño may qualify as a prevention event where it could not reasonably have been prevented, was so unlikely that an experienced contractor would not have allowed for it at the contract date, and prevents completion of the whole of the works by the planned completion date. If those requirements are satisfied, the event may constitute a compensation event under clause 60.1(19), potentially entitling the contractor to both additional time and recovery of resulting costs. Depending on the circumstances, clause 60.1(13) may also be relevant.
Whether relief is available under either form of contract will ultimately depend not on the occurrence of El Niño itself but on the nature, severity and foreseeability of its effects, and on whether those effects satisfy the relevant contractual tests.
Potential mitigation includes reducing water losses by ensuring pipelines are installed correctly and minimising losses from deteriorating or leaking infrastructure.
Project teams can also build greater flexibility into construction schedules by allowing extra time for potential delays. They can plan ahead by ensuring critical resources are available and, where necessary, making provision for additional water storage and supply.
Equally important is protecting workers from extreme heat through measures such as providing shaded rest areas, encouraging regular hydration, and implementing heat-management protocols to maintain safety and productivity on site. These measures may include more frequent rest periods or adjusting working hours to avoid the hottest parts of the day, which may in turn affect project schedules.
Since El Niño events occur every two to seven years, it is important to implement post-construction strategies that account for these weather events.
Conducting regular maintenance to identify and rectify El Niño-induced damage to buildings is essential to ensure their long-term resilience. If water availability remains below average for an extended period, water-efficient systems such as greywater recycling and water reuse infrastructure can support more effective water management.
Additionally, incorporating water-efficient features into project designs can help reduce water consumption and improve resilience during periods of drought or limited water availability.
Appropriate provisions for inflation, market volatility and programme risk should be incorporated into bids for projects extending into late 2026 or 2027. This includes adding time buffers for weather-related delays and including appropriate force majeure provisions and weather-related extension mechanisms in project contracts.
Although El Niño creates challenges, it may also incentivise innovation within the built environment sector through the development of more energy-efficient buildings, heat-resilient materials, smarter construction-site monitoring and wider adoption of water-saving technologies.
The construction industry is likely to face increasing pressure to adapt to climate-related disruption, with El Niño highlighting the importance of resilient project planning, contractual risk allocation and long-term asset management.
Co-written by Catherine Diemont of Pinsent MasonsWritten by
