How the JBCC PBA aids construction management in South Africa

Below, we explain what the JBCC PBA is and explore the provisions most relevant to construction management, with a particular focus on programme obligations, the principal agent’s powers, culpable delay, party engagement, and dispute resolution.

For both employers and contractors, understanding these provisions is essential to navigating the JBCC framework effectively.

What is the JBCC PBA?

The JBCC PBA is the most widely used standard form contract in South African construction projects. Its enduring popularity stems from a structured approach that balances contractual risk, procedural clarity, and legal enforceability, making it a trusted form for both public and private sector developments.

Provisions relevant to construction management

Obligations regarding programme and construction information

Clause 12 of the JBCC PBA sets out the contractor’s obligations regarding the programme and construction information. The contractor is expected to act proactively and is required to regularly submit progress reports – i.e. on actual work carried out versus planned work – and an updated schedule of outstanding construction information, highlighting dependencies on the employer or principal agent, to the principal agent. They must also agree the state of progress relative to the programme and maintain daily records of personnel and equipment.

In practice, these provisions are critical for tracking performance, forming the basis for identifying and assessing delays. Failure to comply may constitute a specified default under Clause 29.1.3, potentially triggering termination rights. The principal agent relies on these submissions to assess progress and issue instructions, making them central to effective construction management.

Challenges for contractors in terms of these obligations include, amongst others:

• ensuring timely and accurate submission of progress reports, which can be administratively demanding, especially on complex projects;
• miscommunication or lack of clarity in the level of detail and reporting required by contractors, which can lead to disputes regarding project status;
• lack of resources or systems to maintain comprehensive daily records, which we have seen in practice, which often leads to difficulties in managing projects, notwithstanding that often employers and principal agents could provide clearer direction and certainty on the level of detail they want to see in the reports.

As for employers, the administrative burden placed on contractors is not often well understood and contractors often do not fully cater for dedicated personnel to manage these obligations. Contractors often view these requirements as overly rigid and as a distraction from on-site productivity, when in fact the reporting and requirements are designed to operate to protect both parties’ interests.

Principal agent’s instruction powers

Clause 17.1 of the JBCC PBA provides a closed list of permissible contract instructions that the principal agent may issue. These include instructions regarding the provision of construction information, correction of defects, and compliance with statutory requirements. Importantly, the principal agent’s powers to issue instructions are limited to those included in this list and do not extend to instructions to accelerate the works or to change the sequence of execution. The importance of this clause cannot be underestimated, as a failure to comply with a Clause 17 contract instruction can lead to material breach, withholding or suspension of payment to the contractor, and the employer’s entitlement to terminate the contract for such failure.

This limitation is often misunderstood. As clarified in the JBCC advisory note on Clause 17.0, the principal agent cannot unilaterally instruct acceleration or re-sequencing of the works. Such instructions would require a formal amendment to the contract or an agreement between the parties. This protects the contractor’s right to claim for delays and ensures that acceleration is treated as a commercial arrangement rather than a unilateral directive.

While this Clause seeks to: protect contractors from arbitrary or excessive instructions; ensure that any significant changes are properly negotiated and documented, and; promote contractual certainty and reduce the risk of instructions beyond the scope of the powers given to principal agents, these limitations can lead to practical challenges. These practical challenges include that disputes may arise if the principal agent attempts to issue instructions outside the closed list. Such disputes would relate to whether or not the principal agent had powers to issue certain instructions. The need to negotiate significant changes to the contract can entail time-consuming negotiations and often limits flexibility to respond quickly to unforeseen site conditions.

Culpable delay and rate of progress

The JBCC provides for a pre-defined list of events which, upon their occurrence, may entitle the contractor to a revision to the date for practical completion. Any delays which do not fall within the justified causes listed in the JBCC are considered to be the contractors’ risk.

Determining culpability for delay can be contentious. It often leads to disputes and requires expert evidence. Even in circumstances where the contractor is in culpable delay, the JBCC does not empower the principal agent to instruct an increase in the rate of progress. This is often seen as a barrier in addressing delays, with no ability to instruct acceleration where possible, which negatively impacts the project and can prolong project timelines.

The contractor’s obligation is to perform diligently and in accordance with the programme. If the contractor fails to do so, one remedy available to the principal agent is to issue a notice of default, under Clause 29.2. Potentially, another option might be terminating the agreement, under Clause 29.1.3.

Attempts to compel acceleration or reach a commercial arrangement through contract instructions are not supported by the JBCC framework. In practice, we have seen that such instructions may be challenged as beyond the scope of the principal agent’s powers and unenforceable, unless expressly agreed to by the contractor in a sperate agreement or contract amendment.

Regular engagements between the parties

The JBCC PBA relies on regular engagements and collaboration between the parties, although it does not expressly prescribe a fixed schedule for this. Without a prescribed or agreed schedule, parties may neglect regular meetings, leading to communication breakdowns. However, Clause 12.2.9 requires agreement on progress, which implies ongoing dialogue and an exchange of documentation. Clause 30, dealing with dispute resolution, also encourages amicable settlement before escalation. This can be achieved through negotiation and dialogue and a general aim to preserve the amicable working relationship. 

In practice, weekly site meetings and progress reviews are common, and the JBCC supports this through its emphasis on collaboration and transparency.

Dispute resolution: a three-tiered mechanism

Clause 30 of the JBCC PBA provides a structured, three-tiered dispute resolution mechanism:

• Tier one is amicable settlement;
• Tier two is adjudication;
• Tier three is arbitration. 

Although this tiered approach ensures that disputes are resolved expeditiously, allowing the project to continue with minimal disruption, it may often prolong final resolution of disputes.

The emphasis on amicable resolution aligns with the JBCC’s ethos of fairness and efficiency. The importance of resolving disputes while the project is ongoing cannot be overstated.