Enforcing Adjudication Decisions in the Zimbabwean Courts

The construction industry in Zimbabwe is one of the foremost drivers of the country’s economic growth. Whilst Zimbabwe does not have any specific or particular legislative enactment that governs or regulates construction adjudication, this unique process of adjudication which is a provisional or interim alternative dispute resolution mechanism, designed as a speedy mechanism for the settling of construction contract disputes before an adjudicator, pending the final determination of disputes by arbitration, litigation or agreement has been adopted in Zimbabwe and features prominently in many of the standard forms which have been drawn up by the National Joint Practice Committee (‘NJPC’) Standard Contracts 2020 which are based on the Federation Internationale des Ingénieurs Conseils (FIDIC) Contracts for use in Zimbabwe.

Over the past few years, there has been a strong performance in the construction and engineering industry in Zimbabwe which has been attributed to numerous public infrastructure projects implemented by the Second Republic. The demand for constructions services is further expected to grow.

The Zimbabwean construction industry, like other construction industries in developing countries, experience similar or common issues in relation to construction contracts, which require an efficient, interim determination, which is capable of enforcement pending the final determination of disputes by arbitration, litigation or agreement.

Some of the most common referred issues for construction adjudication in Zimbabwe include but are not limited to breach of contract, payment claims, quality issues, delays and disruptions. It is also common to find issues relating to: interim payments and final accounts, professional negligence, construction defects, extension of time claims and contract termination also being referred to adjudication.

Unlike South Africa which has developed a rich body of jurisprudence concerning adjudication, the courts in Zimbabwe have not had many occasions to consider construction adjudication in Zimbabwe.

The courts in Zimbabwe have found construction adjudication to be a unique process, which is different from mediation, conciliation and arbitration. The High Court of Zimbabwe has on two separate occasions stressed the raison d’être of adjudication decisions, which is to ensure the speedy mechanism for settling disputes in construction contracts on a provisional basis and requiring the decisions of adjudicators to be enforced pending final determination of disputes by arbitration, litigation or agreement.

The superior courts have recognised that the whole purpose of adjudication would be frustrated if a successful party is not able to enforce the determination of an adjudicator. The High Court of Zimbabwe has in principle determined that an adjudicator’s decision is enforceable in Zimbabwe as a matter of contractual obligation between the parties. Thus, the enforcement of a decision of an adjudicator in Zimbabwe is in essence a claim for specific performance which has to be made to a competent court of law.