Frequently Asked Questions (FAQs) about Adjudication of Construction Disputes in Zimbabwe

1. What is adjudication?
Adjudication is an alternative dispute resolution mechanism, which was introduced in the construction sector in Zimbabwe as a speedy mechanism of settling many standard – form construction contracts on a provisional interim basis.

2. Is adjudication statutorily prescribed in Zimbabwe?
No. In Zimbabwe the process of adjudication is contractual and not statutorily prescribed as in other countries which include but are not limited to Australia, Canada, England and Wales, Malaysia and Singapore.

3. What is the purpose of adjudication?
The Supreme Court of South Africa in Radon Projects (Pty) Ltd v NV Properties (Pty) Ltd 2013 (6) SA 345 (SCA) set out succinctly the purpose of adjudication, when it referred to the leading case of Macob Civil Engineering Ltd v Morrison Construction Ltd [1999] BLR 93 (A) at 97 where it was held that:

“A speedy mechanism for settling disputes [under] construction contracts on a provisional interim basis and requiring the decision of Adjudicators to be enforceable pending the final determination of disputes by arbitration, litigation or agreement… But Parliament has not abolished arbitration and litigation construction disputes. It has merely introduced an intervening provisional stage in the dispute resolution process.”

4. What is a dispute?
There is no magic in the term ‘dispute’. Neither does it have any special or unusual meaning, and should be given its normal meaning. According to leading scholar, Davison Kanokanga, Commercial Arbitration in Zimbabwe (Juta & Co, Cape Town, 2020) at 31:

“A dispute is a disagreement or an agreement between parties: there is no limit to the number of persons who must be involved in the dispute in order for it to be arbitrable. Suffice it to say that the dispute must be between two or more persons, whether natural or artificial.”

5. Is adjudication unique as a dispute resolution mechanism?
Adjudication as an accelerated form of dispute resolutions is sui generis and unique to the construction industry as it is dictated by business convenience and the need to efficiently and effectively resolve disputes. Put different adjudication is unique as a dispute resolution mechanism due to the fact that it is an intervening, provisional stage in the dispute resolution process.

6. Is adjudication the same as arbitration?
No. Whilst adjudication and arbitration are both alternative forms of dispute resolution, the two concepts are not the same. Leading authors, J Riches & C Dancaster, Construction Adjudication (Wiley 2008) at p11 observed that:

“Construction industry adjudication is thus a unique process. it is not adjudication as judges and arbitrators know it. It is far wider than that. It is also not mediation or conciliation. It is not expert determination, although it probably remains closer to this form of dispute resolution than any other. It is not arbitration. It is certainly note litigation.”

7. Is adjudication of construction disputes common in Zimbabwe?
Although adjudication is not regulated by any statute in Zimbabwe at present, adjudication of construction disputes is fast growing in the country and has become common as it is contractually provided for in many standard – form documents drawn up by the National Joint Practice Committee (NJPC).

8. How are construction disputes generally resolved in Zimbabwe?
Construction agreements in Zimbabwe are generally resolved through alternative dispute resolution mechanisms, such as adjudication and arbitration which are incorporated by reference into many standard form contracts based on the National Joint Practice Committee (‘NJPC’) Standard Contracts 2000 and / or the Government of Zimbabwe’s General Conditions of Contract for Construction Works which provides for a multi-tier process of dispute resolution by means of adjudication and arbitration.

9. Adjudication in National Joint Practice Committee (NJPC) Standard Contracts
Users of National Joint Practice Committee (NJPC) standard contracts will find the general terms of adjudication and its procedural rules contained in each copy of the relevant documents. Thus, NJPC standard contracts / documents in Zimbabwe all provide that disputes, in the first instance, are to be adjudicated.

10. What are the common dispute resolution mechanisms in Zimbabwe to resolve construction disputes in Zimbabwe?
In Zimbabwe, the tendency has been to resolve construction disputes by means of arbitration and litigation. For instance, in the case of Zimbabwe Power Company (Pvt) Ltd v Intratek Zimbabwe (Pvt) Ltd SC 127-23 whilst the contract between the parties provided for the resolution of disputes by way of adjudication and arbitration, Intratek Zimbabwe attempted to refer the matter to arbitration in terms of the contract, however Zimbabwe Power Company objected to same, which resulted in the matter having to be resolved by litigation.
However, there has been a growing shift in Zimbabwe dictated by business convenience and the need to speedily and effectively resolve commercial disputes, including construction disputes for disputes to be referred for adjudication and / or arbitration in Zimbabwe.

11. Are there Adjudicator Nominating Boards in Zimbabwe?
Yes. There are some Adjudicator Nominating Boards (‘ANB’) in Zimbabwe. However, disputes will generally be referred to the contractually nominated or mutually agreed board. Some of the bodies include but are not limited to the following:
(a) Alternative Dispute Solutions Centre (‘ADSC’)
(b) Africa Institute of Mediation and Arbitration (‘AIMA’)
(c) Architects Council of Zimbabwe (‘ACZ’)
(d) Construction Industry Federation of Zimbabwe (‘CIFOZ’)
(e) Institute of Architects of Zimbabwe (‘IAZ’)

12. What is an Adjudicator’s Agreement?
An adjudicator’s agreement is essentially an agreement made and entered into between a Contractor, Employer (‘the Parties’) and Adjudicator in terms of which an Adjudicator is appointed to resolve a dispute which has been referred to him or her.

13. Who can refer a dispute to adjudication in Zimbabwe?
Either party to the contract i.e., Employer or Contractor can refer a dispute to adjudication in terms of the relevant dispute resolution mechanism provided for the in the agreement. The referral notice known as a Notice of Adjudication (‘NOA’) should be served on the other party and the adjudicator in accordance with the timelines set out in the contract.

14. What sort of disputes can be referred for construction adjudication in Zimbabwe?
The most common issues referred for construction adjudication are breach of contract, payment claims, quality issues, delays and disruptions. Some of the other disputes referred for construction adjudication include but are not limited to: interim payments and final accounts, professional negligence, construction defects, extension of time claims and contract termination.

15. Can you refer multiple disputes to adjudication in Zimbabwe?
Yes. It is possible to refer multiple disputes to adjudication. However, the default position is that only one dispute can and should be referred to an adjudicator at any given time.

16. Are DAAB Agreements recognized in Zimbabwe?
Yes. Dispute Avoidance / Adjudication Agreements ‘DAAB Agreements’ are recognized in Zimbabwe.

17. Is an adjudication decision final?
No, an adjudication decision by an Adjudicator or Dispute Adjudication Board (DAB) is generally not final, as the process of adjudication is merely an intervening, provisional stage in the dispute resolution process of construction disputes.

18. Do parties have any right of recourse against an adjudication decision?
Yes. Parties have a right of recourse to litigation and arbitration. Only a tribunal may revise an adjudication. Thus, an adjudicator’s decision that has not been revised remains binding and enforceable.

19. Is a decision of an adjudicator binding in Zimbabwe?
Yes, the decision of an adjudicator is generally binding on both parties unless and until it is revised by an arbitration award or court judgment, whichever is applicable in terms of the contract. The effect of an adjudicator’s decision, is that it is binding on the parties and has to be given effect until the said decision is overturned in any subsequent litigation or arbitration. see Stocks & Stocks (Cape) (Pty) Ltd v Gordon & Others NNO 1993 (1) SA 156 (T).

20. Is an adjudicator’s decision enforceable in Zimbabwe?
Yes. An adjudicator’s decision is enforceable in Zimbabwe pending the final determination of disputes by arbitration, litigation or agreement.

21. Does an adjudicator render an award?
No. An adjudicator is not an arbitrator and therefore does not render an award. An adjudicator merely renders a decision, which is also known as a determination.

22. Is an adjudicator’s decision enforceable by the Court in Zimbabwe?
Yes. The decision of a Dispute Adjudication Board (DAB) or adjudicator’s decision is capable of enforcement by the court in Zimbabwe as a claim for specific performance of a contractual obligation. see Onel Electrical Engineers (Pvt) Ltd v Unki Mines (Pvt) Ltd HH 492-19.

23. What is the purpose of a notice of dissatisfaction?
The purpose and importance of a notice of dissatisfaction in construction adjudication was considered in Transport for Greater Manchester v Kier Construction Ltd [2021] EWHC 804 (TCC) at para 43 as follows:

“The Contract did not stipulate the form of words that had to be used, or the level of detail that was required in any notice of dissatisfaction. The purpose of the notice was to inform the other party within a specified, limited period that the adjudication decision was not accepted as final and binding. A valid notice would have to be clear and unambiguous so as to put the other party on notice that the decision was disputed but did not have to condescend to detail to explain or set out the grounds on which it was disputed”

24. Does a notice of dissatisfaction suspend an adjudicators decision?
A notice of dissatisfaction pending arbitration, on its own, precludes any judicial review of the adjudicator’s determination. see Ekurhuleni West College v Segal & Another [2020] ZASCA 32.

25. Can courts in Zimbabwe interfere with the decision of Adjudicators?
Only in rare cases will the courts generally interfere with the decision of an adjudicator. The Zimbabwean courts have shown a clear willingness to adopt the robust approach of the courts in England and South Africa with respect to the enforcement of adjudication decisions.

26. Can adjudicator’s decision be challenged?
Yes. It is possible to challenge the decision of an adjudicator. see Thomas – Fredric’s (Construction) Ltd v Wilson [2023] EWCA Civ 1494.