Settlement of Construction Disputes in Zimbabwe

Clause 69 of the Zimbabwe General Conditions of Contract for use in connection with Works of Civil Engineering Construction Fourth Edition (1984) ZGCC.4 provides for the settlement of disputes or differences arising from or in connection with works of civil engineering construction in Zimbabwe. It details three distinct sequential mechanisms for dispute resolution.

Clause 69.1: The Engineer's Decision

In terms of clause 69.1 of the Zimbabwe General Conditions of Contract (ZGCC4) where any dispute or difference of any kind arises between the Employer or the Engineer and the Contractor in connection with or arising out of the Contract or the carrying out of the Works, such disputes should be referred to and settled by the Engineer who should state his or her decision in writing and give notice of the same to the Employer and the Contractor.

The decision of the Engineer is regarded as final and binding upon the Employer and Contractor in terms of Clause 69.1 of the ZGCC.4 and should be given effect by the Contractor who should proceed with the Works with all due diligence, whether or not notice of dissatisfaction has been given. Pending the determination of a challenge to the Engineer's ruling, execution of the works must not pause.

Clause 69.2: Mediation

In terms of clause 69.2 of the ZGCC4, where an Engineer fails to render his or her decision within a period of 28 days after being requested to do so, or if either the Employer or the Contractor is dissatisfied with any decision of the Engineer, then such matter can be determined by means of mediation.

The purpose of a notice of dissatisfaction is merely to inform the other party within a specified, limited period that the decision of the Engineer is not accepted as final and binding. As noted by the Supreme Court in Kwekwe Municipality v Imprecon (Pvt) Ltd 1983 (2) ZLR 101 (SC) 108:

“When notice of dissatisfaction has been given either by the Employer or the Contractor the matter is referred in the first place to the Mediator and then finally to arbitration.”

Clause 69.3: Arbitration

In terms of clause 69.3 of the ZGCC4, if the Employer or Contractor is unwilling to accept the mediation or is unsatisfied with or unwilling to accept the opinion expressed by the mediator, such dispute or difference can be resolved by arbitration. see Rhodesia Electricity Supply Commission v Joelson Brothers and Bardone (Pvt) Ltd 1977 (4) SA 639 (R).

The High Court in Conforce (Pvt) Ltd v City of Harare 2000 (1) ZLR 445 (HC) observed that:

“The agreements were governed in certain terms by the terms embodied in the General Conditions of Contract, a standard set of terms applicable to works in civil engineering constructions. In terms of clause 69.3 of the General Conditions of Contract, any dispute between the parties would be settled by arbitration if attempts at mediation failed. Disputes indeed arose in respect of all the agreements. The disputes were about claims for delays and damages and they were of a similar nature. Mediation must have failed.”