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F.A.Q

Q: With reference to authority, how do we go about appointing an Arbitrator  ?

A: The Arbitrator can be appointed in one of three ways –

I.    By the Parties in Dispute who is acceptable/nominated by both Parties.This could be specifically agreed as to an individual or could also allow for an alternative should the first arbitrator not be available. The appointments are usually based on their experience in the field of potential dispute, their ability to be unbiased and their availability to hear the dispute should it arise. Alternatives could also include options 2 or 3 below on the non-availability of the initial appointee.Arbitrators are usually nominated at the time of entering a contract between parties (such as the JBCC Suite of documents)

II. By a third Party stipulated in the agreement (contract)on request of either party, such as from an appropriate Professional or Business Institution( i.e. : Association of Arbitrators SA or Master Builders Association)

III.By appointment of the Courts where no agreement has been made or the nominated is deceased incapacitated or refuses to act, this appointment through the courts can be done in terms of Section 12 of the Arbitration Act. Application can be made by either party.

(Ref: 23/3/2014 – Arbitration Act (S1-Definitions) Act 42, 1965, SS 9-13 – Arbitrators & Umpires)

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Q?Q : Is there any difference between a Valuation /Certification and Arbitration ?
A.

A :The essential difference between arbitration on the one hand and valuation or certification on the other is that an arbitrator is appointed to resolve a dispute and he does so by hearing both parties in a judicial manner and reaching a decision based on the evidence. In the case of valuation or certification, however, there need not necessarily be a dispute. Often valuation or certification is an arrangement made to avoid a dispute arising.

A certifier or valuer is required to make his assessment on the basis of his own knowledge and expertise. He is not obliged to hear the parties and he is free to make whatever enquiries he wishes to enable him to reach a conclusion. He is chosen for his expertise and obliged to use it to the full.

Consequently, if he is negligent in carrying out his mandate he would be liable to one or other of the parties for any loss or damages that may be suffered by such party.

An arbitrator on the other hand is generally held not to be liable to the parties for negligence

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Q?Do I need Planning Permission?
A.

As a general rule, you will need plans or planning permission for all building work except minor alterations inside your home that do not involve structural work. Check this first with your local authority as each area has different requirements. A phone call or personal visit to your local authority at the outset can save you a lot of problems later on. Where any special structural design is involved, you may also require the services of a structural engineer. Please allow for municipal submissions in your budget

Q?Who is responsible for Insurance during the contract ?
A.

Before starting any work, check that your building contractor is covered by appropriate insurance, such as Public Liability,Workman’s Compensation and Contractors All Risks Insurance.

Its essential to inform your own insurance company.If your having extensions or renovations done to make certain that you have suitable insurance cover.

As a general rule ,during renovations on an existing House, the home-owner is responsible for covering Works Insurance.Where the builder is obliged to carry the Works Insurance cover please note that the JBCC Contracts generally stipulate that at Practical Completion stage ,the Owner assumes this responsibility.

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Q?How do we go about choosing a Builder for our Home Renovation?
A.

If you don’t know a suitable building contractor, talk to friends or neighbour’s that have had building work done. Better still – contact the Kwa Zulu Natal Master Builders & Allied Industries Association, & ask them for a list of members operating in the area who can do the type of work you will need done.

Many building & contracting firms carry out good work and give value for money, but there are always the few who will promise the earth at unrealistic prices. These people are often just looking for a “quick buck”. Sometimes they don’t employ qualified tradesmen and in the end, don’t deliver the quality or goods.

The original price may seem a bargain, but the eventual costs is often more than the initial quotation from a reputable building contractor, not to mention the stress of chasing an elusive an “builder” who wont finish the job properly.

Always ensure that you have a written quotation (contract) in place ,signed by both parties ,that not only stipulates exactly what work is to be done,but also refers to the Drawings and Specifications that are understandable.There are good contracts available such as the JBCC Minor Works or the MBA Small works and Houses Contracts which are both recommended.The Dispute resolution clause is also important – and remember,don’t start any building alterations etc without APPROVED PLANS from your Local Authority.

Q?In what circumstances can we render a valid contract voidable ?
A.

There are 3 Circumstances that make a contract voidable.
Voidable Contract – A contract that has legal effect and force when it is made, but is liable to be subsequently annulled or set aside by the courts through the process of rescission.

1.Duress(force,threats,Fears)

2.Misrepresentation (Including fraudulence and negligence)

3.Mistake (Unilateral,Common,Mutual)

Reference :
The Law of Contract – 6th Edition Christie –
The Law of Contract in South Africa –Hutchinson 2 nd Edition
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