The construction industry increasingly relies on adjudication as a fast and cost-effective way to resolve disputes under complex infrastructure contracts. As this mechanism matures in South African practice, courts are often called upon to define its boundaries—especially when a disappointed party challenges the process or outcome. The recent decision of the Western Cape Division of the High Court in Eskom Holdings SOC Ltd v Framatome and Another provides a timely opportunity to examine how South African courts are enforcing adjudication and to reflect on its evolving role within the broader dispute-resolution landscape.
Background
The dispute arose from a major infrastructure project at Koeberg Nuclear Power Station—South Africa's only nuclear plant, which accounts for roughly 1,860 MW of generation capacity. Eskom entered into an NEC3 Engineering and Construction Contract with Areva NP for the replacement of six steam generators (three per reactor unit). Areva later ceded the contract to Framatome.
When Eskom postponed the planned works and instructed Framatome to stop, Framatome classified this as a compensation event under the NEC3 and submitted an associated cost claim. The Project Manager rejected the claim, prompting Framatome to refer the matter to adjudication as agreed under the contract.
The adjudicator issued two decisions. The first addressed the merits and found that Eskom's actions constituted a compensation event, entitling Framatome to additional time and money. The second determined the quantum payable. Eskom challenged both decisions, alleging that the adjudicator had exceeded his powers, failed to follow fair process, and had failed to provide adequate reasons. Framatome opposed the application and filed a counter-application seeking enforcement of the adjudicator's decisions and payment of the amounts awarded.
The Court's Findings
The Court dismissed Eskom's application and granted the relief sought by Framatome. The key aspects of the judgment include:
- Wide inquisitorial powers under clause
W1.3(5).
Clause W1.3(5) empowers an adjudicator to issue instructions to any "Party" (including the Project Manager) and to take "any other action" necessary to reach a decision. The court held that these powers are intentionally broad. Issuing instructions on quantum and directing the Project Manager to undertake a fresh assessment fell squarely within this mandate.
- No functus officio after the merits
decision.
The adjudicator remained seized of the dispute until the process set out in his merits decision, including the determination of quantum, was complete. Eskom's Notice of Dissatisfaction preserved its right to arbitration but did not terminate the adjudicator's mandate.
- Adjudication is contractual—not a common-law
process.
Adjudication under NEC3 is a creature of contract. Unless the parties expressly incorporate common-law requirements, the adjudicator need only follow the contractual procedure. The court went further noting that even if natural-justice principles applied, Eskom failed to participate meaningfully despite multiple invitations and therefore could not complain about unfairness.
- Adequate, reasoned quantum award.
The 23-page quantum decision traced the contractual route to compensation, explained the use of agreed "benchmark rates," and detailed why the revised figures fairly reflected Framatome's entitlement. Eskom provided no counter-calculation despite having three opportunities to do so. The court found the reasons sufficient and described Eskom's criticism as contrived.
- Enforcement is immediate.
Consistent with Supreme Court of Appeal authority, the court reaffirmed that adjudicators' decisions are binding and enforceable immediately, pending final determination by arbitration or litigation. Courts will interfere only in rare circumstances.
Implications
The judgment reinforces three practical lessons:
- Engage fully — A party that boycotts an adjudication risks an adverse, and immediately enforceable, decision.
- Respect the contract — NEC3's tight timelines and inquisitorial features are deliberate; courts will not rewrite them.
- Expect limited judicial intervention — Challenges based on errors of fact, law, or procedure seldom succeed unless they concern jurisdiction or breach an express contractual term.
A Broader Perspective
The decision aligns with a series of Supreme Court of Appeal judgments upholding contractual dispute mechanisms and underscores adjudication's role as a cash-flow tool. Its importance is highlighted by recent labour-force data: according to Stats SA's Quarterly Labour Force Survey, the construction sector added 176,000 jobs between Q2 and Q3 2025—the largest gain across all industries. As South Africa transforms into what government officials describe as "one vast construction site," robust adjudication processes remain vital for maintaining project momentum and protecting stakeholder interests.
Conclusion
Eskom v Framatome confirms that South African courts will enforce adjudication decisions swiftly and robustly, provided the adjudicator acts within the four corners of the contract. Parties tempted to "scrabble around" for reasons to avoid payment, without fully engaging in the process, do so at their peril.
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