Introduction

We all know that construction contracts contain the infamous time bar clauses where contractors should notify the engineer of its intention to claim additional payment and extensions of time for completion.
The required content and formality of such a notice was brought into question in the unreported judgment handed down in the matter between Enviroserv Waste Management v Hawkins Hawkins and Osborne (South) (Pty) Ltd, Eastern Cape Judgment, 2007.

Content of the notice

The court stated that the terms of the contract are designed to protect the interests of the employer and contractor. It provides for measures which enable the work to be done for the benefit of the employer despite the adverse contingencies, and for the contractor to be paid for additional work in appropriate circumstances. The court further stated that a contractor fulfils his obligations if his notice sets out the nature and extent of the claim in sufficient detail and clarity to enable the engineer to make a meaningful decision about what to do about it.

Very importantly the court states that this must be done immediately – during the hurly-burly of doing the work and frequently under the pressure of time constraints – for the good reason that it is necessary to draw the engineer’s attention in writing as soon as possible to seriously adverse factual information relating to the performance of the contract. It further held that this is exactly why no formality is prescribed for the notice, other than the requirement of writing. Obviously this must also be done within the required notice period.

The court holds that all this notice must do is to advise the engineer of the facts. If it does, it is a notice. The purpose of the notice provision is not to prescribe formalities, non-compliance with which will deprive a contractor of a remedy to which he would otherwise be entitled. It remains a notice regardless of whether it also deals with other unrelated matters. It also does not cease to be a notice because it does not refer in so many words to all the circumstances which gave rise to giving notice of the facts, such as why the contractor formed the opinion that additional work was necessary, or what the contractor could reasonably have foreseen.

Conclusion

The issue of the notice is a question of fact, not interpretation relating to the formality thereof. Either the letter gives notice or it does not. If it does, what the parties say or do afterwards is irrelevant, notice was still given. If it does not, nothing that the parties say or do afterwards can change anything.

Written by Niel Coertse, Associate at MDA Consulting

Disclaimer: The content of this newsletter does not constitute legal advice. If you have a specific problem please contact MDA on 011 648 9500, at our Durban office on 031 764 0811 or by email on ncoertse@mdaconsulting.co.za