LL.M. / Please refer to full text to view abstract

LL.M. / Please refer to full text to view abstract

Despite the numerous advantages that design and build has as a procurement method for construction projects, which have made it the procurement method of choice for construction projects in Europe and North America, not many South African construction companies are making use of it. This study investigates the constraints which are associated with design and build in South Africa. It also seeks to find out how certain performance indicators in construction fare when design and build is used. It then proposes recommendations on how the method can be improved in order to increase its use in South Africa. Data for the study was collected from six major professions in the construction industry including contractors, engineers, quantity surveyors, project owners, project managers and architects in order to give a more balanced view of the problems. Questionnaires, emails and telephonic conversations were methods used to collect the data. Sample t-tests were then conducted on the data using the statistical package, Statistical Analysis Systems (SAS). The results obtained show that there are numerous problems faced in all phases of construction projects when design and build is used as the procurement method of choice in South Africa. Most of the problems are around the issues of inadequate knowledge by project owners in construction, and also the unavailability of manpower to help owners with technical issues. Of the performance indicators investigated, time management and project quality are found to perform poorly. Project owners should deploy their own project managers in the construction process

LL.D. / The purpose and main thrust of this thesis are to consider the nature, aim(s), operation and extent of restitutio in integrum as a remedy where consensus is obtained improperly, where iustus error is successfully raised and where a contract is cancelled as a result of breach of contract. A historical analysis indicates that restitutio in integrum in Roman law is shrouded in uncertainty. Restitutio in integrum was an extraordinary and equitable remedy aimed both at nullification of a valid transaction and the reciprocal restoration of performance rendered. It was granted by the praetor in cases of negotia stricti iuris where no other remedy was available to the aggrieved party, inter alia where metus or dolus led to the conclusion of a contract. Complete reciprocal restoration was the aim and a requirement of the remedy. In cases of negotia bonne fidei, the remedies which were available in respect of specific contracts, dealt with the situation. As the distinction between negotia bonne fidei and stricti iuris faded, the need for an extraordinary remedy lapsed. There is, indeed, a possibility that restitutio in integrum no longer functioned as a separate remedy in the Justinian codification. One would not have expected restitutio in integrum to be available as a separate and extraordinary remedy in the Roman Dutch law of contract due to the fact that the principles underlying the negotia bone fidei won the thy after the reception of the Roman law in Europe. Such availability in that system can be attributed to the fusion which took place between the Roman concept of restitutio in integrum and the indigenous concept of "relief". It can be argued that the Roman Dutch remedy of restitutio in integrum arose from the obligations which the dictates of the bona fides imposed on the parties, whilst considerations underpinning enrichment liability were also raised. Restitutio in integrum was, however, still viewed as an equitable remedy and constituted a single remedy with the double aim of nullification and reciprocal restoration. Unlike Roman Dutch law, modern South African law distinguishes between rescission and restitution. This makes it possible to consider separate bases for rescission and restitution. It is submitted that the competence to rescind a contract in the case of improperly obtained consensus arises from the dictates of the bona fides which the law imposes on parties in the antecedent negotiation and performance of contracts. Problems in respect of rescission must be viewed against the background of rescission as a contractual remedy governed by the dictates of good faith. Subsequent to rescission, no causa retinendi exists in respect of the performance (or its value) which is to be restored and an enrichment remedy is at hand. As far as restitution as a component of restitutio in integrum is concerned, it demonstrates all the characteristics attributed to a developed enrichment action and it can be viewed as such pending the development of a general enrichment action. Restitutio in integrum was not applied in our common law in the instances of mistake and the cancellation of contracts by virtue of breach of contract. Our courts probably referred to restitutio in integrum in those circumstances as a result of the paucity of other authority offered by our common law sources. It is argued that the reliance theory underpins the iustus error doctrine. In the case of iustus error no consensus exists and no reasonable reliance is created by the other party which deserves protection. As no contract exists, performance which has been rendered can be recovered with an enrichment remedy. The "technical concept" of restitutio in integrum also has no role to play in the case of breach of contract. It is submitted that the competence to cancel a contract by virtue of breach of contract also arises from the dictates of good faith. Subsequent to cancellation, no causa retinendi exists in respect of the performance (or its value) which is to be restored and the reciprocal duties to restore are enrichment based. The conclusion is reached that the general principles of our law of obligations have developed and evolved sufficiently to enable us to do without an extraordinary remedy such as restitutio in integrum. The adoption of the suggestions made will place the South African law on a modern basis comparable to the approaches existing in related legal systems which are also reviewed.

LL.M. (Law of Contract) / The parol evidence rule encompasses those rules that regulate the admissibility of extrinsic evidence. The parol evidence rule only comes into play when the court has to interpret a written contract and one of the parties argue that the contract or any specific clause does not reflect the common intention between the parties. The court will then follow a two prong approach in interpreting the contract. The court will firstly utilise the rules of interpretation, including the common law principles regarding presumptions. If this does not clarify the disputed clauses of the contract, the court will then rule on whether extrinsic evidence is permissible and consider such extrinsic evidence in an attempt to determine the common intention of the parties. The rules applicable to the admissibility of extrinsic evidence in the South African law of contract developed from a strict formalistic approach as applied in the Delmas Milling v Du Plessis case to an approach where any extrinsic evidence may be admitted, as long as it is admissible in terms of the rules of evidence and it falls within the category of what Harms DP stated in the KPMG Chartered Accountants (SA) v Securefin Ltd case as “context” or “factual matrix”. The KPMG Chartered Accountants (SA) v Securefin Ltd case finally brought the law applicable to the parol evidence rule in the South African law of contract on par with its American and English counterparts.

Research report (L.L.M. (Coursework))--University of the Witwatersrand, Faculty of Commerce, Law and Management, School of Law, 2014

LL.M. / Please refer to full text to view abstract

M. Tech. Architectural Technology / The South African Council for the Architectural Profession (SACAP) requires that all registered architects clearly set out the terms (as defined by Rule 4.1 of the SACAP Code of Conduct, Board Notice 154 of 2009) of their appointment, before they undertake to perform any architectural work. Although the legally tested professional service agreements conform to the requirements of the Code of Conduct, architects are still reluctant to make use of these contracts. It has become common practice for architects to rely on their own knowledge of contracts to construct self-drafted agreements that are often not legally enforceable, or not to enter in to a client-architect agreement at all. It is the researcher's opinion that architects' knowledge and perceptions of the elements of contract law and the existing client-architect agreements should be investigated in an attempt to encourage the use of established service agreements. The agreement between the client and the architect plays a vital role in setting out the obligations of the parties involved in a construction project. Architects fail to provide their clients with a balanced, equitable and insurable professional service agreement, placing both parties at risk. The architect's authority is not established without a proper contract of agency, and the client does not understand the obligations and the role that the service provider has to undertake to earn his fee. The purpose of this study is to determine the origin and development of contracts of agency in the built environment. The study further aims to establish if the current available client-architect agreements are defined clearly and appropriately, as a legal agreement.

M.Ing.(Engineering Management) / Delays are a major problem faced by construction companies. The majority of the leading delays factors found from reviewing other studies were avoidable delay factors. The avoidable delay factors are factors caused only by the contractor. The reviewed studies gave recommendations for addressing the delay factors; however this study found that projects nevertheless still failing in South African construction industry and other countries even after the various studies made recommendations on how to avoid the delay factors. The objectives of this study were to establish the top ten avoidable delay factors and their mitigation measures in various countries and also to establish which of the proposed mitigation measures for each of the top ten avoidable delay factors were believed to be the answer in South African construction industry. A questionnaire was developed with questions that will probe the respondents to select the mitigation measures that will address each of the ten avoidable delay factors. The option answers were specifically designed to be close-ended. The size of the sample required was 80 and this study managed to get 82 responses. The survey was launched using SurveyMonkey which is an online survey platform. The data received was analysed for reliability and validity. The reliability was determined using Pearson Correlation Coefficient and was applied using the testretest approach. All questions had a coefficient greater than 0.6 which meant that the responses were reliable (strong). The validity was established using face validity. The responses were analysed to establish which mitigation measures have more frequency of selection. Some of the questions had some mitigation measures receiving more than 80% of the selection and some questions had some mitigation measures getting almost the same percentage selection. Most (60%) of the provinces of South Africa agreed on which mitigation measure must be used for addressing the avoidable delay factors.

The state of the Tendering Process in South African Government Institutions has become an area of concern in recent years with issues related to transparency, governance and rigid retrospective procedures being cited as impediments to efficiency. In tum, Knowledge Management (KM) and its ability to be applied to all types of organisations to increase efficiency has been popularised extensively. An analysis of KM literature suggested that the principles of KM may be used to increase efficiency and create competitive advantage. This study attempted to identify whether the benefits gained by other organisations through the application of Knowledge Management principles, could be applied to the Tendering Process in South African Government Institutions. The study sought to identify how Knowledge Value Chain by Wang and Ahmed (2005) may be leveraged to create an enhanced Tendering Process. The study then reviewed the Tendering Processes conducted in Australia, United States of America, Malaysia and South Africa and sought to identify the common steps in a tendering process in order to construct a standard tendering process. The Knowledge Value Chain was then applied to this process to create a standard tendering process enhanced by Knowledge Management Principles. The model was compared to the processes currently conducted in two Government institutions and two parastals. The findings indicated that the model is well suited for Government Organisations and would assist in the creation of greater transparency, however the practical implementation of the model is yet unlikely as the model suggest electronic access to information, and the process in South African Government Institutions is predominately paper-based.