Thesis (B.Sc.)-University of Natal, 1998.

Exclusionary clauses in South Africa have thus far been interpreted narrowly by the South African Courts. It has been accepted that where a patient enters into a medical contract/agreement with a hospital that includes a clause excluding the hospital and its employees from any form of liability whether negligently or not, the patient has no form of recourse against the hospital for any damages caused except that caused by gross negligence; the hospital will be absolved of any form of liability. The term caveat subscriptor applies – “let the signer be aware” that he/she is bound by the agreement signed by him/her whether or not it was read and understood. The leading case in South Africa dealing with exclusionary clauses in medical contracts is Afrox Healthcare Limited v Strydom. Since that decision the Consumer Protection Act has came into existence. My research question involves determining the impact an exclusionary clause would have, when analysed in terms of the provisions of the Consumer Protection Act with particular reference to its applicability and enforcement in medical/hospital contracts. The Afrox case has in itself been a controversial decision, with many legal writers of the opinion that the principles laid down by the case need to be overturned as the judgement is not in line with public policy. It is argued that with the Consumer Protection Act in place, it can be assumed that exclusionary clauses in medical/hospital will no longer be valid. The Act is a step in the right direction towards patient/consumer protection and awareness. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2013.

With the growth experienced in the Building Industry, it is increasingly important to have a contract document that can be used on projects that is reasonably acceptable to all parties concerned. The objective of the research was to determine the effectiveness of the Joint Building Contracts Committee Series 2000 Principal Building Agreement (JBCC 2000 PBA)(Edition 4.1, March 2005) currently used in the Building Industry. The literature reviewed and results of quantitative research amongst contractors formed the basis of this study. The study revealed that the JBCC 2000 PBA is the most favourable contract document used by contractors in the Building Industry. With the inclusion of a range of construction guarantee alternatives in the contract document in lieu of the retention clause, more than half of the respondents have indicated that they are in favour of a retention clause to be included in the contract document as an alternative security option. The study also showed that there are still areas of concern with regards to the difficulty in interpreting and implementing numerous clauses of the document and that amendments were made to the document without legal advice, resulting in disputes. The research further also revealed that developing building contractors experience difficulties in general where the JBCC 2000 PBA is used as contract document on projects. There also seems to be no balance of risk between the employer and contractor in most cases where this contract document is used. The research concluded with proposals on revisions to some clauses to ensure a better contract document that will be acceptable to all contractors in the Building Industry and ultimately to be an internationally acceptable document.

This research focuses on and summarises the methodology followed to demonstrate that the South African construction industry can use the Construction Registers Service, in particular the Register of Contractors, as a tool to measure the competitiveness of Small, Micro and Medium Enterprises (SMMEs). The Register of Contractors (RoC) was developed by the Construction Industry Development Board (cidb) in terms of the Construction Industry Development Board (cidb) Act 38 of 2000. As a tool, it was designed to offer a basis for sustainable constructor development, growth, improved delivery, performance and sustainable empowerment. It was also developed to be used by the construction industry to, inter alia, and provide statistical data which would enable the construction industry to better understand the contracting capacity in South Africa. Beyond providing the statistical data, the register of contractors was meant to be enhanced with functionalities that would measure the growth and performance of contractors as they apply business practices that improve their value offering to the construction industry as a whole. This research looks at how this tool can be used by the construction industry to measure the competitiveness of the contractors within the selected grades, with the intent of demonstrating the overall value of the RoC as a tool. The research undertaken looks at how the use of the RoC can measure the competitiveness of a targeted group of small contractors. The research limits itself to the entry levels of contractors registered with the cidb between grades 2 and 5 with a view to establish a benchmark for contractor competitiveness within those bands. The research further proves the correlation between contractor capability and the ‘ability’ to be competitive in growing their value proposition and businesses. The unit of study for the purposes of this research is at firm level drawing from a reflection on who is an active participant in the South African construction industry particularly as it pertains to the smaller contractors within the targeted group elucidated above. The focus of the research is on the efficacy of the RoC as a tool that identifies the areas needing targeted development to support SMMEs and the subsequent demonstration of improved business processes within that sector. The qualitative research methodology was followed through this study as its nature was such that there was no requirement to rely only entirely on statistics or numbers due to the articulated problem there needed to be a qualitative enquiry into data needed which would adequately land to a significant synthesis on the responses and arrive at suitable solutions to the identified problem. The qualitative research methodology followed by this study was used to gain insight into the construction SMMEs’ attitudes towards the sector within which they trade, their behaviours, their value systems [to the extent where this was possible], their concerns, their motivations and aspirations. All of these, the study concluded that they inform the business decisions which the SMMEs make. How structured information was collected and analysed provided a synthesis of themes and aided in extracting meaning. The main findings of the research were that there is no shared understanding within the local construction industry of what contractor competitiveness is and to what extent it would benefit both the industry and the SMME sector. As a result of this competitiveness could not be measured and there was no clarity as to what tools of measure could be used to forecast the capabilities of the industry. This research was focused on exploring how the RoC can be used to measure improved capability and competitiveness on the part of SMME contractors. The implications of these findings are that there would now be improved and measurable competitiveness allowing the contractors to bid for work both within their provincial regions but also outside of their geographical location and to measure their growth as they achieve higher grading statuses within the register of contractors (RoC). The efficacy of contractor development programmes would also improve as they go beyond enhancing contractor capacity but also include competence improvements, training for business acumen, improved capability and innovation. The conclusion is that South Africa’s construction industry could achieve sustainable development and growth as a result of SMME contractors whose competitiveness would have been measured through the use of the RoC tool. The main recommendation is that there be a clear understanding of competitiveness and what its benefits to the South African construction industry are whilst at the same time the RoC is acknowledged as the tool embedded with functionalities able to measure this competitiveness amongst graded contractors. The RoC would allow construction clients to not only measure contractor competitiveness but also that they may have an improved ability to measure the direct impacts of contractor development interventions. / Lolucubungulo lugxile ekubhekeni izimo ezinqala ngaphakathi komkhakha wezokwakha. Lubuka igalelo losonkontilaka abasebancane kulomkhakha ekuzithuthukiseni kanti futhi nemizamo eyenziwe uHulumeni endimeni edlalwe uhlu olushicilwelwe iBhodi yomkhakha wezokwakha (i-cidb). Umbhali walolucubungulo ukholelwa ekutheni loluhlu lungasetshenziswa hhayi kuphela ekuthuthikiseni ononkontilaka kodwa futhi ekwenzeni ukuthi bakhule kulo lona loluhlu baze bakwazi ukuthola amathuba angcono emisebenzi. Uhlu ekukhulunywa ngalo lapha lwashicilelwa i-cidb ngomgomo womthetho kaHulumeni we-Act 38 of 2000. Luyithuluzi elenzelwe ukuba likhulise umkhakha wezokwakha, lithuthukise osomabhizinisi abasebancane, likhuthaze imigomo efanelekile ekwakheni (improved delivery). Enye injongo yokushicilela lelithuluzi kwakuwukwenzela ukuthi kwaziwe inani labo osonkontilaka, ubulili babo nokuthi bagxile-phi ngokwezindawo zokusebenza. Konke loku kwakufanele ukuze uHulumeni kanye nabanye abaqashi bazi ukuthi uma kusikelwana ngemisebenzi bangaki na ononkontilaka abazokwazi ukufeza izidingo zemiphakathi esiphila kuyo? Lolucubungulo luzobheka ithuluzi elasungulwa umkhakha wokwakha ekutheni lingakwazi na ukudlondlobalisa osonkontilaka abasafufusa phakathi kwalemikhakha (grades) ababekwe kuyo? Kuzobhekwa futhi ubugugu balo lona lelithuluzi. Akuzoqxilwa kubo bonke osonkontilaka, kodwa kulabo abasabancane ngokwamabhizinisi abo ababekwe emazingeni kusukela ku-2 kuya ku-5 ngokoshicilelo le-cidb. Kuzobhekwa amakhono abo labosonkontilaka, kubhekwe futhi izinkomba ezingabadlondlobalisa ngokwamabhizinisi. Okunye okuhloswe yilolucubungulo ukubheka ukuthi umkhakha wezokwakha uyakwazi na ukukhiqiza amathuba anele isikhathi eside kwenzelwa osonkotilaka belu nokuthi uyakwazi na ukuqhubeka wakhe amathuba azokhuthaza ukukhula kwabo. Ekugcineni okufanele kufezwe yilolucubungulo wukuthi uhlu olushicilelwe losonkontilaka lungasiza ekukhuthazeni udlondlobalo losonkontilaka abancane.

Thesis (MBA)--Stellenbosch University, 2015. / ENGLISH ABSTRACT: Expenditure on South African public sector projects is vital to infrastructure development and creating employment opportunities in the country. The submission of tenders by contractors is the traditional procurement method utilised in awarding contracts. The traditional tender procurement method is not only costly, but the lowest-bid method does not ensure that the eventual project at completion is the most cost effective. Although regulatory frameworks are in place to ensure that public sector projects are awarded to suitable contractors, there are numerous examples of public sector projects that have been awarded to incompetent contractors. The traditional tender procurement method is non-collaborative in its composition, as the contractors executing the work are not part of the design team. Furthermore, industry stakeholders’ perceptions influence procurement method preferences. This research project investigates whether the tender procurement method is best suited to meet the South African public sector’s requirements and achieve infrastructural development so desperately required, or whether it needs to be replaced in its entirety or adapted.

Construction management competencies are essential to realise sound practices among and to realise optimum performance by, inter alia, emerging civil engineering contractors. Such competencies enable a clear focus on the business of construction and the management of projects, with increased efficiency and reduced costs as a benefit. The objective of the MSc (Built Environment) treatise study were to determine the current practices and performance of emerging civil engineering construction contractors operating in the Nelson Mandela Bay Metropole. The descriptive method was adopted in the empirical study. The salient findings of the study are: most of the emerging civil engineering construction contracting organisations lack construction management competencies; construction resources are inappropriately managed leading to construction failures; most of the emerging civil engineering construction contracting organisations lack adequate supervision resulting to poor workmanship; there is a shortage of skilled labour amongst emerging civil engineering construction contractors; procurement processes are inappropriate leading to under capacitated emerging civil engineering construction contracting organisations being awarded contracts; most emerging civil engineering construction contracting organisations lack the requisite aptitude for construction; there is a lack of capacity at all management levels of emerging civil engineering construction organisations in managing the business of construction and that of projects; the nine functions of organisations are not comprehensively represented, and self-ratings indicate inadequacy relative to the management function of control, and relative to certain activities of the organising function. Conclusions include that emerging civil engineering construction contracting organisations need to be comprised of technical teams that possess adequate competencies and that use the construction technology to its full use enabling their organisations to stay abreast of their competitors. Recommendations that can contribute towards improving the status quo include: formal civil engineering and construction management education, resources must be present and training should be promoted throughout the industry at all levels of management to ensure proper supervision and correct use of adequately trained labour, skilled or semi-skilled, incapacitated emerging civil engineering construction contractors should be awarded contracts through appropriately and structured procurement procedures, adequate aptitude in construction should be promoted and enhanced in order to realise conceptualisation and visualisation capabilities, comply with legislation, maintain records and communicate using state of the art technology, optimally manage the finances, have the requisite resources and undertake the work efficiently, interact with the respective publics, and market the organisation to ensure sustainability thereof.

Thesis (LLM)--Stellenbosch University, 2013. / Bibliography / ENGLISH ABSTRACT: In order for the government to function, it needs goods and services. It may acquire these goods and services by using its own resources, or by contracting with outside bodies. The latter method is generally referred to as public or government procurement. Government procurement usually contributes a large deal to a country’s economy and is therefore of great importance. With South Africa’s political transformation in 1994, the construction industry was used as the model for public sector procurement reform. The industry regulates all infrastructure and constituted 3.8% of the country’s gross domestic product (GDP) in 2011 with the private sector as its biggest client. The legal regulation of construction procurement in South Africa is therefore significant. Section 217 of the Constitution¹ sets the standard for government procurement in South Africa. Section 217(1) provides that organs of state in the national, provincial or local sphere of government or any other institutions identified in national legislation when contracting for goods or services must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective. Organs of state are not prevented from implementing procurement policies which provide for categories of preference in the allocation of contracts and the protection or advancement of persons, or categories of persons, disadvantaged by unfair discrimination in terms of section 217(2). Section 217(3) in turn provides that national legislation must prescribe a framework in terms of which section 217(2) must be implemented. The rules for construction procurement in South Africa are found in the Construction Industry Development Board (CIDB) Act² and the Regulations to the Act.³ The Construction Industry Development Board has been established by the Act and is empowered to regulate construction procurement in terms of the Act and to publish best practice guidelines for further regulation and development of construction procurement. This thesis aims to answer the question as to whether the legal regulation of construction procurement complies with section 217 of the Constitution. Chapter one sets out the research question to be answered, the hypothesis on which the thesis is based and the methodology employed. Chapter two establishes the constitutional standard for government procurement in South Africa and is the standard against which the rules discussed in subsequent chapters are tested. Following this, the procurement procedures in terms of which supplies, construction works and services are procured are described and analysed in chapter three. It appears that the Regulations to the CIDB Act exclude contracts for supplies and services in the construction industry. Therefore, the qualification criteria for construction works contracts are examined in chapter four. Thereafter, the evaluation and award of construction works, supplies and services contracts are explained and analysed in chapter five. Government procurement may further be used for objectives not directly connected to the main goal which is the procurement of goods and services at the best possible price. It may also be used for the promotion of socio-economic objectives, for example. Therefore, in the sixth chapter, the use of government procurement as a policy tool in the South African construction industry is discussed and analysed. The concluding chapter collectively refers to what was discussed in the preceding chapters including the conclusions and attempts to answer the research question as to whether the legal regulation of construction procurement in South Africa complies with section 217 of the Constitution. / AFRIKAANSE OPSOMMING: Die staat het goedere en dienste nodig om te funksioneer. Dit kan hierdie goedere en dienste verkry deur die staat se eie bronne te gebruik, of dit kan instansies van buite kontrakteer. Daar word oor die algemeen na laasgenoemde metode verwys as staatsverkryging. Gewoonlik lewer staatsverkryging ‘n groot bydrae tot ’n land se ekonomie en dit is dus van groot belang. Met Suid-Afrika se politieke transformasie in 1994 is die konstruksiebedryf as die model voorgehou vir die hervorming van die staatsverkrygingstelsel. Die konstruksiebedryf reguleer alle infrastruktuur in die land en het in 2011 3.8% tot Suid- Afrika se Bruto Binnelandse Produk (BBP) bygedra, met die private sektor as die grootste kliënt in die bedryf. Dit is dus noodsaaklik dat staatsverkryging in die Suid-Afrikaanse konstruksiebedryf wetlik gereguleer word. Artikel 217 van die Grondwet4 stel die standaard vir staatsverkryging in Suid-Afrika. Artikel 217(1) bepaal dat staatsorgane in die nasionale, provinsiale of plaaslike regeringsvertakkings, of enige ander instelling in nasionale wetgewing vermeld, wat vir goedere of dienste kontrakteer, sodanige goedere of dienste moet verkry ooreenkomstig ’n stelsel wat regverdig, billik, deursigtig, mededingend en koste-effektief is. Staatsorgane word verder nie verhinder of belet om staatsbeleid te implementeer wat voorsiening maak vir die bevordering van sekere mense, of kategorieë mense, wat ingevolge artikel 217(2) deur onbillike diskriminasie benadeel is nie. Artikel 217(3) bepaal dat nasionale wetgewing ’n raamwerk moet voorskryf ingevolge waarvan artikel 217(2) geïmplementeer moet word. Die Wet op die Ontwikkelingsraad vir die Konstruksiebedryf (Construction Industry Development Board Act)5 en die Regulasies tot die Wet6 omskryf die regsreëls vir staatsverkryging in die Suid-Afrikaanse konstruksiebedryf. Die Ontwikkelingsraad vir die Konstruksiebedryf het ingevolge hierdie Wet tot stand gekom en is gemagtig om staatsverkryging in die konstruksiebedryf te reguleer. Dit mag ook goeie praktykriglyne publiseer vir verdere regulering en ontwikkeling van staatsverkryging in die konstruksiebedryf. Hierdie tesis het ten doel om die vraag te beantwoord of die wetlike regulering van staatsverkryging in die konstruksiebedryf aan artikel 217 van die Grondwet voldoen. Hoofstuk een gee ‘n uiteensetting van die navorsingsvraag wat beantwoord sal word, die hipotese waarop die tesis berus en die metodologie wat aangewend word. Hoofstuk twee omskryf die grontwetlike standaard vir staatsverkryging in Suid-Afrika en word as standaard gebruik waarteen die regsreëls vir staatsverkryging in die konstruksiebedryf in die daaropvolgende hoofstukke getoets word. Vervolgens word die verkrygingsprosedures ingevolge waarvan voorraad, konstruksiewerk en dienste verkry word, in hoofstuk drie bespreek en ontleed. Dit blyk dat die Regulasies tot die Wet op die Ontwikkelingsraad vir die Konstruksiebedryf (CIDB Act) kontrakte vir die verkryging van voorraad en dienste uitsluit. Gevolglik word die tendervereistes vir konstruksiewerk in hoofstuk vier bespreek. Vervolgens word die evaluering en toekenning van konstruksiewerk, voorraad- en dienskontrakte uiteengesit en ontleed in hoofstuk vyf. Dit blyk verder dat staatsverkryging gebruik mag word vir doelwitte wat nie direk verband hou met die primêre doel, naamlik die verkryging van goedere en dienste teen die beste prys, nie. Dit mag byvoorbeeld ook gebruik word vir die bevordering van sosio-ekonomiese doelwitte. Gevolglik word staatsverkryging as ’n beleidsinstrument in die Suid-Afrikaanse konstruksiebedryf in hoofstuk ses bespreek en ontleed. Die laaste hoofstuk gee ‘n opsomming van wat bespreek is in vorige hoofstukke, maak gevolgtrekkings en probeer die navorsingsvraag beantwoord of die regsreëls wat staatsverkryging in die konstruksiebedryf reguleer, voldoen aan artikel 217 van die Grondwet.

Text in Afrikaans / The study investigates legal and administrative aspects of the interaction between public sector and private enterprise effected by state procurement of goods and services. South African government contracts are, despite their elaborate regulation by statutory and administrative prescription, regarded as the subject matter of the private law of contract. In this regard, they may be distinguished from the contrats administratif of the French and related legal systems and resemble their British and, more closely, federal American counterparts. Important aspects of government procurement, notably the contractual capacity of organs of the state, those administrative procedures which precede the conclusion of agreements with contractors, and the right reserved to the state to rescind, in the public interest, a contract duly entered into, are nevertheless to be determined by the principles of administrative law. The budgeting, audit and parliamentary control of procurement expenditure, along with the invitation of suppliers' bids and the award of contracts, are the principal administrative aspects of the study and are analysed in Chapters III and IV. The pricing of government contracts in South Africa is, with scant exception, determined by competitive tender. Restrictive trade practices and bid preferences awarded by procuring agencies in the pursuit of socio-economic policies were found, in Chapter V, to impede the operation of free market forces. The law of contract features most prominently in the performance of contracts and is examined in Chapter VI. The discussion, depicting the essential provisions of six standard form contracts commonly employed by government for stores and works, is fairly concise. References to British and American procurement law and practice, a consistent feature of the study, are, however, extensive. In South Africa, the settlement of procurement disputes is generally entrusted to the ordillary courts. Chapter VII deals with a number of special remedies accorded to the state, procedural prerequisites for the institution of civil actions against the state, and alternatives to litigation, especially arbitration and administrative appeal. The final chapters survey the efficacy of procurement as an instrument of socio-economic policy, and advance a few recommendations regarding the proper law and more efficient administration of government procurement. / Constitutional, International & Indigenous Law / 1 online resource (306 leaves) / LL. D.

Municipalities in South Africa are increasingly outsourcing municipal services, including basic municipal services such as water and sanitation services and refuse collection and disposal. The Constitution places onerous duties on municipalities to respect and promote human rights in the exercise of the powers and the performance of their functions. These duties are particularly prevalent when a municipality is deciding on the optimal service delivery mechanism for basic municipal services. It is thus crucial for the policy and legislative environment regarding municipal outsourcing to be firm and clear and for the municipality to ensure satisfactory implementation of outsourcing projects, including contract management. This thesis examined the policy and legislative framework governing municipal outsourcing and described the general features of a range of current South African outsourcing contracts. It also questioned whether the policy and legislative framework are consistent in their objectives and assessed how these objectives are carried through and translated into the contract drafting and implementation phases of outsourcing.

No abstract available. / Theses (LL.M.)-University of KwaZulu-Natal, Durban, 2013