Authored by CJ Grey and Jos Fogle.
In April 2026 the High Court ordered that an arbitration clause contained in the Joint Building Contracts Committee Principal Building Agreement Edition 6.2 – May 2018 (JBCC) was binding on the parties, notwithstanding that the contract had never been signed, and ordered the appointment of an arbitrator in terms of such arbitration provisions.
The dispute flows from a building contract for the construction of a residential property in Camps Bay. In late 2023, the respondent appointed the applicant as principal building contractor, following a formal tender process administered by architects, acting as the respondent's agent (Agent). The applicant submitted a written tender which expressly incorporated the JBCC. The Agent issued a letter of intent and a letter of award confirming the applicant's appointment. The site was handed over in November 2023, and construction commenced in December 2023. Over the ensuing period, the Agent issued 15 interim payment certificates under the JBCC, all of which were paid except the last. The dispute arose in mid-2025, with each party claiming several million rands from the other.
Following the applicant’s unanswered requests for the respondent to submit the dispute to arbitration, the applicant applied to court for relief in terms of section 12(2) of the Arbitration Act 1965, which empowers the court to appoint an arbitrator.
The respondent argued that the letter of intent and award imposed a condition that all relevant documents be signed, which was never done, and thus section 12(2) of the Act did not apply because no arbitration agreement came into being.
The court found that the admitted facts, being the existence of consensus between the parties regarding the provisions of the JBCC, evidenced by the letter of award and issuance of the interim payment certificates in terms of the provisions of the JBCC, contradicted the respondent’s arguments.
The court referred to the definition of “arbitration agreement” in the Act, which calls for a “written agreement providing for the reference to arbitration of any existing dispute….”. In addressing the requirement for a written agreement under the Act, the court held that the Act does not require a written arbitration agreement to be signed. It is sufficient if the parties have adopted and acted on the written agreement. The court further reaffirmed, absent a statutory provision requiring signature, that an agreement satisfying all other requirements for contractual validity will be enforceable.
The letter of intent and award's reference to documentation being "finalised for signing" did not impose signature as a precondition for the contract to commence. The JBCC itself contained no provision making signature a precondition to enforceability. Clause 3.3 provides that the agreement comes into force on the date of acceptance by the employer.
This judgment confirms that formal signature of a contract is not a prerequisite for an enforceable arbitration agreement under South African law unless signature is specifically required. Where parties have tendered, accepted, and performed under standard-form agreements, such as the JBCC, courts will hold them to the agreement.