Payment Process_JBCC PBA (Edition 6.2, May 2018)
Adine Abro Attorneys
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Scenario: You have been appointed as the contractor in terms of the JBCC Principal Building Agreement (Edition 6.2, May 2018) for the construction of a mixed-use development in Pretoria, Gauteng. ??
Question: What do you do if:
the principal agent does not issue a payment certificate; or
the employer fails to make payment by the due date?
Answer: Have a look at our crib sheet to become familiar with the steps and your rights and obligations in the payment process.
NB!
Remember that the JBCC PBA says that -
1.??????An interim payment certificate is not evidence that the works and materials and goods are in terms of the agreement.
2.??????Both parties agree to the jurisdiction of any court of law for the purposes of provisional sentence in relation to an interim payment advice.
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What is provisional sentence summons??
Provisional sentence is a special procedure designed to provide a plaintiff with a liquid document and proof of his claim on the face of the document (the certified certificate) the potential of a speedy judgment without the expense and delay that an ordinary trial action entails.
What do we mean by a potential judgment?
The step-by-step process of provisional sentence is as follows:
Step 1: You as plaintiff issue provisional sentence summons and attach your certified certificate
Step 2: The defendant has an opportunity in an affidavit to admit liability or to deny liability and to set out his defense
Step 3: A date will be set in court and the defendant will provide argument as to why he believes he is not liable to make payment
Step 4: The court may:
(i)?????????????????grant provisional judgment - in this scenario the defendant will only be able to proceed to trial if he makes payment of the certified amount together with costs – if the defendant fails to make payment the provisional judgment becomes final; or
(ii)???????????????refuses provisional judgment – in this scenario the defendant will be directed to serve its plea to your claim and the matter then proceeds to trial.
Project Management Professional.
2 年Hello Adine, could you please elaborate further on the retention. An incident when the Financial institution insisted on a JBCC contract, which states that retention to be held is 5%, however, the Financial institution dictates that 10% retention must be kept.