Better risk allocation, clearer contracts and early dispute resolution can help keep projects moving from planning to completion
South Africa has considerable infrastructure investment available across energy, ports, logistics and urban development. The challenge now is execution. According to Peter Barnard, a construction and infrastructure law partner at Cox Yeats, sound contractual and commercial foundations are among the most practical ways to turn that investment into projects that are completed.
Barnard moderated the panel at Cox Yeats’ recent event, Unlocking Infrastructure Delivery: Procurement Reform, PPPs and Practical Solutions, held in Sandton on 18 September. The event brought together public and private sector role players, with Minister Dean Macpherson delivering the keynote, to discuss what needs to happen for South Africa’s infrastructure pipeline to deliver. Barnard says the conversation must now continue.
“There is a strong appetite to build, and rightly so,” said Barnard. “The question is how we move from investment and planning to delivery on site. Many factors affect that, from supply chain to funding structures, but contractual and commercial readiness is one we can act on now.”
Allocating risk clearly, and to the party best placed to manage it
Barnard notes that inflation, material cost movements and site disruptions are realities on every large project. The difference lies in how well contracts anticipate them.
“Risk should sit with the party best able to manage it, and the contract should say so clearly,” said Barnard. “When risk allocation is balanced and the drafting is clear, parties spend less time arguing over who carries the cost and more time solving the problem and keeping the project on track.”
He encourages public and private sector clients to invest time in contractual planning before procurement is finalised, particularly on complex projects and public-private partnerships (PPPs), where a project’s commercial structure shapes its delivery for years.
Identifying disputes early, and resolving them quickly
Disagreements on large projects are inevitable. Barnard says what matters is how early they are identified and how quickly they are resolved.
“Formal litigation and arbitration have their place, but they can take a long time, and a project cannot afford to stand still while a dispute is decided,” said Barnard. “Practical mechanisms such as standing adjudication boards, early neutral evaluation and structured early-warning processes allow technical and commercial disagreements to be dealt with while work continues.”
Used well, he says, these tools protect timelines, budgets and relationships between owners, contractors and subcontractors, including smaller contractors further down the supply chain.
Planning for stakeholders and compliance from the start
Barnard adds that early planning should extend beyond the contract itself to stakeholder engagement and procurement compliance.
“Engaging communities and other stakeholders early, following procurement requirements carefully and building both into the contractual programme all reduce the likelihood of disruptions once construction has started,” said Barnard. “These are practical delivery matters, and they are far easier to address before a site is established than after.”
He says local procurement processes that are transparent and legally sound also strengthen confidence in projects and help them proceed with fewer interruptions.
Continuing the conversation
Peter says the 18 September discussion reflected a shared commitment to finding workable solutions, and Cox Yeats will keep engaging with government, developers, contractors and funders on procurement, PPPs and delivery.
“Building South Africa’s future depends on sound legal and commercial foundations as much as it does on steel and concrete,” concluded Barnard. “Clear contracts, fair risk allocation and early dispute resolution are what keep projects moving. If we align on these, we can turn the investment on offer into infrastructure that delivers lasting economic benefit.”
