Defects Liability Period & Completion - Clause 21 & 22 JBCC

Siyamthanda Ndwandwa
13th Oct, 2021

Introduction

The execution of a construction project is the collective control of time, cost, and quality parameters to achieve a tangible end-product which is fit for its intended purpose. A project has a beginning and an end, and the common conception is that, upon confirmation of practical completion (PC) one may be satisfied that the building work is over; and all defects have been addressed. This however is not the case and there may be works to be rectified. This blog shall unpack how the JBCC deals with defects and where responsibilities lie.

What are defects?

Defects are imperfections to the works which are caused by contractor workmanship and affect the overall quality of a construction project. Defects are broken down in the following terms:
 

• Patent defects are noticeable imperfections during construction and for a period after practical completion. Examples of these are identifiable cracks in the walls or floors, broken tiles, chipped glass panes etc.
• Latent defects are concealed flaws which appear post final completion of the project and could take long time to surface. A few examples could be leaking plumbing pipes underground, leaking roofs, rising dampness etc.

What is the Defects Liability Period?

Clause 21.1 of JBCC states that “the defects liability period for the works shall commence on the calendar day following the date of Practical Completion and end at midnight 90 calendar days from the date of Practical Completion or when work on the list for Final Completion has been satisfactorily completed, whichever is the later.”

The contractor shall remain liable for their workmanship; however, this shall be limited to a set time-period according to the JBCC. This is to mitigate risk to the contractor for defects which may be uncovered indefinitely.

This provides recourse to the employer to request the correction of defective work by the contractor to which the principal agent shall instruct to action accordingly. Clause 21.2 states that “Where defects become apparent during the defects liability period the principal agent may instruct the contractor to progressively attend to such items, whilst at all times minimising inconvenience to the occupants”.

Patent Defects

Patent defects are blemishes identifiable at the time of practical completion (PC); the principal agent shall ensure that they form part of the defects list issued to the contractor for rectification. These defects are to be attended to by the contractor to certify final completion for the works.

In terms of Clause 21.6 the contractor shall give notice to the principal agent when the items on the list of completion have been attended to. The principal agent shall in response either issue a list for completion as per Clause 21.16.1; or issue a certificate of final completion as per Clause 21.6.7.

Process

It is imperative to note that the contractor’s obligation in terms of defects on the works is not limited to the issue of final completion. Clause 21.12 states that “A certificate of final completion shall be conclusive as to the sufficiency of the works and that the contractor’s obligations have been fulfilled other than for latent defects”.

Latent Defects – Clause 22 of the JBCC

Latent Defects are the imperfections which appear during the period of commencement of construction to five (5) years after the date of Final Completion [Clause 22.1]. In this period, the employer is well within their right to inform the PA of the defects who has the contractual responsibility to instruct the contractor to rectify accordingly as; the contractor shall be obliged to make good of any defects up to the agreed date of expiry [Clause 22.2]

The JBCC also addresses the termination of contracts before the date of final completion. In the case of termination, the latent defects liability period shall end:

• Five (5) years from the date of termination for only the works completed by the contractor [Clause 22.3.1]. The PA shall keep record of the works.
• On the same day as the termination of the contract where the execution of the works is not possible due to circumstances beyond the control of the either party [Clause 22.3.2].
• On the date of termination by the contractor due to the default of the other parties [22.3.2].

Conclusion

The JBCC is fair to all contracting parties as it provides protection to the employer in terms of quality assurance, guides the PA of his contractual rights in terms of instruction and provides clarity to the contractor regarding the periods of liability which they are subject to.

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