THE EMERGENCE OF ADJUDICATION AS AN ADR MECHANISM IN SA

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CHAPTER THREE REVIEW OF RELATED LITERATURE: INSTITUTIONAL ROLES IN ADJUDICATION PROCESS

 Introduction

In this chapter, a discussion of the meanings, significance and the key roles that institutions commonly play in the development process is carried out. The purpose of this chapter is to provide clarity to the meaning attached to the term ‗institution‘ as used in the context of this study. The chapter starts with the definition of institutions and thereafter establish the importance of institutions in the adjudication development process.

Definition of institutions

Over the years there has been increased attention on institutional development, institutional building and organizational strengthening. This is largely due to institutions being a major building block for the successful deployment of policy objectives and fundamental to the development process. From a review of literature from the field of institutional development, this fact has been severally and consistently confirmed (Blase, 1986; McDermott and Quinn, 1995; McGill, 1995). Yet there is no standard definition of ―an institution‖ in the literature (McGill, 1995: 65). Blase (1986: 329) suggests that ―while a single, all-purpose definition of an institution would be convenient, it does not exist, and the literature is not mature enough for its formulation at this time‖. Hence a variety of terms is used to describe an institution. Clarity of definition will therefore assist in ensuring consistent interpretation and usage (Blunt and Collins, 1994: 112).
McDermott and Quinn (1995: 151) define an institution in the broadest sense as established law or custom. This definition is akin to that of Keohane (1989: 3) who describes institutions as ―persistent and connected sets of rules (formal and informal) that prescribe behavioural roles, constrain activities and shape expectations‖. These definitions accord with the most cited definition of an institution proposed by Uphoff, in which institutions are « complexes of norms and behaviours that persist over time by serving some collectively valued purposes » (Uphoff, 1986). The views of the various authors cited above can be summarised in the North (1990: 5) definition that refers to institutions as ―rule of the game‖ or ―humanly devised constraints‖ that shape human interaction. According to TACSO (2015) the nature of an institution‘s definition is classified as abstract.
Abstract institutions are informal types of institutions that focus on customs and practices (Cortner et al., (1998: 160). They are durable and generally accepted. The acceptance may be based on an agreement, common understanding in society, a contract, or even force. Abstract institutions usually influence the organized settings and assist in establishing boundaries for development activities. In designing development interventions, they are to be given serious consideration, as their effects on development activities can be of great importance.
Shifting away from viewing an institution in the broader sense, the term ―institution‖, on the other hand, can be used in a more specific way to imply some form of purposive organisation, consciously formed for a definite purpose. Thus, the term ―institution‖ and ―organisation‖ are commonly used interchangeably. There are three ways in which these two terms are used interchangeably. These ways are (i) organisations that are not institutions, (ii) institutions that are not organisations, and (iii) organisations that are institutions (and vice versa) (Uphoff, 1986:8; MCGill, 1995, 64; MCDermott, 1995: 151). Blase (1986:323), acknowledging the earlier work of Philip (1969) defines the term « institutions, » as ―organizations staffed with personnel capable of carrying out defined but evolving programs contributing to social and economic development and having enough continuing resources to assure a sustained effort for establishment, acceptance, and application of new methods and values‖. In addition to this definition, Esman (1967: 1) had earlier described an institution as ―a formal organization which helps in inducing and protecting change‖. These types of institutions are referred to as concrete institutions.
Concrete institutions are those which have organised structures. Cortner et al., (1998: 160) consider this type of institution as ―formal institutions which have administrative structures‖. They are entities that are commonly valued and have durability. These institutions vary and are diverse, and may include government institutions, education or academic institutions, legal institutions, professional institutions and voluntary organizations (TACSO, 2015 online: 12). They are referred to as ―actors involved in a development‖. These institutions acquire a certain degree of value and stability, and promote a particular cause. The importance of these institutions cannot be overestimated.
From the above definitions, it may be deduced that there are variations in the connotation of the term ―institutions‖. Thus, it can be inferred that there are formal or abstract institutions, (e.g. laws, rules, regulations, legislation), and there are informal or concrete institutions (e.g. formal organisations, court of law etc.). This implies that institutions have different meanings for different authors in the broader literature. The variation in turn requires that clarity to determining the meaning attached to its use in a particular context is needed.
It is, however, worthy of note that the term ―institutions‖ as used in this study mainly focuses on concrete institutions (i.e. specific formal organizations that develop a capacity to act as agents for the larger society by providing valued functions and services). These organisations could be « a new or remodelled organization which induces and protects innovations ». Institutions, for the purpose of this work, would therefore refer to well-established organizations (formal organisations, court of law, authorised nominating authority, government institutions as well as independent institutions responsible for the adjudication implementation) which fulfil certain purposes for the effective functioning of adjudication practices.

Importance of institutions

Literatures, especially in the field of institutional development, have provided strong support for the overwhelming importance of institutions in predicting the level of development around the world and their significance in the realisation of policy objectives (Hall and Jones, 1999; Ferrini, 2012; Blase, 1986). In the words of Blase (1986: 321) ―Institutions play a strategic role in development‖. Development in this sense means ―qualitative new phenomenon‖. Thus, developing and enhancing the capacity of various institutions is fundamental to the development of the construction industry (McDermott and Quinn, 1995: 150). This is because, within the industry, many ideas are conceived and conceptualised. It therefore requires a great deal of effort by various institutions to put mechanisms in motion for the realization of such dreams and ideas or concepts.
The proper functioning of any ADR mechanism depends on two aspects of regulatory frameworks – (i) legislative and (ii) the institutional supports. In fact, there have been reports of poor implementation of policy and rifeness of non-compliance with regulations where institutional frameworks have been inadequate or non-existent to support such legislative framework (Ilter, Lees & Dikbas, 2007: 1153; Ilter and Dikbas, 2009: 152). Therefore the successful deployment of new practices or policies depends on the planning and realization of the related institutional framework as much as the adoption of legislation. However, this important infrastructure is often neglected (Ilter et al., 2007: 1157). It is herein noted and stressed too, that there are genuine and undisputable reasons to investigate the necessary institutional framework that can govern the policies and rules associated with adjudication, particularly in SA, where the growing interest is already evident.
In the construction industry there are many institutions whose activities influence the running and functioning of the industry. Some of these institutions are constituted by regulation or legislation. Some other institutions are also formed to represent the interests of individual practitioners, to act as natural persons in their capacity, and also serve as advisory bodies to the institutions that are constituted through legislation or regulation. There are also various associations which represent special interest groups within the construction sector. These institutions, in one way or the other, help their members and also influence the activities of their members within the construction industry. The on-going research focuses on concrete institutions within SA and how their existence can influence statutory adjudication practice in SA. The various institutions to be considered are; (i) government institutions, (ii) professional institutions, (iii) legal institutions and (iii) voluntary/private institutions which have direct links with the construction industry and could influence the activities therein.

Roles of institutions

According to Adamolekun (1990: 5), ―Institutional weakness constitutes a roadblock to development….‖ In reinforcing the pivotal role of institutions to development, Salmen, (1992: 11) noted that:
“Institutions are central to sustainable and beneficial economic growth. They create the policies, mobilize and manage the resources, and deliver the services which stimulate and sustain development. Growth and prosperity are unlikely to be maintained if institutions which guided them are dysfunctional”
In effect, an institution appears to be the indispensable filter of, and guide to, the development process (McGill, 1995: 63).

DECLARATION 
ABSTRACT 
DEDICATION
ACKNOWLEDGEMENTS
LIST OF PUBLICATIONS
TABLE OF CASES 
TABLE OF STATUTES AND REGULATIONS 
LIST OF TABLES 
LIST OF FIGURES 
LIST OF ABBREVIATIONS 
DEFINITION OF TERMS
CHAPTER ONE  PREAMBLE AND GENERAL BACKGROUND TO THE STUDY 
1.1. INTRODUCTION
1.2. BACKGROUND TO THE STUDY
1.3. THE PROBLEM AND ITS SETTING
1.4. MAIN RESEARCH
1.5. AIM AND OBJECTIVES
1.6. JUSTIFICATION OF THE STUDY
1.7. SCOPE OF THE STUDY
1.8. RESEARCH METHODOLOGY
1.9. SUMMARY OF FINDINGS, CONCLUSIONS AND RECOMMENDATIONS
1.10. STRUCTURE OF THE STUDY
CHAPTER TWO REVIEW OF RELATED LITERATURE: ESSENCE OF THE ADJUDICATION PROCESS 
2.1. INTRODUCTION
2.2. CONCEPT OF ADJUDICATION
2.3. RATIONALE FOR ADJUDICATION
2.4. TYPES OF ADJUDICATION
2.5. THE EMERGENCE OF ADJUDICATION AS AN ADR MECHANISM IN SA
2.6. TRANSITION TOWARDS STATUTORY ADJUDICATION IN SA
2.7. ADJUDICATION PROVISIONS IN THE NEW DRAFT REGULATIONS
2.8. APPLICATION OF THE REGULATIONS
2.9. PROCEDURE
2.10. ADJUDICATOR’S DECISION
2.11. SUMMARY
CHAPTER THREE REVIEW OF RELATED LITERATURE: INSTITUTIONAL ROLES IN ADJUDICATION PROCESS 
3.1. INTRODUCTION
3.2. DEFINITION OF INSTITUTIONS
3.3. IMPORTANCE OF INSTITUTIONS
3.4. ROLES OF INSTITUTIONS
3.5. THE AUTHORIZING NOMINATING AUTHORITIES
3.6. ADJUDICATOR APPOINTMENT
3.7. SUMMARY
CHAPTER FOUR REVIEW OF RELATED LITERATURE: IMPLEMENTATION OF ADJUDICATION 
4.1. INTRODUCTION
4.2. POLICY CIRCLE
4.3. POLICY PROCESS
4.4. POLICIES IMPLEMENTATION
4.5. CRITICAL FACTORS FOR EFFECTIVE IMPLEMENTATION STRATEGIES
4.6. IMPLEMENTATION CHALLENGES
4.7. SUMMARY
CHAPTER FIVE RESEARCH METHODOLOGY
5.1. INTRODUCTION
5.2. PHILOSOPHY UNDERLYING THE RESEARCH
5.3. RESEARCH APPROACHES
5.4. RESEARCH METHODOLOGIES
5.5. RESEARCH METHODS
5.6. RESEARCH DESIGN FOR THE STUDY
5.7. DATA ANALYSIS
5.8. ETHICAL CONSIDERATIONS
5.9. CRITERIA FOR JUDGING THE QUALITY OF RESEARCH DESIGN AND VALIDATION OF INTERVIEW QUOTATIONS
5.10. SUMMARY
CHAPTER SIX DATA ANALYSIS 
6.1. INTRODUCTION
6.2. ANALYSIS OF INTERVIEWEES’ BACKGROUNDS
6.3. PROFESSIONAL BACKGROUND OF THE PARTICIPANTS
6.4. INTERVIEWEES’ INVOLVEMENT IN THE SECURITY OF PAYMENT AND ADJUDICATION LEGISLATION
6.5. INTERVIEWEES YEARS OF EXPERIENCE
6.6. SYNOPSIS OF THE DATA ANALYSIS STRATEGY
6.7. STEPS TAKEN IN THE DATA ANALYSIS PROCESS
6.8. THE CODING PHASE
6.9. CATEGORIZATION PHASE
6.10. INTEGRATION PHASE
6.11. VISUAL DISPLAY OF RESEARCH FINDINGS
6.12. SUMMARY
CHAPTER SEVEN RESULTS AND DISCUSSION 
7.1. INTRODUCTION
7.2. THEME 1: RELEVANT INSTITUTIONS AND THEIR SPECIFIC ROLES IN EFFECTIVE STATUTORY ADJUDICATION PRACTICE
7.3. THEME 2: IMPLEMENTATION CHALLENGES AND HOW THEY COULD BE PREVENTED OR OVERCOME
7.4. THEME 3: INSTITUTIONAL REQUIREMENTS FOR EFFECTIVE IMPLEMENTATION
7.5. THEME 4: ENABLERS OF EFFECTIVE STATUTORY ADJUDICATION IMPLEMENTATION
7.6. DISCUSSIONS
7.7 DEVELOPMENT OF A FRAMEWORK FOR EFFECTIVE STATUTORY ADJUDICATION IMPLEMENTATION IN SA
7.8 SUMMARY
CHAPTER EIGHT CONCLUSIONS AND RECOMMENDATIONS 
8.1. INTRODUCTION
8.2. RESEARCH OVERVIEW
8.3. FINDINGS
8.4. CONTRIBUTION TO KNOWLEDGE
8.5. RECOMMENDATIONS FOR FUTURE RESEARCH
REFERENCES 
APPENDIX
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