You did not sign the contract. You can still be bound to its arbitration clause.

An employer on a Camps Bay building project paid 14 of the 15 payment certificates issued to its contractor. When the relationship broke down, and the final certificate went unpaid, the employer argued that no contract existed at all, because nobody had signed the paperwork. The Western Cape High Court rejected that argument and held the employer to an arbitration clause it had never signed. The lesson for anyone running a project is simple: your conduct can bind you as firmly as your signature.

The background

Springs Car Wholesalers appointed CCC Consultancy, trading as Capecon Construction, as the principal contractor to build a house in Camps Bay. The tender documents named the JBCC Principal Building Agreement (Edition 6.2, May 2018) as the governing contract, and that agreement contains an arbitration clause.

The contractor tendered on those terms. The employer’s agent issued a letter of intent, then a letter of award. Work started in December 2023. Between January 2024 and June 2025, the agent issued 15 interim payment certificates, and the employer paid all but the last. When the relationship broke down in mid-2025, the employer tried to deny that the JBCC and its arbitration clause applied at all. Its argument was that no one had signed the contract documents, so no binding contract had come into existence.

What the court decided

The court rejected that argument. Signature was not required. What mattered was that the parties had agreed to the terms and acted on them. The court relied on three points:

• The Arbitration Act 42 of 1965 does not require an arbitration agreement to be signed. It is enough that the parties adopted and acted on a written agreement containing an arbitration clause.
• The tender, the letter of intent, the letter of award, the start of the works, and the payment of 14 of the 15 certificates showed clear agreement on the contract terms, including the JBCC arbitration clause.
• The JBCC itself did not make signature a condition. It comes into force when the employer accepts the contractor’s offer, and no clause made signature by both parties a precondition to a binding contract.

The court declared clause 30.7 of the JBCC, the arbitration clause, binding on the parties and directed that an arbitrator be appointed under the contract.

Why it matters, and what to do

Incorporation by reference is efficient, but it carries a risk. A document named in a tender can bind you to terms you never separately negotiated, including an agreement to arbitrate. If your standard contracts rely on it, take four steps:

1. Make formalities explicit. If you want signature to be a precondition to a binding contract, say so in clear words. Without that, a court will look at conduct.
2. Treat referenced documents as live terms. Identify every document a tender or contract incorporates, read it, and make sure each party has a copy.
3. Keep your conduct consistent. Do not start work, issue instructions, certify payments, or issue pay certificates while assuming there is no contract until signature. That conduct is exactly what a court uses to find agreement.
4. Check the dispute-resolution clause early. Once you have accepted and performed under a framework, it is hard to argue later that its arbitration clause does not apply.

If your contracts commit you through documents you have not read closely, this is a good way to check what those documents actually say.

Contact our award-winning construction team, Nikita Lalla or Ricardo Pillay, to mitigate risks and get your projects over the line.

Written by Nikita Lalla, Ricardo Pillay, and Timothy Bapela. This article is general information and reflects the law at the time of writing. It is not legal advice. For advice on a specific matter, please speak to us.