A critical analysis of the subcontractor’s builder’s lien.
Mdletshe, Sithandiwe Samukelisiwe.
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This research paper looks at the South African common law right to lien as it currently stands as the only compensatory remedy for a construction subcontractor in the event of non-payment by the main contractor. The nature and scope of the builder’s lien in this regard will be analysed and its limitations will be highlighted. Accordingly, having critically considered a potential alternative remedy, an unjustified enrichment claim, for the subcontractor, this research paper will illustrate that there is insufficient protection for an unpaid subcontractor in our legal system. Hence, there is a need for our common law builder’s lien to be developed into a statutory builder’s lien. An analysis of foreign jurisdictions legal position, in particular Canadian law, with regard to the construction subcontractor and the right to lien as a remedy has a commendable statutory measure in place to assist a subcontractor by attempting to prevent such a financial predicament and if it nonetheless still occurs, that in the event of non-payment, the subcontractor is adequately protected. This research project proposes that our legal system should take influence from the Canadian legal system and be developed in accordance with our legal framework in order for construction subcontractors to also have sufficient and effective protection under our legal system.