The arbitration case between Bombela and the Gautrain Management Agency (GMA) has been ongoing for 18 months and will, in all likelihood, take another two years-plus to resolve, says GMA CEO Jack van der Merwe.

The Bombela consortium built and is now operating the R27-billion Gautrain rapid-rail system on government’s behalf.

“It is a very complex, time-consuming case involving large amounts of money – in fact, the amounts we are talking about mean that no-one directly involved really has the authority to settle the case outside of an arbitration process,” notes Van der Merwe.

He adds that litigation costs for the process “will be very high”.

The case is being heard by a panel of three judges within the Arbitration Foundation of South Africa (AFSA). Founded in 1996, AFSA is a joint venture between organised business, the legal and accounting professions.

The Gautrain case involves delays and disruptions Bombela says it experienced in construction work on the public–private partnership project, as well as related disputes.

Bombela says one of the issues is, for example, that the land on which construction had to take place was not provided by the provincial government as scheduled.

Murray & Roberts CEO Henry Laas noted in September last year that the claim against the GMA, a government agency, is “a megaclaim”, “with not hundreds of millions, but billions of rands at play here”.

Murray & Roberts is a member of the Bombela consortium.

Not one of the parties is willing to quantify the claim.

In simple terms, Van der Merwe says Bombela has to provide two types of evidence in its claim, namely that an event happened that makes it eligible for compensation in terms of the contract and that the value it has attached to the event is fair and valid.