IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no:16571/2024
In the matter between:
THE MINISTER OF PUBLIC WORKS AND INFRASTRUCTURE Applicant
and
TEMPANI CONSTRUCTION (PTY) LTD Respondent
Heard: 30 October 2025
Delivered: 24 November 2025
Summary: Leave to appeal - a party is not permitted to adopt a contradictory
position in a subsequent proceeding, such as the application for leave to
appeal.
ORDER
Application for leave to appeal is dismissed.
JUDGMENT DELIVERED ELECTRONICALLY

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NZIWENI, J
Introduction
[1] This is an application for leave to appeal against the whole judgment and order that
this Court handed down on 15 September 2025. The applicant is seeking to appeal
the court order that upheld the relief that was sought by the respondent [in the main
application] and, additionally, resulted in the dismissal of the applicant's own
counterclaim.
[2) In this application, I propose to refer to the parties simply as the applicant and the
respondent. At times, I may also refer to the respondent as "the Minister" for clarity.
[3] In essence, the applicant is challenging this total defeat on both issues, hoping an
appeal court will overturn the decision regarding the respondent's claim in the main
application and reverse the dismissal of their own counterclaim. The application is
resisted by the respondent.
[4] The grounds upon which the leave to appeal are sought primarily rest on two
strands: first, that there are reasonable prospects of success, and second, that there
are compelling reasons why the appeal should be heard. I will merge some of the
grounds presented in the application for leave to appeal into single points for clarity
and efficiency.
Reasonable prospects of success
[5] The applicant contends that there are reasonable prospects of success that a court
of appeal would come to a different conclusion, and the following points are the specific
reasons provided to support this claim.
Two -tiered dispute mechanism is the default position

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Adjudication on its own is never meant to be final.
[6] This, of course, may be true as a general proposition, but the question is whether
it applies to the facts of this matter. As this ground of appeal was developed before
me, the proposition came to be that adjudication and arbitration are terms of art in the
construction industry. So the argument continued, by agreeing to the adjudication
process, the parties on a proper construction of their agreement, in light of the
surrounding circumstances, the purpose thereof and the text, and applying the
principles in Plascon Evans, quite clearly did not exclude the possibility of commencing
arbitration proceedings if either party chose not to accept the result of the adjudication
process.
[7] As I interpret the submissions presented on behalf of the applicant, their argument
posits that arbitration proceedings axiomatically follow the adjudication process in all
instances when a party is dissatisfied with the adjudicator's finding.
[8] The basic rules of contract interpretation are well known and are laid out in Joint
Municipal Pension Fund v Endumeni Municipality (92012010) [2012] ZASCA 13; [2012]
2 All SA 262 (SCA); 2012 (4) SA 593 (SCA) (16 March 2012). During the main
application, this Court had a duty to get the intention of the parties; and not general
propositions. And in the present case, the intent seems to be unambiguous.
[9] The principle as enunciated in Plascon Evans had nothing to do· in construing the
intent of the parties. For all intents and purposes, Plascon Evans does not deal with
interpretation of contract. Instead, the Plascon-Evans rule provides the legal principle
for how courts should handle disputes of fact that arise in application proceedings.
[1 0] It is the duty of the court to construe every provision of a written instrument as to
give force and effect. Not a single canon of contract interpretation, includes the
application of Plascon Evans rule. Plascon Evans is a procedural guideline for

application of Plascon Evans rule. Plascon Evans is a procedural guideline for
resolving factual disputes. The Adjudication Agreement that I found to be binding
between the parties, did not include a provision that would allow them [the parties] to
proceed to arbitration if they were dissatisfied with the adjudicator's decision.

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[11] The applicant contended that the respondent's argument during the main
application was focused solely on denying the existence of an arbitration agreement,
and that the respondent never argued the adjudication itself was intended to be final.
In the main application, the applicant vigorously challenged the existence of an
agreement to arbitrate, claiming that they only consented to an expedited dispute
resolution mechanism. Additionally, as the main judgment established, the
Adjudication Agreement is silent on the matter of subsequent arbitration.
[12] The respondent, in the founding affidavit, stated that the main application is to
have the determination published by the adjudicator made an order of this Court. In
the answering affidavit, the applicant contended that at the insistence of the applicant
[in the main application], the respondent [in the main application] agreed to amend the
agreement (the original agreement] to allow for both adjudication and arbitration. The
applicant [in this application] further asserted in the answering affidavit that pursuant
to the matter being referred to adjudication, the adjudicator did not address their
defences. It is further stated in the answering affidavit that the applicant now,
opportunistically, seeks an order from this Court for payment of those monies. The
applicant further contended in the answering affidavit [in the main application] that the
respondent seeks a payment of the monies, notwithstanding being aware that the
parties had agreed to both adjudication and arbitration.
[13] Based on the Minister's own version of facts, it is evident [on the version of the
Minister] that the respondent seeks payment of monies despite the parties having
agreed to a two-tiered dispute resolution process.
[14] It appears that a central, consistent theme throughout the Minister's papers is the
accusation that the respondent is acting in bad faith by disputing that the parties

accusation that the respondent is acting in bad faith by disputing that the parties
amended the original contract to include both adjudication and arbitration as valid
dispute resolution methods.
[15] In the main application, I summarised the respondent's case [applicant in the main
application] as follows in the first paragraph: 'The applicant also seeks the relief from

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this Court on the grounds that the parties had agreed [in an Adjudication Agreement
entered between the parties] to resolve their disputes only by an adjudication
mechanism. The relief that is sought by the applicant is directed squarely towards
making the adjudicator's award final and a definite determination upon the subject
between the parties."
[16] These facts, in and of themselves, tend to support and confirm that the applicant
in its case, postulated a position that the parties agreed exclusively to adjudication as
their method of dispute resolution, thereby ruling out arbitration.
[17] Furthermore, in the replying affidavit, it is the respondent's contention that the
Minister's assertion that the applicant knew full well that the parties had agreed to both
adjudication and arbitration is manifestly false. It is further stated in the replying
affidavit that the respondent refused to sign the arbitration addendum.
[18] It is so that the communique that was written by the respondent's legal
representatives "SP1 0", it states, amongst other things, that:
" ... the standard adjudication, arbitration and dissatisfaction clauses have all been
removed from the contract and the state provision (clause 40.2.2) provides for litigation
in the stead of adjudication/ arbitration.
This is the reason why the parties had to specifically agree to adjudication as the
contract made no provision for adjudication. In the premises, it appears that the
contract affords vour client no right to be dissatisfied with the determination of the
Adludicator, nor for it to refer the matter to arbitration.
Our client does not agree to arbitration.
This matter can be resolved bv a Court of law." Emphasis added
[19) Interestingly, it is stated on behalf of the Minister in the answering affidavit that:
"The original agreement between the parties only made provision for litigation. At the
insistence of the applicant, the respondent agreed to amend the agreement. to allow
for both adjudication and arbitration."

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[20] Viewed in the light of the above considerations, I thus do not understand the
Minister's contention to say that it was never the respondent's case that adjudication
was ever meant to be final. If the respondent had genuinely argued the adjudication
was not meant to be final, it would indicate the respondent did not fully understand the
relief it was seeking from this Court. In my view that is not the case.
[21] In the present case, of course, as the applicant [Minister] has been at pains to
point out, it is actually the Minister's consistent version that adjudication was never
meant to be final. But I think this version of the Minister properly understood,
demonstrates that the respondent [applicant in the main application] sought to treat
the adjudication process as being final. This point represented the strongest aspect of
the Minister's argument in the main application. Consequently, the Minister went to
significant lengths in his submitted documents to emphasise that the adjudication was
not intended to be a final determination. Thus, during the main application, the
Minister's highwater mark argument emphasised that the adjudication was not a final
and definitive resolution of the agreement, [in so arguing] seeking to counter the
respondent's view that it was the absolute and complete conclusion.
[22] The Minister is not permitted to adopt a contradictory position in a subsequent
proceeding, such as the application for leave to appeal. The finality of the adjudication
was determined by the parties' agreement, not by any decision of the court itself. The
decision of this Court merely acknowledged the existence of that agreement, which
was demonstrated by the evidence presented.
[23] It is worth noting that to counter the Minister's suggestion that this Court's decision
made the adjudication final, the respondent presented the signed Adjudication
Agreement as the best evidence during the main application, which clearly established

Agreement as the best evidence during the main application, which clearly established
the understanding between both parties. The best evidence was the signed contract,
which clearly showed the agreement between both parties.
[24] Therefore, I do not understand the assertion that this Court encountered at the
very least a dissensus or lack of consensus between the parties. When applying the

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established principles and various aids for interpreting a contract, it is clear that no
such disagreement existed.
[25] The argument that there was a lack of consensus, or absence of a meeting of the
minds between the parties, was never presented during the main application before
this Court. The core issue, as stated in paragraph 65 of the main judgment, was to
determine the actual agreement between the parties, or, more simply put, whether the
Adjudication Agreement constituted the complete understanding. The case never
revolved around issues of mutual mistake or the absence of a genuine meeting of the
minds. Even in the Minister's heads of argument issue was defined as follows:
"The Court is called to decide what the parties' agreement was / what the parties'
agreements were with regard to the alternative dispute resolution mechanism which
they adopted."
[26] Therefore, I do not understand the assertion that this Court encountered a
disagreement or lack of consensus between the parties. When applying the
established principles for interpreting a contract, it is clear that no such disagreement
existed. This case did not present a scenario that postulated two possible
constructions. This Court simply applied the intention of the parties as reflected by the
evidence.
[27] Three documents were presented as evidence, and all terms used within them
were considered to determine their intended meaning. The evidence revealed that
there was clear consensus regarding the Adjudication Agreement relied upon by the
respondent, but this was not the case with the Arbitration Addendum. Consequently,
the Adjudication Agreement took precedence.
[28] Nothing in the three documents indicated that the parties agreed to a two-tiered
dispute resolution process. The contract [the Arbitration Addendum] concerning
arbitration was not signed as required by the JBCC. The Arbitration Addendum was
the instrument that failed to show consensus between the parties.

the instrument that failed to show consensus between the parties.
[29] Neither the Adjudication Agreement nor the JBCC contained a clause stipulating
that the adjudication decision would be binding "unless and until it is revised by an

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arbitration award or court judgment." No evidence was provided to suggest that the
parties effectively expressed their intention to challenge the adjudicator's decision by
referring the matter to arbitration. Since the Arbitration Addendum that aimed to create
a pathway to appeal through arbitration was never signed, no such course exists to
grant an arbitrator the authority to reconsider an adjudicator's decision.
[30] No burden of proof was assigned to the Minister in this case. Instead, the matter
involved determining which version of events or contractual interpretation was more
persuasive, and one version ultimately took precedence over the other based on the
evidence presented. The conclusion reached was justified because the evidence
provided by the respondent was sufficient to establish that outcome, and no contrary
evidence was presented that could weaken the respondent's case. Ultimately, the
Minister's arguments regarding contract interpretation were found to be flawed and
were unsuccessful.
[31] The terms of both the JBCC Contract and the Adjudication Agreement are clear
and precise. It is important to emphasise that no arguments were made in this case
suggesting that linguistic errors had occurred. As noted in the main judgment, the
evidence indicates that the respondent declined to sign the Arbitration Addendum. It
is also an undisputed fact in this case that the JBCC Contract contains an integration
clause.
[32] As is well known, contract law is governed by the explicit and implied terms within
an agreement and their correct interpretation, not by reliance on subjective or
imagined expectations. Such expectations have no legal bearing. The law is
concerned only with the actual, mutually agreed-upon terms and the objective
interpretation of the contract itself. This principle supports the concept of freedom of
contract and helps foster certainty and predictability in legal agreements.
[33] The question that arises is: if a two - tiered system is the standard or default

[33] The question that arises is: if a two - tiered system is the standard or default
position, why did the applicant maintain during the main application that the parties
intended the Arbitration Addendum to be part of their agreement? If the default legal
position always applies, then it would not have been necessary to draft the Arbitration
Addendum in the first place.

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[34] In this case, the concept of a default position cannot apply because, according to
the respondent's [the applicant in the main application] accepted version of events,
the parties explicitly addressed the issue of the Arbitration Addendum. As previously
stated, the respondent rejected that Arbitration Addendum. Therefore, this situation
does not involve filling contractual gaps. As mentioned before, a party cannot rely on
presumed expectations that contradict the written agreement or the evidence
presented in court.
Failure to consider the counter application
[35] I fully agree with the view that there is no merit to the argumenfthat I failed to
consider the counter-application. The validity and potential success of the
counterclaim were entirely dependent on the outcome of the main application. In this
specific case, because the main application succeeded, the counterclaim necessarily
failed.
[36] It is settled now that the courts will only interfere with an adjudicator's findings in
very limited and exceptional circumstances. Moreover, no argument was even
presented that warranted interfering with the adjudicator's finding.
(37] Furthermore, the respondent in the main application primarily sought to enforce
the adjudicator's finding, as contemplated by the parties' agreement.
Other compelling reasons
[38] The assertion that this Court altered the default two - tiered system of dispute
resolution by making the adjudication award final is factually incorrect. The finality of
the award was determined by the parties' specific agreement as revealed by the
evidence, not by a change in the general default position.
[39] All of the above considered, I am satisfied that the respondent's assertion that
determining the main application required interpreting a case - specific agreement,
rather than a standard contract, is quite correct. The main judgment simply applied

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established existing legal principles to the specific facts of the case, such as the
objective interpretation of the parties' contractual terms. The main judgment did not
introduce any major change in legal principles, legal mechanisms, or established
precedents.
[40] On top of that or perhaps more importantly, the applicant is simply attempting to
manufacture compelling reasons to suit its own agenda, rather than relying on valid
legal grounds or facts presented in the case. They are trying to create justification
where none exists inherently within the evidence or established law.
Conclusion
[41] It follows from all these considerations that I am not satisfied that the appeal has
a reasonable prospect of success, nor have any compelling reasons been provided
that would justify granting leave to appeal in this matter.
[42) In the result, I make the following order:
42.1 Leave to appeal is refused.
42.2 The applicant to pay costs of this application on Scale B.
NZIWENI, J
JUDGE OF THE HIGH COURT
I

Appearances:
Counsel for the Appellant
Instructed by
Counsel for the Respondent
Instructed by
Advocate Stelzner SC
Advocate Nacerodien
The State Attorney
MsAHoosain
Advocate Vivier SC
Enderstein Malumbete Inc.
Mrs Pienaar
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