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IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
KET CIVILS CC
and
MEC: COMMUNITY SAFETY, .ROADS AND TRANSPORT
IN THE FREE STATE PROVINCIAL GOVERNMENT
HOD: FREE STATE DEPARTMENT OF COMMUNITY
SAFETY, ROADS AND TRANSPORT
Not reportable
Case number: 3440/2025
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
Neutral Citation: Ket Civils CC v MEC: Community Safety, Roads and Transport in the
Free State Provincial Government & 1 Other (3440/2025) [2026] ZAFSHC 53
(12 February 2026)
Coram:
Heard:
Delivered:
Summary:
LoubserJ
6 November 2025
12 February 2026
Application for order directing respondents to give effect to
awards made by adjudicator in respect of road construction contracts - counter
application for declarator that applicant is not entitled to enforce the awards pending
review proceedings to be instituted .
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ORDER
1 The respondent's failure to comply with the rules of court and time periods in the
counter application is condoned, and the counter application is heard on a semi-urgent
basis together with the main application.
2 It is declared that the applicant in the main application is not entitled to enforce the
decisions of the adjudicator relating to contracts numbers C60/2019, C25/2019 and
C26/2019 between the parties pending a review to be instituted by the respondents in the
main application to have the said decisions declared invalid.
3 The review application shall be instituted by the respondents in the main
application within 30 calendar days of date of this order.
4 Costs of the main application will be costs in the review proceedings.
5 The applicant in the main application is to pay the costs of the counter application
on the party and party scale, including the fees of counsel on scale C.
JUDGMENT
LoubserJ
[1] In this opposed application, the applicant moves for the following orders in its
notice of motion:
'1 The first respondent is directed to forthwith give effect to the decisions of the adjudicator, Peter D
Davies in respect of:
1.1 Contract No.: C60/2019 - Special Maintenance of the P6/2 and P6/1 road between Wepener,
Dewetsdorp and Bloemfontein, dated 26 April 2025 and annexed to the founding affidavit as "FA4".
1.2 Contract No.: C25/2019 - Special Maintenance of the P41/2 road between Frankfort and Tweeling,
dated 8 May 2025 and annexed to the founding affidavit as "FA6".
1.3 Contract No.: C26/2019 - Special Maintenance of the P41/3 road between Reitz and Tweeling, dated
8 May 2025 and annexed to the founding affidavit as "FA?''.
2 Pursuant to the adjudication decisions set out in par 1 above, the first respondent is directed to pay
the applicant the following sums:
2.1 In respect of Contract No.: C60/2019, the sum of Rl8, 015, 202.38.
2.2 In respect of Contract No.: C25/2019, the sum of Rl9, 825, 186.54.
2.2 In respect of Contract No.: C25/2019, the sum of Rl9, 825, 186.54.
2.3 In respect of Contract No.: C26/2019, the sum ofR20, 542, 009.49.
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3 The first respondent is directed to pay the applicant interest on each of the sums set out in par 2
above at the rate of 11 . 75% a tempore morae to date of payment , both dates inclusive.
4 The first respondent is directed to pay the costs of this application on the scale as between attorney
and client.'
[2] In the founding affidavit, Mr Lekoatsa Mohapi, the sole member of the applicant,
sets out the history of the matter and the basis for the amounts now claimed from the first
respondent. In his affidavit he explains that the applicant is in the business of road
construction. In the course of 2019, the applicant entered into the three construction
agreements mentioned in the notice of motion with the first and second respondents'
department. These agreements were concluded pursuant to the department's
appointment of the applicant on the panel of contractors constituted together with others
for the upgrading and special maintenance of all roads in the Free State.
[3] While the construction agreements were already being carried out, however, the
auditor-general found that the panel had been irregularly constituted. The department
then terminated the contracts with the applicant. After litigation in this Division and in the
Supreme Court of Appeal, the last-mentioned court ordered the following, inter a/ia: (1)
reviewing and setting aside the decision of the department in appointing the applicant and
other panelists, and (2) the review and setting aside shall not affect the applicant's rights
to pursue any claims for payment emanating from its contracts, and the dispute resolution
mechanisms under the contracts shall endure post any termination of the contracts.
[4] Following these orders of the Supreme Court of Appeal, the parties herein agreed
to refer the disputes between them regarding all three contracts to adjudication by a
panelist chosen from the SAICE President's list, who turned out to be Mr Peter Davies
panelist chosen from the SAICE President's list, who turned out to be Mr Peter Davies
(Mr Davies), a civil engineer and adjudicator. Between 26 April 2025 and 13 May 2025,
Mr Davies then adjudicated the disputes a.nd handed down his decisions on the three
contracts. He found that the termination of the contracts by the department was invalid,
and he ordered the department to pay the applicant the amounts mentioned in the notice
of motion within 28 days of the decision on each of the contracts.
[5) According to the applicant's deponent, the applicant then promptly issued three
invoices to the department on 13 May 2025, reflecting the amounts awarded by the
adjudicator on each of the three contracts, but now including VAT on the different
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amounts. On the same date, the department responded by informing that the
adjudicator's decisions in favour of the applicant were referred to senior counsel for an
opinion. The department also undertook to advise in relation to payment of the amounts
upon receipts of counsel's opinion. Following further enquiries by the applicant about a
month later, the department informed the applicant that the adjudicator's decisions have
been formally referred to all internal stakeholders for review, and that the applicant would
be notified of the outcome of its review and intended action within a reasonable time.
When nothing further happened worth mentioning, the applicant launched this
application.
[6] In the founding affidavit, the deponent further points out that the parties have
agreed in their contracts that disputes between them would be referred to an adjudicator
for a decision. The contracts further provide that the adjudicator's decision is binding on
the parties unless and until revised by the tribunal and is enforceable as a matter of
contractual obligation between the parties and not as an arbitral award. The adjudicator's
decision would be final and binding if neither party has notified the other within the times
required in the contract that he is dissatisfied with a decision of the adjudicator and intends
to refer the matter to the tribunal. If no such notice of dissatisfaction was given, or given
timeously, then the decision becomes final and binding and so too does the obligation to
give effect to the decision promptly.
[7] In terms of clause 10.6.1 of the agreements, a party is allowed to disagree with
the decision of the adjudicator and to refer the matter to arbitration or court proceedings
within 56 days from receipt of the decision, provided that the decision shall be binding on
both parties unless and until it is revised by an arbitration award or court judgment ,
whichever is applicable in terms of the contract.
whichever is applicable in terms of the contract.
[8] The applicant then alleges in the founding affidavit that the department has not
given notice of dissatisfaction with the adjudicator's decisions at all. The decisions are
final and binding, and must be given effect to. Neither has the department referred the
decisions to arbitration or court proceedings within 56 days from receipt of the decisions.
Payment in terms of the decisions is therefore now due, the applicant says.
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[9] In its answering affidavit the department submits that the decisions of the
adjudicator are not only irrational but also so flawed that they cannot be enforced. As a
result, the respondents intend reviewing and setting aside the three decisions of the
adjudicator. In such a process, the adjudicator would have to be joined as a respondent
and the records pertaining to these decisions would have to be produced, the department
says.
[1 O] The respondents allege, inter a/ia, that the applicant was de-registered with the
CIPC at the time of the referral to the adjudicator, that the papers before the adjudicator
clearly showed that the applicant had abandoned the works under the contracts and that
the contracts were lawfully terminated, that the claims before the adjudicator had already
become prescribed, and the applicant was not tax compliant and the respondents could
therefore not be ordered by the adjudicator to pay substantial amounts to the applicant.
Because the works had been abandoned by the applicant, the department suffered a loss
of approximately R32 million, it is said. In addition, the adjudicator erred and misdirected
himself in determining the amounts that had to be paid by the respondents.
[11] Furthermore, the respondents contend that they have made it clear in
correspondence with the applicant right from the beginning that the department did not
accept that it was liable to pay the applicant in accordance with the adjudicator's
decisions. The department has therefore made its dissatisfaction with the decisions clear.
It is further stated that the fact that a decision is binding unless and until it is revised by
an arbitration award or court order, as stipulated in the contracts, does not mean that the
decision is implementable. The department therefore denies that the decisions of the
adjudicator had to be complied with in the circumstances.
[12] Lastly, the department moved for condonation for the late filing of its answering
[12] Lastly, the department moved for condonation for the late filing of its answering
affidavit. In a nutshell, it alleges that its senior counsel did not produce the answering
affidavit as requested, and new senior counsel had to be appointed. This caused a delay
of approximately one month in the filing of the affidavit.
[13] In its replying affidavit, the applicant persists in the relief that it seeks, and points
out that it was in fact re-registered with the CIPC on 2 September 2025. In any event, the
records of the CIPC show that the de-registration process was commenced with, but not
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brought to finality. It was never issued with a final de-registration letter. It further says that
the allegations of non-tax compliant are irrelevant to the relief sought in the application.
The applicant also informs that it is not opposing condonation for the late filing of the
respondent's answering affidavit.
[14] Together with the filing of its answering affidavit on 17 September 2025, the
department filed a conditional counter-application on a semi-urgent basis. In this counter
application it is pleaded that, in the event that the main application is not dismissed, the
department seeks a declarator that the applicant in the main application is not entitled to
enforce the decisions of the adjudicator pending a review of those decisions to declare
the decisions invalid. The reasons for such a declaration of invalidity are that the
adjudicator was not properly appointed, the matter was beyond his jurisdiction , he was
biased in favour of the applicant in the main application, he did not apply his mind to the
matter, his decisions were irrational, he failed to take the department's submissions into
account, and he failed to comply with the department's right to be heard. The department
furthermore prays that it be ordered to institute the review application within 30 days.
(15] In its founding affidavit filed in support of the counter- application, the department
states that it should not be required to pay the applicant in the main application, because
the awards were wrongly made. The payments should be held in abeyance pending the
outcome of the review application, it says. Should these payments now be made, it is
unlikely that the department will be able to recover it if it is successful in the review. The
counter-application is opposed on the same grounds as relied on by the applicant in the
main application.
[16] This then is a general overview of the applications and the papers that served
before the Court for adjudication. It can all be summed up as follows: on the one hand
before the Court for adjudication. It can all be summed up as follows: on the one hand
the applicant is seeking to enforce compliance with. the three decisions of the adjudicator
because of its contractual right to do so. On the other hand, the department seeks a
declarator that the applicant is not entitled to enforce the decisions before a court of law
has not reviewed those decisions.
[17] Now, the contractual rights on which the applicant relies, clearly concerns the
alleged failure of the department to give notice of its dissatisfaction with the adjudicator's
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decision timeously, or at all. This failure, the applicant submits, made the decisions of the
adjudicator final and binding on the parties. It indeed appears that the department has
not given such formal notice timeously or at all, in terms of the contracts between the
parties. However, it cannot be denied that the department has expressed its misgivings
regarding the decisions right from the beginning, albeit in a different manner than the one
envisaged by the contracts. It is clear from correspondence between the parties at the
time that the department has not accepted the awards made by the adjudicator. In the
process, it has sought assistance from different senior counsel to oppose the decisions
of the adjudicator by way of referring the matter to court. It is also clear that the matter
became delayed because the department's counsel had not provided the answering
affidavit in time.
[18] In such circumstances this court is not inclined to grant the relief sought by the
applicant, simply because the terms of the contracts relating to dissatisfaction have not
been strictly complied with by the department. At the same time, there appears to be
reasonable prospects of success on a review of the adjudicator's decision. I am mindful
of the fact that the adjudicator was not a party to this application, and this Court is
therefore not privy to his views on the matter. In review proceedings, he will have full
opportunity to put his side of the story, so to speak, on the table. I am also mindful of the
fact that should the department now be ordered to pay the applicant; such payment would
be made from the public purse in circumstances where the last word on the adjudicator's
awards has not been spoken yet. The counter-application must therefore succeed.
[19] On the other hand, should the department's review application not be successful,
it speaks for itself that the adjudicator's decision will stand, and the department will be
it speaks for itself that the adjudicator's decision will stand, and the department will be
obliged to pay the applicant in terms of the awards made by the adjudicator. The effect
hereof is that it would be premature at this moment to either grant or dismiss the main
application, because the application is dependent on the outcome of the pending review.
The application will therefore not be dismissed, and the condition stated in the counter
application has therefore been fulfilled.
[20] As for costs, it speaks for itself that only the review court will be in a position to
finally determine the issue of costs in the main application. The applicant in the main
application, however, will be liable for the costs of the counter application.
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[21] The following order is made:
1 The respondent's failure to comply with the rules of court and time periods in the
counter application is condoned, and the counter application is heard on a semi-urgent
basis together with the main application.
2 It is declared that the applicant in the main application is not entitled to enforce the
decisions of the adjudicator relating to contract numbers: C60/2019 , C25/2019 and
C26/2019 between the parties pending a review to be instituted by the respondents in the
main application to have the said decisions declared invalid.
3 The review application shall be instituted by the respondents in the main
application within 30 calendar days of date of this order.
4 Costs of the main application will be costs in the review proceedings.
5 The applicant in the main application is to pay the costs of the counter application
on the party and party scale, including the fees of counsel on scale C.
PJ LOUBSER
JUDGE OF THE HIGH COURT
Appearances
For the applicant (main application):
Instructed by:
For the respondents (main application):
Instructed by:
N Luthuli
Moeti Kanyane Inc., Centurion
c/o Honey Attorneys,
Bloemfontein
R Williams SC
Office of the State Attorney ,
Bloemfontein.
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