IN THE LAND COURT OF SOUTH AFRICA
HELD AT RANDBURG


CASE NO: LCC03/2021B








Heard on 19 May 2025 Delivered on 3 June 2025
In the matter between:

MPHELENG COMMUNAL PROPERTY
ASSOCIATION Applicant

And

KGOSHIGADI MATHEBE OF
BANTWANE TRADITIONAL
COMMUNITY
First Respondent
BANTWANA TRADITIONAL COUNCIL
Second Respondent
HEADWOMAN MRS MATHEBE
MPHELENG VILLAGE
Third Respondent
MR APHANE (THE UNKOWN PERSON Fourth Respondent
(1) REPORTABLE: Yes ☐/ No ☒
(2) OF INTEREST TO OTHER JUDGES: Yes ☐
/ No ☒
(3) REVISED: Yes ☒ / No ☐



Date: 03 June 2025 Signature:

2 WHO INTENDS OCCUPYING A NEW
RESIDENTIAL /BUSINESS SITE
UNLAWFUL LY )




ORDER

1. The application is dismissed.
2. No order as to costs.


JUDGMENT


DU PLESSIS AJ

Introduction
[1] This matter came before me as an urgent application in which the Mpheleng
Comm unal Property Association (the A pplicant ) seeks an order declaring the First to
Fourth Respondents in contempt of a court order granted by this Court on 29 April
2024. The original order interdicted the allocation, subdivision, clearing, and
occupation of land forming part of the farm Zondagsfontein, located in Limpopo
Province, which is the subject to a pending land claim lodged by the A pplicant.
[2] The relevant portion of the order reads as follows:

“Having perused the papers filed on record and having heard the applicant’s legal
representatives the following order is made:

That the First, Second, Third, Fourth, Fifth, Sixth and Seventh Respondents are
interdicted or restrained from invading, cutting stands, allocating both residential and/or business site but not limited to dividing land into erven or sub -erven, clearing
vegetation and erecting fences including temporary and/or permanent structures on the land described as Zondagsfontein 32 -JS, within the Magisterial District of Moutse,
Greater Sekhukhune District Municipality, Limpopo Province pending finalisation of the

3 land claims under reference number R/5/121/455/46267 on behalf of the applicant
(hereafter referred to as the Claimant community).”

[3] The Applicant represent s the “claimant community.” The Bantwane Traditional
Council was cited as the F ourth Respondent in the 29 April 2024 court order. However,
neither Kgoshigadi Mathebe (of the Bantwane Traditional Community), Headwoman
Mrs Mathebe (Mpheleng Village), nor Mr Aphane was a party to that order. The
Seventh Respondent was broadly cited as “ALL UNLAWFUL OCCUPIERS OF LAND
SITUATED AT ZONDAGSFONTEIN...” Kgoshi Frank Shi kwane Matlala was cited as
the First R espondent , and Headman Abraham Matlou as the Fifth R espondent.

[4] The A pplicant alleges that, despite this court order, the Fourth Respondent, Mr
Aphane, proceeded to occupy and develop a portion of the land. This occupation allegedly followed an allocation made by one or more of the First to Third
Respondents, namely the traditional leader, th e traditional council, and the
headwoman. The application seeks an order of committal for contempt , or,
alternatively, a suspended sentence pending compliance with the court order .
[5] The following factual chronology emerges from the a ffidavits. In August 20 24,
the Fourth Respondent, Mr Aphane, purportedly purchased two stands from Messrs
Michael and Ernest Lepota for R6 000 and R7 000, respectively. These individuals
claimed ancestral ownership of the land and stated that they were allocated the
parcels in 2 017. Mr Aphane then approached the local traditional leadership,
specificall y Headman Matlou and the Third R espondent, Headwoman Mathebe, to
request registration of the site and the issuance of a Permission to Occupy (PTO)
certificate. As part of this process, he paid R700 to Mr Matlou and R1 700 to Ms
Mathebe. At the time, Mr Matlou was not formally recognised as headman under
applicable legislation for the Ntselemotse Section.
[6] On 25 February 2025, the court order was brought to Mr Aphane’s attention.
Nevertheless, by 1 March 2025, he had begun offloading building materials and
erecting a brick stru cture, supported by poles. The A pplicant, accompanied by a fellow
CPA member, inspected the site and documented the development with photographs annexed to its papers.

4
[7] In his founding affidavit, Mr Jerry Nnawe, deposing on behalf of the A pplicant,
states that the construction activities occurred on a site unlawfully allocated to M r
Aphane by one or more of the First to Third R espondents. The A pplicant contends t hat
this conduct constitutes a direct breach of the court order. It further alleges that attempts to resolve the matter outside court were unsuccessful. Urgency is grounded
in the Applicant’s limited resources, its status as a historically disadvantaged community, and the principle that ongoing contravention undermines both the rule of
law and the authority of court orders.

[8] The First R espondent opposes the application mainly based on the A pplicant’s
failure to meet the legal requirements for a finding of c ontempt. She denies allocating
the site or acting in wilful disregard of the order. The Second and Third R espondents
did not file separate affidavits; however, the Third Respondent filed a confirm atory
affidavit supporting the First Respondent’s version.
[9] In her confirmatory affidavit, the Third Respondent avers that Mr Aphane came
to her in the company of Michael and Ernest Lepota. These individuals stated they had sold a site to Mr Aphane and sought her assistance in facilitating registration. She
denies making any allocation and says she referred the matter to the tribal office at
Ntwane. After receiving a letter of demand, she informed the tribal office, which
acknowledged the court order, saying they will inform Mr Aphane of the order .
However, Mr Aphane never returned to the office to receive further information.

[10] The A pplicant in reply, argued that the Third Respondent’s conduct amounted
to tacit approval or acquiescence, particularly given her role in facilitating documentation and payments. The Applicant contends that she had a duty to comply
with the order and prevent further encroachments by alerting the community.

[11] When the matter initially came before the Land Court, Cowen DJP requested
that Mr Aphane obtain legal representation and file an answering affidavit before the case could proceed. In his affidavit, Mr Aphane confirms that he purchased the land
in August 2024 from the Lepota brothers. He asserts that he acted in good faith,
believing them to be the rightful owners, and attaches documentation purporting to

5 confirm ownership, including a written sale agreement. He also notes that he agreed
with the Matemotja families to pay R22 000 for using the land on which the family
graves are situated, and to put a fence around the graveyard.

[12] Mr Aph ane contends that the Lepota brothers were not parties to the original
interdict and, as such, he believed the transaction lawful. By the time he became aware of the court order, construction had already begun. He maintains that he was waiting
for the PTO to be finalised and denies wilful disobedience of the order.
[13] The A pplicant, in reply, rejects the transaction’s validity, characterising it as a
disguised allocation. It also points out the mismatch between the surnames of the sellers and the family whose graveyard it is.
[14] The A pplicant annexes a PTO issued in Mr Aphane’s name on 7 January 2025,
after the order. It contends that issuing this PTO, which was sanctioned by the
traditional council, constitutes a prohibited allocation and thus amounts to prima facie
contempt. Mr Aphane’s statement that he would not cease construction unless instructed by the traditional authority is not denied and is taken as an admission of
disregard for the court’s authority.
[15] The question for determination is whether the conduct of each respondent,
particularly that of Mr Aphane, amounts to contempt of court.

Requirement s for contempt

[16] An important function of the rule of law, a foundational value of our Constitution,
is upholding the courts' dignity and authority . This is c rucial, enabling the court to carry
out its functions. S ection 165(5) of the Constitution provides that court orders are
binding on all persons and organs of state to whom they apply and that no person may
interfere with the functioning of the courts. Disobedience erodes judicial authority and,
if unchecked, could provoke a constitutional crisis.
[17] To uphold the court's dignity and ensure compliance with the rule of law, courts
have the authority to guarantee that their orders are followed. One mechanism to

6 achieve this is through a contempt of court order when there is wilful disobedience to
lawful court directives. Contempt orders are intended to impose a penalty that
vindicates the court’s honour when a prior order is ignored, with the hope that it will
compel compliance with the previous order.
[18] Civil contempt occurs when a litigant fails to comply with a court order granted
in favour of another. Such disregard of the court order typically arises outside the court
and prompts the other party to initiate an application to compel obedience.
[19] In Secretary of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma
1
the Constitutional Court held that contempt requires proof of three elements:

a. An order was granted against the alleged contemnor;
b. The alleged contemnor was served with the order or had knowledge of it;
c. The alleged contemnor failed to comply with the order.

[20] If these three elements are established, wilfulness and bad faith are presumed,
and the evidentiary burden shifts to the respondent to rebut that presumption. Failing this, contempt is established.
[21] Because contempt proceedings may carry penal consequences, a court , faced
with an ambiguously worded order, must adopt a strict and narrow interpretation of the
order. More so in the absence of a reasoned judgment explaining its background and
intended reach, as is the case here, the court should be cautious not to expand its
meaning in a manner that could unjustly lead to imposing a criminal sanction on the
alleged contemnors .


1 2021 (11) BCLR 1263 (CC).

7 Was the order of 24 April 2024 granted against the respondents ?
[22] A threshold issue is whether the respondents cited in this application were
bound by the court order of 29 April 2024. As noted earlier, contempt of court can only
arise where the order in question applies to the alleged contemnor. The Applicant bear
the burden of establishing this foundational element.

[23] Not all the respondents in the current application were cited in the original court
order. Specifically, Kgoshigadi Mathebe of the Bantwane Traditional Community, Headwoman Mrs Mathebe of Mpheleng Village, and Mr Aphane were not named
parties in that order. This raises a preliminary hurdle f or the A pplicant.
[24] The Second R espondent , the traditional council , is not a person but a structure
made up of individuals. This makes it challenging to attribute personal culpability ,
which makes it difficult to attribute specific knowledge and responsibi lity to an
identifiable individual within the council, which in turn means that one cannot know if the order was wilfully disregarded. In other words, who should have had the
knowledge, who had the knowledge, who disregarded the order, and were they indeed
mala fide? In Meadow Glen Home Owners Association v City of Tshwane Metropolitan
Municipality
2, the Supreme Court of Appeal cautioned that :

‘…it must be clear beyond reasonable doubt that the official in question is the person
who has wilfully and with knowledge of the court order failed to comply with its terms. Contempt of court is too serious a matter for it to be visited on officials, partic ularly
lesser officials, for breaches of court orders by public bodies for which they are not personally responsible.’
3

[25] This principle applies equally to members of traditional councils: there cannot
be liability for contempt unless it is shown that an identified individual knowingly and
wilfully disobeyed an order directed at them. If a specific individual within the council,
tasked with ensuring compliance with the court order, fails to act and that person is
properly cited, they may be held in contempt, provided all the requisite elements are
proven. However, as a collective entity, a traditional council cannot be held in

2 [2015] 1 All SA 299 (SCA).
3 Ibid p ara 22.

8 contempt. Beyond the practical impossibility of enforcing imprisonment against an
entity, contempt proceedings require personal accountability and a demonstrated
capacity to act or refrain from acting. For this reason, the focus must remain on
whether the actions or omissions of specific individuals within the council satisfy the
requirements for a finding of contempt.
[26] With regard to the First and Third Respondents, the Applicant faces a similar
challenge. Altho ugh the Applicant alleges that they facilitated what amounted to an
allocation, neither was cited in the original court order. That said, their predecessors
were cited and bound by the order. Should the new traditional leader, now occupying
an office cited in the original order, adopt the same allegedly contemptuous stance as her predecessor, she may be liable. The court order binds her due to the office she
holds, but she will only be in contempt if it is demonstrated that she herself acted in wilful and mala fide contravention of the order of which she was aware.
[27] As for the Fourth Respondent, the Applicant contends that he falls within the
scope of the order. However, they describe him as an “unknown person,” whereas the order refers to “unlawful occupiers.” The phrase “unknown persons” does not appear
in the court order and cannot be retroactively read into it. But the order does not use
that term. It refers to “all unlawful occupiers.” Whether Mr Aphane falls within this category is a matter for careful assessment.
[28] The determination of whether Mr Aphane is an “unlawful occupier” hinges on
the lawfulness of his occupation. He asserts that he purchased the stands from the Lepot a brothers lawfully and was in the process of having the PTO registered in his
name. If that assertion is accepted, he states the transaction is lawful under the relevant customary or statutory framework, then he is not an unlawful occupier and
the order does not apply to him.
[29] However, if the sale and subsequent registration are invalid, either because
they constituted a fresh allocation prohibited by the order or because the Lepota brothers lacked the authority to alienate the land, then Mr Aphane’s occup ation may
fall within the meaning of “unlawful occupier.” In that event, the order would apply to him, and any development or clearing of the land would be in breach.

9
[30] Much thus turns on whether the conduct in question constituted an “allocation”
as prohibited by the order. The respondents maintain that the process was merely a change in name on an existing PTO, an administrative act rather than a substantive
reallocation of land rights. The Applicant disputes this and argues that the transaction,
followed by formal registration, amounted to a new land allocation violating the order.

[31] Mr Aphane’s understanding, as explained in his answering affidavit, is that the
site had been allocated to Mr Lepota in 2017. In the heads of argument, it is contended that acc ording to the Bantwane Traditional Community’s practices, an individual who
has been allocated a site is not prohibited from selling it. However, the transfer process includes a procedure whereby the name on the PTO registry must be changed. Similar
to fir st-time allocation, this process requires endorsement by the Tribal Office in
Ntwane, which must update the register to reflect the new holder. As will be shown
later, this understanding is incorrect. Still, this is not the end of the road, as the other
requirements must also be met.
Did the parties know about the order?

[32] It is not disputed that all the respondents had knowledge of the court order. The
First and Third Respondents, as traditional leaders in positions of authority, were
notified in their official capacities, and the A pplicant provided sufficient evidence that
they were aware of the order’s terms. Mr Aphane acknowledges that the order was brought to his attention on 25 February 2025, after the sale had been concluded and
construction had com menced. While his knowledge postdates the initiation of his
activities on the land, it is significant that he continued construction despite being informed of the order. Knowledge of the order is a fundamental element in contempt
proceedings, as it establishes whether a respondent could have acted wilfully in
defiance of the court’s directive. This element is therefore satisfied for all respondents.
Was there a failure to comply with the order?

[33] This requirement is intertwined with the respondent’s justification (and thus
denial of mala fides) and will be discussed together. The respondents believe they did

10 comply with the order since Mr Aphane bought the site from the Lepota brothers, and
the other respondents merely facilitated the site registration. There was thus no
allocation, as is prohibited. I disagree.
[34] The court order of 29 April 2024 does not expressly prohibit the sale of stands.
On that basis alone, I accept that the sale agreement concluded between the Lepota brothers and Mr Aphane falls outside the direct ambit of the interdict. However, the act
of sale must be distinguished from the process that follows it. In communal tenure systems, the question of who may lawfully exercise rights over a particular parcel of
land is governed by the rules and social structure of the community. These rules often
require endorsement by traditional leaders, and the validity of transactions depends
on compliance with these internal norms. It is not simply a sale from the Lepota
brothers to Mr Aphane, with the registration a mere formality. There is usually a
process that oversees the transferring of these rights in line with community rules, often following a consultation process .
[35] Such rights are thus relational and socially embedded.
4 Access to land is
generally tied to group membership and community authorisation. While a person may
claim to have acquired rights through sale, those rights only become effective once
the traditional authority recognises them after a consultative process with the relevant
community structures.
[36] As the headwoman, Ms Mathebe, stated:

“[Mr Aphane] came to my home in the company of the two brothers, only known to me
as Michael and Ernest respectively, and told [me] that he bought the said site from the brothers. They wanted me to assist them in the procedure of getting the site registered,
which is something done at the Tribal Office at Ntwane, Moshate. We as the Headpersons only write confirmatory letters that the prospective occupier is indeed a
resident of our respective vil lages . The two brothers confirmed that they indeed sold

4 See Weeks, S. M., & Claassens, A. (2011). “ Tensions between vernacular values that prioritise basic
needs and state versions of customary law that contradict them. ” Stellenbosch Law Review , 22(3) page
828.

11 the particular site (which is a combined site of the two sites that belong to each of
them). ” [own emphasis]

[37] This means that, even assuming the sale agreement was concluded, the
registration of the site in Mr Aphane’s name could not occur without authorisation from the traditional leadership. The central issue is whether such a step amounts to a mere
clerical registration or a substantive (re)allocation of land.

[38] These contextual complexities, the sale, the involvement of traditional
authorities, and the broader land dispute, frame but do not determine the immediate question before this court. The core issue in the contempt application remains whether
the conduct attributed to the respondents, particularly the process leading to the
registration of the site in Mr Aphane’s name, constitutes an “allocation” as
contemplated in the court order.
[39] The respondents deny that the procedure was an allocation and framed it as a
routine change of name on the PTO, following a private sale. The Applicant disputes
this, arguing that the formal involvement of the traditional leadership in endorsing the
change constituted a fresh allocation of land, which is in breach of the interdict.

[40] The headwoman specifically denies that she allocated the site. The A pplicant
does not directly engage with this denial but asserts that, as headwoman of Mpheleng village, she bears the duty to allocate residential and business sites within the
traditional community. This response implies that her involvement in the process had
allocative significance.
[41] In communal land systems, “allocation” typically refers to the conferral of a right
to occupy or use unallocated land, which is then formalised through a PTO. This is not
a transfer of ownership but rather a locally recognised right of occupation, subject to
community norms. Such rights cannot be freely transferred outside the community
without proper authorisation.
5 The process usually ends in the appropriate traditional
authority providing the holder of the rights a "Permission to Occupy” certificate, setting

5 Okoth- Ogendo HWO (2008) “The nature of land rights” in A Claassens & B Cousins Land, Power &
Custom page 100 explains such a system in detail.

12 out the permitted use of the land. Since the holder of the PTO is bound by the social
rules of the community, a PTO cannot be freely sold or transferred without the
necessary approval.6
[42] Does the traditional leadership's endorsement of the PTO transfer after the sale
amount to a new allocation? In my view, it does. The term “allocation” is not confined
to the initial assignment of unallocated land. Rather, allocation encompasses the
conferring, reassigning, or validating of occupational rights, regardless of whether
another person pr eviously held rights to the same land. Updating the PTO register, the
receipt of payments by traditional officials, and the formal recognition of Mr Aphane’s right to occupy constitute a fresh allocation for the purposes of the interdict , and thus ,
the third element is also met, specifically as far as the first and third respondents are
concerned.
Did the respondents wilfully fail to comply with the order ( mala fides )?

[43] This then turns to the question of the mala fides of the respondents. If the
respondents genuinely understood the process to be a continuation of existing rights
rather than a fresh allocation, then the Applicant’s case can not succeed. That is
because the element of mala fides is not present as the respondents, even if they were
mistaken, believed that their conduct fell outside the scope of the order.
[44] In SAMWU obo Members v Thaba Chweu Local Municipality ,
7 the Labour C ourt
explained:

‘… for this Court to be satisfied that a respondent, in a contempt application, is indeed
in contempt of Court, the Court must be satisfied beyond reasonable doubt that: (1)
there was a refusal to comply with the order; (2) this refusal was willful (deliberate);
and (3) the deliberate refusal to comply must be mala fide, in other words there must
be a complete absence of any kind of bona fide justification for the refusal to comply
(even if this justification relied on is ultimately found to be objectively unreasonable or
unsustainable). Crystalised down to its simplest terms, a respondent is in contempt

6 Chanock M Land, custom and social order (1985) explains this system at page 231 .
7 [2015] ZALCJHB 31.

13 where the respondent knows and understands the terms of the order and what is
required to be done to comply with the order but then without any cause or justificatio n
deliberately does not comply.’8

[45] The meaning of “allocation” in the context of this order is not self -evident,
particularly in the absence of a reasoned judgment and given the overlap between administrative functions and allocative authority. While the conduct constituted an
allocation, I am not persuaded that the respondents acted mala fide. Instead, they
appear to have relied, even if mistakenly, on the belief that their conduct was lawful.
However, now that the term “allocation” has been clarified in this context, similar
conduct in the future may no longer be defensible.
The request to invalidate the sale

[46] In their replying affidavit to the fourth respondent’s answering affidavit, the
applicants request, in the alternative, that should this Court find the sale to have been
valid (which they continue to dispute), it should declare the transaction null and void.
However, this relief was not sought in the founding papers, nor were the alleged
sellers, Messrs Michael and Ernest Lepota, or other potentially affected parties joined
to the proceedings. I agree with the Fourth Respondent that seeking such relief for the
first time in reply is procedurally impermissible. This Court cannot make an order with far-reaching consequences for parties without being cited or afforded an opportunity
to be heard. If the applicants seek to challenge the lawfulness of the underlying transaction, that must be done through a properly formulated and separately instituted
application.
[47] It should be noted that while a valid sale may have occurred between private
parties, it does not necessarily follow that the registration of the PTO in Mr Aphane’s
name was valid or lawful. That question hinges on whether the appropriate decision-
making processes were followed according to the relevant community rules, whatever
those may be. The validity of that process was not challenged in this application and
is therefore not for me to decide.


8 Ibid para 27.

14 [48] A further complicating factor in such an assessment is the ongoing dispute over
which community is the rightful custodian of this land. This question goes to the heart
of who has the authority to decide its use and occupation. It is, however, a matter that
must be determined in the context of the broader restitution proceedings. It cannot be
resolved in this contempt application.

Costs
[49] Both parties sought cost orders. I am mindful, however, that neither party was
wholly successful. Given the broader context in which this dispute arises, I consider it
just and equitable not to burden either party with an adverse costs award.

Conclusion
[50] This case underscores the tensions where unresolved restitution claims,
contestation over who the rightful owners of the land are, and community -level
transactions converge. In this legal and social uncertainty, some parties act in good faith, others test boundaries, and all await clarity that is too long in coming. Courts
must respond with procedural flexibility balanced by judicial restraint, stepping carefully but resolutely into these contested spaces in an attempt to provide clarity.

Order
[51] The followi ng order is made:
1. The application is dismissed.
2. No order as to costs.


______________
WJ du Plessis
Acting Judge of the Land Court


Date of hearing:
19 May 2025
Date of judgment:
3 June 2025

For the A pplicant:
Mr KK Kekana instructed by G
Maswanganye Attorneys

For the F irst to Third R espondents: Mr Mathebe instructed by M Wentzel Inc

For the Fourth Respondent:
KMC attorneys