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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)

Case Number: 2025 -074447
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES : NO
(3) REVISED.
DATE 2025 -06-09
SIGNAT URE
In the matter between:
DRAGON CHROME BF (PTY) LTD
[REG. NR.: 2024/774409/07] 1st Applicant

JOOST SMUTS
[ID 7[...]] 2nd Applicant

GINTER SMUTS
[ID 9[...]] 3rd Applicant

FERGUS DERWIN
[ID 6[...]] 4th Applicant

and

PAUL KIETZMANN Respondent
This judgment was prepared and authored by the Judge whose name is reflected
and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for handing down is deemed to be 9 June 2025.


JUDGMENT


POTTERILL J

Background
[1] Dragon Chrome BF (Pty) Ltd’s [Dragon Chrome] sole business is the
benefic iation of chrome tailings through washing and processing to extract chrome
concentrate for sale to third parties. It is common cause that Dragon Chrome’s
business is solely conducted from Portion 1 […] of the Farm B […] 4[…] J2 North
West Province [the site]. It is further common cause that the site is registered in the
name of Chrome Capital. Furthermore it is not disputed that for Dragon Chrome to
perform its duties it had employees, utilised the services of a sub -contractor and a
security firm. Dragon Chrome is a vehicle for a partnership in the form of a joint
venture between th ree shareholder s, F12 and Liminico. The respondent in this
matter, of which Mr Kietzmann [Kietzmann] is the sole director of Chrome Capital
(Pty) Ltd [Chrome Capital] is the third shareholder holding 40% shareholding in
Dragon Chrome.

[2] The relationship between the parties is regulated by a contract and inter alia
provides that possession and control of the site w as given to Dragon Chrome to run
the plant on site. It is common cause that it conducted operations on site six days a
week for 24 hours per day.

[3] On 25 April 2025 Chrome Capital brought an urgent application before the
Johannesburg High Court interdicting Dragon Chrome and the other respondents in
the application from:
3.1 Interfering with or denying access to Chrome Capital, its directors,
employees and/or contractors;
3.2 Selling, disposing of or alienating and/or encumbering any of the
chrome ore, tailings, plant equipment, infrastructure and/or movable
assets;
3.3 Conducting any business operations on the site;
3.4 Excluding an/or removing Sentinal Security (Pty) Ltd from the site.
In addition an order was sought against the four applicants in casu in the following
terms:
(1) Immediately restoring Chrome Capital’s physical possession of the
site;
(2) Providing full and complete accounting to Chrome Capital;
(3) Declaring that any chrome sales, asset removals and/or operational
decisions without the consent of Chrome Capital or without a
unanimous written resolution, are lawful and of no force or effect;
(4) To restore Chrome Capital’s possession of certain assets.

[4] By agreement the urgent application was referred to arbitration before retired
Judge Harms scheduled to be heard on 20 June 2025.

[5] On 22 May 2025 Kietzmann arrived on site with interim protection order s.
These orders were issued against Joost Smuts, Ginter Smuts and Fergus D erwin of
Dragon Chrome i n terms of the Harassment Act 17 of 2011 [the Act]. This resulted
in Mr Derwin to be removed from the site, as well as the Fidelity Services, and all the
employees of Dragon Chrome. Moreover , Dragon Chrome’s sub -contractor was
removed from the site. On behalf of the applicants it was su rmised that due to this
action Dragon Chrome’s possession of the site was completely terminated.

[6] On behalf of the applicant it was argued that despite the restricted content of
the Harassment Orders issued by the Magistrate Dragon Chrome’s possession of
the site was completely terminated. These orders were given without notice to the
three individuals and no reasons in the application to the Magistrate set out why the
giving of notice would impede the application. The applicants are vindicating their
right to be heard by seeking the suspension of the orders. An application to
anticipate was plac ed on the roll , but was postponed because the Magistrate would
not attend to Court due to a personal crisis. On that date the matter will again be
postponed , if opposed , not affording them substantial redress. The matter is thus
urgent as Dragon Chrome cannot conduct business. If the matter is heard in the
ordinary Court then it would lead to the demise of Dragon Chrome.

[7] It was further argued by the applicant that the dispute in the arbitration
revolves around all these issues and the obtaining of the interim interdict was an
abuse of process. The interim interdict did not cater for the employees, the security
firm or the sub -contractor and thus they were unlawfully spoliated of their
undisturbed possession.

[8] On behalf of the respondent, Mr Paul Kietzmann, an answering affidavit of
over 150 pages was filed regurgitating the same facts over and over. This is
frowned upon by this Court. Most of it relates to the merits to be decided by the
arbitrator.

[9] In a nutshell the respondent’s argument is that a mandament of spolie is not
inherently urgent, especially where the two requirements of the mandament of spolie
has not been proven. The dispossession was in terms of lawful orders and therefore
the application must fail. Furthermore, the applicant s were not in undisturbed
possession because they were the initial spoliators . The applicant as spoliators
cannot be heard to shout “spoliation”. Furthermore, the applicants have not
quantified any averred losses by not being able to proceed with their business. In
any event, the applicant have invoked the remedies availed to them by service a
notice in terms of section 3(5) of the Act when they anticipated the return date for the
interim order on 24 hours’ notice. This set -down for 4 June 2025.

Decision on urgency
[10] I am satisfied that the matter is urgent. Despite the urgent application by
agreement being referred to arbitration the respondent sought to restra in and
effectively dispossess the applicants before this arbitration was heard. This is
frowned upon by this Court. Although this Court is not to determine the unlawfulness
of the interim order it is clear that at least two of the averments made to the
Magistrate were untruths. I also accept that the applicants will not obtain substantial
redress in due course because I can accept the submissions from senior counsel
that the anticipation order will only be dealt with at the earliest in August 2025. This
can be acc epted as it was conveyed to him from the Magistrates Court where the
matter was postponed to be on the postponed date postponed further.

[11] The fact that the applicants were in de facto possession before the spoliation
is clear. The possession need not be exclusive possession as the applicants had
control of the site.

[12] Pertaining to the second requirement, the deprivation of possession, the
orders obtained did not deprive the employees, the sub -contractor or the security
firm from entering the premises. The respondent has thus unlawfully despoiled the
applicants of control over the sit e. As to the defence of counter -spoliation , this
defence is rejected because the “counter -spoliation” of the respondent was not
effected insta nter and did not form part of the res gestae of that occasion.1

[13] I am satisfied that the applicants have proved the facts necessary to justify a
final order. I am thus satisfied to suspend the interim order pending the final
determination thereof. In view thereof all the applicants are successful and the sit e’s
possession must be restored to the applicants. The suspension follows as a natural
result of the success of the mandament of spolie.

[14] As for costs I am satisfied that there is no reason to not follow the ordinary
rule the costs should follow the result. I am also satisfied that the conduct of the
respondent, while agreeing to arbitration, to institute proceedings in the Magistrates
Court without notice to the applicants was mala fide . The conduct in filing an
excessive opposing affidavit further renders a punitive costs order reasonable.

[15] The following order is made:
15.1 Kietzmann (the respondent) is ordered to restore the Dragon Chrome’s
possession of the site and premises known as Portion 1 […] of the
Farm B […] 4[…] JQ, North West Province, that includes allowing
Dragon Chrome to deploy its security company Fidelity Security;
15.2 The implementation and execution of the interim protection orders
dated 16 May 2025 (under case numbers HA -770/2025, HA -767/2025
and HA -769/2025) is sus pended pending the outcome of the hearing,

1 Mthimkulu and Another v Mahomed and Others 2011 (6) SA 147 (GSJ) at 150D
as provided for in section 9(2) of the Protection from Harassment Act,
17 of 2011;
15.3 Kietzmann (the respondent) is ordered to pay the applicants’ costs,
including the costs of two counsel, on an attorney and client scale.


S. POTTERILL
JUDGE OF THE HIGH COURT

CASE NO: 2025 -074447

HEARD ON: 4 June 2025

FOR THE APPLICANT S: ADV. A.P.J. ELS SC
ADV. D.D. SWART

INSTRUCTED BY: Heymans & Co

FOR THE RESPONDENT: ADV. R. BLUMENTHAL

INSTRUCTED BY: Witz Incorporated

DATE OF JUDGMENT: 9 June 2025