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IN THE HIGH COURT OF SOUTH AFRICA, MPUMALANGA DIVISION,
(MBOMBELA MAIN SEAT)
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISEDYES/NO ~·.
26June 2025
DATE G RE
MOUNTAINLANDS ESTATE OWNERS
ASSOCIATION
SAPPI SOUTHERN AFRICA LIMITED
SIMPLY SEE (PTY) LIMITED
BARBERTON CHAMBER OF BUSINESS
and
MPUMALANGA TOURISM AND PARKS
AGENCY
SIPHELELE GENERAL TRADING 15 (PTY) LIMITED
THE MEC OF THE MPUMALANGA DEPARTMENT; Case No. 1957/2024
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
First Respondent
Second Respondent

PUBLIC WORKS, ROADS AND TRANSPORT Third Respondent
CITY OF MBOMBELA LOCAL MUNICIPALITY Fourth Respondent
JUDGMENT
MONTSHO-MOLOISANE AJ
[1.] This is an application for a final interdict lodged by the Applicants against the
First and Second Respondents, where they seek the following final relief:
1.1. That the First and Second Respondents, acting directly or through
their employees or agents, are interdicted from demolishing any
structures or undertaking any form of construction activities on any of
the Geosites forming a part of the Barberton Makhonjwa Mountains
Geotrail situated on, and adjacent to the P77-1 Provincial road which
connects the town Barberton with the Bulembu/Josefsdal border post
on the Eswatini border, without the written consent of the Applicants,
and the prior written permission of the Third Respondent;
1.2.. That the First Respondent pay the costs of this application on an
attorney and client scale, and that any other Respondent opposing the
relief sought, also pay the costs on a similar scale; and
1.3. That further and/or alternative relief be granted to the Applicants.
[2.] No relief is sought against the Third and Fourth Respondents, who have been
joined as parties who may have an interest in the subject matter of the
proceedings.
2
[3.] The only party opposing the application is the First Respondent, and the
grounds of opposition are outlined in the Answering affidavit deposed to by its
Executive Manager: Biodiversity Conservation Management, Ms Noncebo
Kunene.
The Applicants
[4.] The First Applicant is Mountainlands Estate Owners Association ("Owners'
Association"), a voluntary association consisting of the registered owners of
the properties comprising the Mountainlands Estate. It is the owner of Portion
25 of the Farm Dycedale 368 JU, Mpumalanga province, where it is also
domiciled.
[5.) The Second and Third Applicants are companies incorporated in terms of the
company laws of South Africa, and are the registered owners of the
Remainder of Farm Schoonoord 380 JU, Farm Loenen 381 JU, as well as
Portion 26 and other portions of the Farm Dycedale 368 JU, Mpumalanga
province.
[6.] The Fourth Applicant is the Barberton Chamber of Business ("the Chamber of
Business"), a voluntary common law association based in Barberton,
Mpumalanga province.
3
The Respondents
[7.] The First Respondent is the Mpumalanga Tourism and Parks Agency
("MTPA"), a government agency established in terms of the Mpumalanga
Tourism and Parks Agency Act, 5 of 2005 ("the MTPA Act").
[8.] The Second Respondent is the contractor that was appointed by the MTPA
on 29 September 2023, to upgrade and refurbish the Geosites located on the
First to Third Applicants' properties, and on other properties along the
Barberton Makhonjwa Geotrail.
[9.] The Third Respondent is the Member of Executive Council of the Mpumalanga
Department of Public Works, Roads and Transport ("the MEC for Public Works
and Roads"), and the Fourth Respondent, is the City of Mbombela Local
Municipality ('the Municipality"). The Third and Fourth Respondents are not
opposing the application.
Background facts
[1 0.] From the affidavits filed of record, the following facts are common cause:
10.1. The First, Second and Third Applicants are the registered owners of
the fixed properties, located within the Barberton Makhonjwa Geotrail;
10.2. The said properties of the First to Third Applicants constitute 9(nine)
of the 13(thirteen) Geosites along the Barberton Makhonjwa Geotrail;
10.3. The location of the 13 Geosites, the infrastructure and facilities
constructed thereon, fall partly within and partly out of the road reserve
4
over which the P77-1 provincial road has been constructed . The road
reserve traverses through the properties of the First to Third
Applicants. The P77-1 is a provincial road as defined in Section 1 of
the Mpumalanga Roads Act , 1 of 2008.
10.4. The infrastructure and facilities on the 13 (thirteen) Geosites were
constructed during 2012/2013 by the Chamber of Business in terms
of the Barberton Tourism and Biodiversity Corridor Programme
("Batobic"), in collaboration with the national Department of Tourism
and the Department of Forestry, Fisheries and Environment ("the
DFFE"), the Municipality, the provincial department of Public Works
and Roads, and with the consent of all the relevant property owners.
10.5. The Barberton Makhonjwa Geotrail is a 37-kilometer self-drive trail
that features 13 (thirteen) view sites ("Geosites"), located at significant
geological sites. Each Geosite has illustrated interpretative panels that
explains the unique geological significance of the site, and some are
provided with picnic facilities.
10.6. The Barberton Makhonjwa Geotrail is a tourist attraction that exploits
the unique geology and natural attributes of the Barberton Makhonjwa
Mountains.
10. 7. The significance of the Geosites is that visitors and tourists can stop
and have views thereof, learn about the unique geology and history of
the place, and make use of the infrastructure and facilities established
5
there, which consist of permanent structures leading off the road to
paved parking areas, and brick and stone walls displaying tourist
information, as well as concrete retaining walls and baboon proof
waste bins.
10.8. Since the completion of the Geotrail, the Chamber of Business has
maintained the Geosites by keeping them clean and effecting repairs
and maintenance as required, to the satisfaction of the stake holders.
10.9. In July 2018, the United Nations Educational, Scientific and Cultural
Organisation ("UNESCO") inscribed the Barberton Makhonjwa
Mountains as a World Heritage Site, at its 42nd session, for its
geological significance and they became known as the BMM-WHS.
UNESCO recognised the site for containing the best preserved, oldest
and most diverse sequence of volcanic and sedimentary rocks on
earth.
10.10. Pursuant thereto, the State assumed obligations under the World
Heritage Convention Act, 49 of 1999 ("the Convention Act"), which
related to the management, protection and promotion of the
BMM-WHS.
10.11. On 12 March 2021, the then Minister of the DFFE, Ms B.D. Greecy,
declared the MEC for Finance, Economic Development and Tourism:
Mpumalanga province ("the MEC for Tourism"), as the authority
responsible for the management, protection and promotion of the
BMM-WHS, by publication in Governmental Gazette No 44272, Notice
213, in terms of the provisions of Section 8 of the Convention Act.
6
10.12. On 13 August 2021, the MEC for Tourism, Mr P.V. Mkhatshwa, wrote
a letter assigning the MTPA, the First Respondent herein, as the
Management Authority of the BMM-WHS in terms of the Convention
Act, on behalf of the Tourism department, as the entity responsible for
the sustainable management and promotion of tourism.
10.13. On 09 May 2022, the South African Heritage Resources Agency
("SAHRA") and the MTPA entered into a Memorandum of Agreement
in terms of which the MTPA undertook the responsibility to take all
reasonable measures to; protect all parts of the Geosites from abuse
or disfigurement, damage, destruction, unauthorised removal,
unauthorised excavation, and to comply with any of the conditions of
title of the Site and the laws or regulations affecting owners or
occupiers of the land.
10.14. Subsequent to entering into the said Memorandum of Agreement, the
MTPA awarded a tender to the Second Respondent to "refurbish and
upgrade" the 13(thirteen) Geosites comprising the Barberton
Makhonjwa Geotrail, and thereafter formally appointed the Second
Respondent as the contractor for the said project, on 29 September
2023.
10.15. The Second Respondent commenced with construction activities at
two of the Geosites located on the properties, namely the Eureka View
Geosites, which is located on the property of the First and Third
Applicants, and Greenstone View Geosites, which is located on the
property of the Municipality, after its appointment, and later proceeded
7
to the White Tidal Sandstone, the Painted Quarry and the Makhonjwa
View Geosites, which belong to the First to Third Applicants.
10.16. Upon becoming aware of the construction activities taking place on
their properties without consent, the Applicants' representatives
approached the workers on site and inquired about their activities
there. Subsequent thereto, the Applicants' representatives had a
number of engagements with the MTPA that culminated in a meeting
with officials of the MTPA and its Chief Executive Officer ("CEO"), Mr
Vilakazi at the offices of the Second Applicant in Ngodwana, on 17
January 2024, at the instance of the Applicants' attorney of record, Mr
Richard Spoor of Richard Spoor Incorporated ('Mr Spoor'').
10.17. The matters discussed and agreed to at that meeting are recorded in
a letter that Mr Spoor sent to the CEO of the MTPA on 30 January
2024. It is recorded therein that the MTPA agreed to stay the proposed
Geotrail upgrade pending the outcome of a consultative process and
agreement with the landowners and Batobic, and ultimately the
consent of the larger WHS landowner group.
10.18. On 30 April 2024, the Applicants' attorney of record sent a Letter of
demand to the MTPA and the Second Respondent, after noticing that
the construction activities were still ongoing. He demanded the
Cessation of all construction activities on the Barberton Makhonjwa
Geotrail, following the failure to stop the construction activities as
agreed to at the meeting held on 17 January 2024.
8
10.19. Subsequent to the service of the aforementioned Letter of demand on
the First and Second Respondents, the Applicant lodged an urgent
application on or about 03 May 2024. It was however struck off the roll
with costs for lack of urgency by Acting Madam Justice Mazibuko on
14 May 2024. The Applicants' application for leave to appeal was also
dismissed with costs on 11 July 2024.
10.20. The matter was re-enrolled on the normal opposed roll which is before
this Court.
[11.] The Applicants delivered a further Supplementary affidavit on 04 October
2024, wherein further averments were made regarding the fire damage
caused by the Second Respondent to the Geosite belonging to the Second
Applicant, and included correspondence from Professor Cristoph Heubeck
("Prof Heubeck"), a geology Professor at the Friederick Schiller University in
Jena, Germany, sent to the Applicants and the First Respondent regarding the
nature of the damage caused and a report compiled by him. The MTPA
responded to the all allegations made in the said affidavit, in its Supplementary
Answering affidavit, delivered on 20 November 2024.
[12.) On 24 July 2024, African Heritage Resources Agency ("SAHRA"), wrote a
letter to the MTPA "Order for immediate cessation of all works or actions"
(Cessation Order"), in respect of works conducted on the Barberton
Makhonjwa Geotrail.
The Applicants' submissions
[13.] Counsel for the Applicants, Mr Sibanda contended that:
9
13.1. the First and Second Respondents' presence and construction
activities undertook on the 13 (thirteen) Geosites, nine of which are
situated on the Applicants' properties, is unlawful;
13.2. the Applicants and other landowners were not consulted in the design
and execution of the proposed upgrade and have not consented
thereto, or to the presence of the First and Second Respondents on
their properties;
13. 3. the Applicants have consented to grant members of the public access
to the Geosites for the purposes of tourism, education and
recreational purposes only;
13.4. the Second Respondent's construction activities on the First to Third
Applicants' properties, where it had established mobile offices,
damaged and defaced some of the Geosites, which conduct prompted
the Manager: Heritage Protection Unit of SAHRA, acting in terms of
the provisions of Sections 27 and 50(10) of the National Heritage
Resources Act, 25 of 1999 ("NHRA"), to issue Cessation Order on 24
July 2024, for the immediate cessation of all works or actions for the
"upgrade and refurbishment of the Barberton Makhonjwa Geotraif',
with immediate effect.
13.5. the First and Second Respondents' construction activities entail the
destruction of the First to Third Applicants' properties, namely the
existing built concrete aprons, paved parking areas, brick and stone
walls, concrete tables and benches, and concrete plinths for signage,
10
which are attached to the soil and are of a permanent nature.
Furthermore, the deliberate destruction of their properties without their
consent constitutes malicious damage to property and trespassing.
13.6. Sappi's commercial forestry operations are at a particular risk of veld
and forest fires, and at a time, the Lowveld Escarpment Fire Protection
Association ("LEFPA") had issued a burning prohibition in terms of
Section 10(1) of the National Veld and Forest Fire Act, 101 of 1998;
13. 7. Sappi officials laid a criminal complaint at the Barberton Police Station
against the Second Respondent, for causing veld fires;
13.8. there is no provision in the NHRA that authorises the First and Second
Respondents to go onto the property of the Applicants for the purpose
of carrying out construction activities, save with the consent of the
property owners concerned;
13.9. there is no provision in the Convention Act, nor in the declaration of
the BMM as a WHS, nor in the assignment of the Management
Authority by the MEC to the MTPA, that authorises the MTPA and the
Second Respondent to go onto the Applicants' properties for the
purpose of carrying out construction activities there, save with the
consent of the relevant property owner.
13.10. that while the P77-1 is a provincial road that traverses the Applicants'
properties, the land falling within the road reserve has not been
expropriated by the State, and remains the property of the landowner
concerned; and that any construction related activities not related to
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the use of the land within the road reserve require the consent of both
the land owner and the relevant road authority, being the MEC for
Public Works, Roads and Transport, which was never obtained;
13.11. that the First and Second Respondents acted unlawfully in that in
terms of the provisions of Section 13( 1) of the Mpumalanga Roads
Act, 1 of 2008, the First and Second Respondents are not permitted
to erect, lay, establish or alter any structure or permit the erection,
laying, establishment or alteration of any structure:
a) on, over or below the surface of a provincial road so as to
encroach on a provincial road; or
b) in a building restriction area within 20 metres of the boundary of
a main road or district road.
13.12. That the First and Second Respondents added unlawfully in that they
did not have the consent of the landowners to carry out the
construction activities on the land within the P77-1 road reserve, or
permission of the MEC to do so.
[14.] Mr Sibanda further contended that the Applicants have satisfied the
requirements for the granting of a final interdict, and referred the Court to the
case of Setlogelo v Setlogelo1, where the requirements for an interdict are set
out. In addition, he sought a punitive costs order of attorney and client based
on the conduct of the MTPA and the Second Respondents.
1 Setlogelo v Setlogelo 1914 AD 221 at 227.
12
The First Respondent's submissions
[15.] Counsel for the MTPA, Mr Seape, raised two preliminary issues, firstly with
regard to the Applicants' filing of more than three sets of affidavits, and
secondly on the mootness of the application.
[16.] He contended that:
16.1. the Applicants' Further Supplementary affidavits should be
disregarded as no leave was sought prior to filing additional affidavits
after the Replying affidavit was filed, before the urgent application was
heard;
16.2. in support of this contention, he referred this Court to the case of Hano
Trading CC v JR 209 Investments (Pty) Ltd and Another2, where the
Court stated that in motion proceedings, only three sets of affidavits
have to be filed.
16.3. he further contended that even if the contents of the Supplementary
affidavits were to be considered, the allegations pertaining to Sappi,
the Second Applicant herein, are an "irrelevant atmospheric matter''
which has no bearing on the issues before Court. Furthermore, he
contended that the correspondence relied on, which was exchanged
between Prof Heubeck and the Applicants, and copied to the MTPA,
the subject of which was "Destruction of protected WHS Geosite
Outcrop", and his report amount to hearsay evidence, which is
inadmissible in the absence of his Confirmatory affidavit.
? Hano Trading CC v JR 209 Investments (Pty) Ltd and Another 2013 (l) SA 156
13
16.4. he contended that the contents of the "Further Supplementary"
affidavits filed on 07 and 08 May 2024, should be disregarded.
[17 .] On the preliminary point of mootness, he argued that the issues are moot on
the basis of the Cessation Order issued by SAHRA to the MTPA on 24 July
2024, which is referred to in the Applicants' Supplementary affidavit delivered
on 04 October 2024. This letter unequivocally stated that the First Respondent
required an application to be made to SAHRA in terms of the provisions of
Section 27(18) of the NHRA, prior to commencement of any activities, and that
no such application was made by the MTPA, nor was a permit granted to do
so.
[18.] On this ground, it was contended, the interdictory relief sought was moot.
[19.] I deem it appropriate to address this submission later in this judgment, as the
issue of mootness is in my view, interrelated with the requirements for the final
interdict, which is the main subject matter of these proceedings.
[20.] On the final interdict sought by the Applicants, Counsel for the MTPA
contended that:
20.1. the Applicants' ownership of nine of the thirteen Geosites is in dispute,
as no Court has made a finding that they acquired the said Geosites
by accession. As such, they did not establish a clear right;
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20.2. on the injury committed or reasonable apprehension that it may be
committed, it was contended that the Applicants failed to establish that
the project will cause harm if the final interdict sought is not granted;
20.3. regarding the requirement of the absence of an alternative remedy,
Mr Seape contended that the Applicants failed to satisfy this
requirement as they can sue for damages for loss suffered as a result
of the proposed upgrade and construction activities; and
20.4. on the above-stated submissions, the Applicants failed to satisfy the
requirements for the final interdict to be granted, and the application
should therefore be dismissed with costs, to be awarded on an
attorney and client scale.
The Issues
[21.] This Court is required to determine whether:
21.1. the Applicants' "Further Supplementary" affidavits, should be upheld,
as the leave of the Court was not sought by the Applicants;
21.2. the relief sought is moot; and
21.3. on the case pleaded by the Applicants and the MTPA in the affidavits
before Court, the Applicants have satisfied the requirements for the
final interdict to be granted.
15
[22.) For a better understanding of the issues herein, it is necessary at the outset,
to outline the provisions of the relevant applicable legislation, which I shall deal
with hereunder.
Legislative Framework
TheNHRA
[23.] In terms of Section 11 of this Act, SAHRA was established as the national
body to co-ordinate and promote the management of heritage resources at
the national level, as contemplated in Section 13 of the Act. It is a statutory
requirement to obtain a permit for various activities related to heritage
resources, including alteration to structures, excavations and the removal of
objects.
[24.] The NHRA provides for monitoring and enforcement mechanisms to ensure
compliance with its provisions. The following provisions are relevant for the
determination of the issues herein:
24.1. Section 27(18) of the NHRA provides:
"No person may destroy, damage, deface, excavate, alter, remove
from its original position, subdivide or change the planning status of
any heritage sites without a permit issued by the heritage resources
authority responsible for the protection of such site".
24.2. Section 27 (21) also provides:
16
27(21)
TheMTPAAct The responsible heritage resources authority may, QX
agreement with the owner of a heritage site-
a) conserve or improve any heritage site;
b) construct fences, walls or gates around or on a
heritage site;
c) acquire or construct and maintain an access road to
a heritage site over any land, and construct upon such
land, fences, walls or gates; or
d) erect signs on or near a site". (emphasis added).
(25.) The MTPA was established in terms of Section 2 of the Act. Section 3 of the
Act stipulates that the statutory object of the MTPA is to provide for the
sustainable management and promotion of tourism and nature conservation
within the Mpumalanga province, and to ensure the sustainable utilisation of
natural resources.
Mpumalanga Roads Act
[26.) Section 13(1) of the Mpumalanga Road Act prohibits the carrying out of any
construction or related work on the road, without prior permission of the MEC
for Public Works, Roads and Transport. The P77-1 is a provincial road as
contemplated in Section 1 of the Act.
17
Evaluation and the Law
[27.] I shall firstly deal with the status of the "Further Supplementary" affidavits filed
by the Applicants, and thereafter the issue of mootness and lastly consider the
legal requirements for the granting of a final interdict.
[28.] In addressing the contention regarding the admissibility of 2(two) "Further
Supplementary" affidavits filed by the Applicants in the Urgent application, it is
important to state that the Applicants and the MTPA filed additional affidavits
pursuant to the management order and directive of this Court dated 06 August
2024. This brought the number of affidavits filed by the Applicants to 6(six)
and those of the MTPA to 2(two) sets,
[29.] The filing of further affidavits in application proceedings was addressed in the
Hano judgment supra, to which Counsel for MTPA referred, where the Court
held that:
"Rule 6(5)(e) establishes clearly that the filing of further affidavits is only
permitted with the indulgence of the Court. A Court, as arbiter, has the sole
discretion whether to allow the affidavits or not. A Court will only exercise its
discretion in this regard where there is good reason for doing so3"
[30.] It is important to state that the Court in the Hano judgment focused on the
prejudice that the filing of further affidavits had on an opponent who had to
meet a case based on the contents of such additional affidavits, without
dealing with them. I am of the view that this matter is distinguishable from the
Hano judgment in that:
3 At paragraph 11
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30.1. the litigation history in this matter commenced on 03 May 2024, when
the urgent application, which was struck off the roll on 14 May 2024,
was launched;
30.2. the first and second Supplementary affidavits were filed on 07 and 08
May 2024 respectively. The MTPA filed its Notice of intention to
oppose on 06 May 2024 and its Answering affidavit on 13 May 2024;
30.3. the deponent to the Answering affidavit of the MTPA was therefore
able to respond to the Founding affidavit and the first and second
Supplementary affidavits. The deponent did not serve a Rule 30A
notice of non-compliance with the Rules of this Court, on the
Applicants, nor make an application to Court in that regard, which, in
any event, had to be preceded by such notice. In taking the matter
further, I point out that the prejudice referred to in the Hano judgment
was absent in this instance, as the MTPA was able to respond to all
the allegations prior to the hearing of the application.
30.4. In my view, the principle enunciated in the case of PFE International
Inc (BVI) and Others v Industrial Development Corporation of South
Africa Ltd, 4 finds application in this case, as the Court held as follows:
"Since the rules are made for courts to facilitate the adjudication of
cases, the superior courts enjoy the power to regulate their processes,
taking into account the interests of justice. It is this power that makes
every superior court the master of its own process. It enables a
4 PFE International Inc (BVI) and Others v Industrial Development Corporation of South Africa Ltd 2013 ( 1) SA
I (CC)
19
superior court to lay down a process to be followed in particular cases,
even if that process deviates from what its rules prescribe. Consistent
with that power, this court may, in the interests of justice depart from
its own rules".
[31.] In light of the PFE case supra, I find that there is no merit in the contention
that the further Supplementary affidavits should be disregarded as the
allegations therein were properly responded to.
[32.] I find that it is therefore in the interests of justice that I deviate from Rule 6(5)(e)
and consider all the affidavits filed of record, in the absence of any prejudice.
(33.] I now turn to deal with the law applicable to the granting of a final interdict, that
is whether the Applicants have satisfied the requirements for the granting of
the final interdict sought.
The Requirements for a final interdict
[34.] The law in regard to the grant of a final interdict is settled. An Applicant for
such an interdict must show:
34.1. a clear right;
34.2. an injury actually committed or reasonably apprehended; and
34.3. the absence of an alternative remedy or similar protection by any other
ordinary remedy.
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Clear right
[35.] I need to point out that to determine whether an Applicant has a clear right is
a matter of substantive law, and whether that right is clear, is a matter of
evidence. In order to establish a clear right, the Applicants have to prove, on
a balance of probabilities, facts which in terms of substantive law establish the
right relied on5. Absent a clear right, the application for a final interdict should
fail.
[36.] It is not in dispute that the Applicants herein are the registered owners of
protection which 9(nine) of the 13(thirteen) Geosites are located and that the
provisions of Sections 27(18), 27(21) of the NHRA quoted at paragraph 23
above, are applicable to the Applicants' case.
An iniurv committed or reasonably apprehended
[37.] It is trite that where a wrongful act giving rise to the injury has already occurred,
it must be of a continuing nature, or there must be a reasonable apprehension
that it will be repeated. In the case of NCSPCA v OpenshawlS, the SCA
reiterated that an interdict is not a remedy for a past invasion of rights but is
concerned with present or future infringements.
[38.] The Applicants have, in their affidavits set out the extent of the damage
already caused by the Second Respondent's removal of paving and concrete
tables along the Geotrail.
5 LAWSA Vol II, 2nd Ed ot it 397
6 NCSPCA v Openshaw 2008 (5) SA 339 (SCA) at para [20]
21
[39.] However, the deponent to the Supplementary Answering affidavit of the MTPA
has admitted that the construction activities which led to this application,
stopped after SAHRA issued the above-mentioned Cessation Order to the
MTPA on 24 July 2024. According to SAHRA, the Cessation Order shall be
valid until such time that the MTPA complies with the statutory requirements
referred to in paragraph 10 of the Order which states as follows:
"10. This Order shall be valid until such time as you have complied with
the following requirements:
10.1 All documents relating to any EA application in terms of
NEMA, if conducted, must be submitted to SAHRA;
10.2 An investigation by a geologist and palaeontologist pertaining
to any heritage resources that may have been damaged by
the upgrade and refurbishment, inclusive of a site visit, must
be submitted to SAHRA for review and further action;
10.3 Appropriate permit applications must be made for all works on
all protected sites;
10.4 No further development may occur without comment from
SAHRA in this regard".
[40.] The Cessation Order is no doubt congruent with what is stated in the letter
sent to the MTPA by the Applicants' attorney of record, Mr Spoor, dated 30
January 2024, which reiterated the agreement reached by the Applicants'
representatives and the CEO and officials of the MTPA, at a meeting they
22
attended at the Second Applicant's offices in Ngodwana on 17 January 2024.
Of particular importance is paragraph 2 and 2.4 thereof, which states:
"2 The matters arising from that meeting, which Batobic and the Geotrail
landowners have requested us to emphasize are the following:
2.1
2.2
2.3
2.4 The MTPA has agreed to stay the proposed Geotrail upgrade,
pending the outcome of a consultative process and agreement
with both the Geotrail landowners and Batobic and ultimately the
consent of the larger WHS landowner group".
[41.] The Letter of demand from the Applicants' attorney, Mr Spoor, dated 30 April
2024, further indicates that the construction activities could only be carried out
once the MTPA had complied with, or satisfied certain conditions. Paragraph
11.5 of the letter states:
"The MTPA and Siphelele General Trading furnish a written undertaking that
they will not carry out any further construction activities on any Geosites of the
Barberton Makhonjwa Geotrail, without the express written approval of the
landowners (including the Mbombela Local Municipality) and the MEG for
Mpumalanga Department: Public Works, Roads and Transporf'.
23
(42.] On the correct interpretation of the excerpts from the two letters above, it is
indicative that the relief sought by the Applicants is of an interim nature cannot
be a final interdict.
The absence of an alternative remedy
(43.] In this instance, a Court may not grant an interdict in circumstances where
there is an alternative remedy available to an Applicant, and which may
safeguard the right sought to be protected.
[44.] I need to be emphatic that the purpose of an interdict is to put an end to
conduct in breach of the Applicants' rights. In the case of Hotz and Others v
University of Cape Town 7, the SCA held, in relation to the lack of an alternative
remedy requisite, that the existence of another remedy will only preclude the
grant of an interdict where the proposed alternative will afford the injured party
a remedy that gives it similar protection to an interdict against the injury that is
occurring or is apprehended.
[45.] The case of Food and Allied Workers' Union v Scandia Delicatessen CC8 is
also authority for the view that criminal prosecution may also be a suitable
alternative remedy in appropriate cases. The SCA, per Farlam JA held that:
" ... it can be accepted that in certain cases, a criminal prosecution may well
be an adequate remedy such as to disentitle a person to whom such remedy
is available, from obtaining an interdicf'9.
7 Hotz and Others v University of Cape Town 2017 (2) SA 485 (SCA) at para (36]
8 Food and Allied Workers' Union v Scandia Delicatessen CC [200 l] 3 SA 613 (SCA)
9 At para (35]
24
The undisputed facts
[46.) In order to establish each of the three requisite elements, it is appropriate to
have regard to those facts pleaded by the Applicants, which are admitted by
the MTPA or are not disputed. In this instance, the MTPA does not dispute
that:
46.1. the First to Third Applicants are the registered owners of 9(nine) of
the 13(thirteen) properties over which the Geosites are located;
46.2. The P77-1 road reserve that traverses the thirteen Geosites, has not
been expropriated;
46.3. The Second Respondent established construction sites on the First to
Third Applicants' properties along the Barberton Makhonjwa Geotrail,
and was engaged in construction activities thereon from October
2023;
46.4. The First to Third Applicants did not consent to the presence of the
MTPA and the Second Respondent on their properties;
46.5. That fire damage was caused to the property of the Second Applicant
by the Second Respondent's employees;
46.6. SAHRA and the MTPA entered into a Memorandum of Agreement on
09 May 2022; and
46.7. SAHRA issued a Cessation Order to the MTPA on 24 July 2024 due
to the latter's failure to comply with statutory requirements set out in
the NAHRA, and in the Memorandum of Agreement.
25
[47.] This Court is bound by the starre decisis principle and the rule enunciated in
the case of Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd1°, which
was stated as follows:
"Where, in proceedings on notice of motion, disputes of fact have arisen on
the affidavits, a final order, whether it be an interdict or some other form of
relief, may be granted if those facts averred in the Applicant's affidavits, which
have been admitted by the Respondent, together with the facts alleged by the
Respondent, justify the order'.
[48.] It bears mentioning that I have not considered the averments made by the
deponent to the Founding and Supplementary affidavits regarding the
correspondence sent by Prof Heubeck to the MTPA and the Applicants on 15
July 2024, nor considered the report compiled by him in respect of the
activities that were taking place on the 13(thirteen) Geosites, which he
allegedly presented at a meeting convened by SAHRA at the Second
Applicant's property in Ngodwana, as no Confirmatory affidavit from him was
filed. In my view Mr Seape, Counsel for the MTPA, correctly contended that
the said correspondence and report amount to hearsay evidence, which is
inadmissible.
Findings
[49.] Having considered legal authorities referred to above and the totality of the
evidence pleaded in the affidavits, I now turn to consider whether the
10 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634 1-635 D
26
Applicants have satisfied all three requirements for the final interdict to be
granted.
[50.] Regarding the first requirement of the existence of a clear right I find that:
50.1. there is no merit in the submission of Counsel for the MTPA, that the
First to Third Applicants' ownership over the said properties is in
dispute as no Court has ever made a finding that they acquired the
Geosites by accession. The fact of the matter is that the provisions of
Section 27(21) require the MTPA to engage with the relevant
landowners prior to commencement of any construction activities on
Geosites located on their properties;
50.2. the MTPA, as the managing authority, acted contrary to the provisions
of the NHRA and the law, which prompted SAHRA to issue the
Cessation Order to the MTPA on 24 July 2024;
[51.] On this basis the contention that the Applicants have no clear right has no
merit and should fail.
[52.] Consequently, I find that the Applicants have satisfied the requirement of the
existence of a clear right.
[53.] Regarding the second requirement of an injury committed or reasonably
apprehended, I find that the Applicants have succeeded in establishing that
actual damage was caused to their properties from October 2023, as a result
of which their representatives had several engagements with the CEO and
officials of the MTPA in an endeavour to resolve their concerns. This
culminated with the issue of the Cessation Order.
27
[54.] Regarding the third requisite element of the absence of an alternative remedy,
I am of the opinion that this has been negated by the Cessation Order, and
the fact that there is a remedy that the Applicants may explore through the
criminal justice system referred to in the Food and Allied Workers' Union case
supra. This is also confirmed by the fact that the Second Applicant laid a
criminal charge after the Second Respondent's employees caused fire to its
property.
[55.] On the issue of mootness, I am persuaded by the submission of Counsel for
the MTPA, Mr Seape, who contended that the matter has become moot. He
correctly referred this Court to the Constitutional Court judgment in the case
of National Coalition for Gay and Lesbian Equality and Others v Minister of
Home Affairs and Others11, where the principle of mootness was adequately
dealt with.
[56.] In another fairly recent judgment in the case of Minister of Tourism v Afriforum
NPC12 the Constitutional Court stated the following:
"A case is moot when there is no longer a live dispute or controversy
between the parties which would be practically affected in one way or
another by a Court's decision, or which would be resolved by a Court's
decision. A case is a/so moot when a Court's decision would be of
academic interest only''13.
11 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2)
SA I (CC) at para [21]
12 Minister of Tourism v Afriforum NPC [2023] ZACC 7 (CC) at para 23
13 Vide: Solidariteit Helpende Hand NPC and Others v Minister of Cooperative Governance and Traditional
Affairs [2023) ZA SCA 35 (31 March 2023]
28
[57.) I am satisfied that there was no factual or legal basis to proceed with the
application after 24 July 2024, when SAHRA echoed what Mr Spoor had
stated in the letter dated 30 January and the Letter of demand dated 30 April
2024, that the Applicants required a consultative process to take place prior
to any works being commenced along the Barberton Makhonjwa Geotrail.
[58.) There is therefore no doubt that the adjudication of this application is nothing
but an academic exercise.
[59.) Consequently, I find that even if I were to find that the application is not moot,
the Applicants failed to satisfy the third requirement stipulated in the Setlogelo
and Hotz judgments referred to supra.
Costs
[60.) Counsel for the Applicants contended that the costs of the application should
be awarded on an Attorney and client scale, as the MTPA had breached clear
undertakings made at a meeting held by the parties on 17 January 2024 and
that the damage caused by the Second Respondent's activities was at the
instance of the MTPA.
[61.] On the contrary, Counsel for the MTPA contended that the costs should be
awarded against the Applicants on an Attorney and client scale, firstly as there
was no merit in the application, and secondly due to their persistence in
continuing with the application for the final interdict even after SAHRA had
ordered the MTPA to cease with all the works and activities, which order was
complied with.
29
[62.) It is trite law that the basic rule is that the making of a costs order remains in
the discretion of the Court, which must be exercised judicially. The general
rule is however that the successful party is normally entitled to an award of
costs in its favour14.
[63.) The locus classicus case on the award of costs on an Attorney and client scale
is Ne/ v Waterberg Landbouwers Ko-operatieve Vereeniging 1946 (AD) 59615.
There Tindall JA in a unanimous judgment stated that:
" by reason of special considerations arising either from the
circumstances which give rise to the action or from the conduct of the
losing party, the court in a particular case may consider it just, by means
of such an order, to ensure more effectually than it can do by means of
a judgment for party and party costs, that a successful party will not be
out of pocket in respect of the expense caused by the litigation."16
[64.) In the case of Biowatch Trust v Registrar, Genetic Resources17, the
Constitutional Court held that:
"In litigation between the governmental and a private party seeking to assert
a constitutional right, Affordable Medicines established the principle that
ordinarily, if the government loses, it should pay the costs of the other side,
and if the government wins, each party should bear its own costs"18.
14 Cilliers: The Law of Costs, Lexis Nexus at para 203
IS Interpreted in Mudzima v Chinhoyi Municipality 1986 (3) SA 140 (ZH) at 143 D -I, 144
16 At 607
17 Biowatch Trust v Registrar, Genetic Resources 2009 (6) SA 232 (CC) at para [22]
18 Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) at para [ 139]
30
[65.] Section 34 of the Constitution of South Africa, 1996 guarantees everyone the
right of access to Courts and justice. The application does not involve a
constitutional challenge but focuses on the state's statutory obligations as set
out in the provisions of NHRA referred to above, and the failure to do so.
[66.] The Applicants did not withdraw the application despite the fact that the
Cessation Order of SAHRA effectively halted all the activities that gave rise to
this application.
[67.] On the contrary, the MTPA acted in total disregard of the peremptory
provisions of the NHRA and commenced with construction activities on
13(thirteen) Geosites on the Barberton Makhonjwa Geotrail, 9(nine) of which
are located on the First to Third Applicants' properties. This was contrary to
the contents of the Memorandum of Agreement concluded by the SAHRA and
the MTPA, on 14 May 2022, wherein the obligations of the MTPA, and the
peremptory statutory requirements were dealt with.
[68.] Furthermore, the MTPA does not deny that the Applicants took steps to
address the non-compliance with the statutory obligations of the MTPA, by
approaching the Second Respondent immediately upon becoming aware of
the construction activities on their properties, and engagements between the
Applicants and the MTPA took place prior to commencement of litigation.
[69.] In the circumstances, I cannot be oblivious of the fact that although the
Applicants failed to withdraw the application for a final interdict after 24 July
2024, it is the MTPA that triggered the litigation by acting contrary to the
applicable legislative provisions, and the above-mentioned Memorandum of
Agreement.
31
[70.] Having regard to the litigation history of this matter, and events that took place
prior to commencement thereof, I find that the principle enunciated by the
Constitutional Court in the Affordable Medicines and Biowatch cases supra, is
applicable in this case.
[71.] I am therefore of the view that there is no justification to impose a costs order
on the Applicants on the basis that the application against the MTPA which is
a government Respondent, is not successful.
ORDER
[72.] In the result, I make the following Order:
72.1. The application for the final interdict is dismissed.
72.2. There is no order as to costs.
Date heard
32 HO-MOLOISANE
THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
06 March 2025

Judgment electronically delivered
by circulation to all parties
Appearances
Counsel for the Applicants
Instructed by
Counsel for the First Respondent
Instructed by
33 26 June 2025
Adv M. Sibanda
Richard Spoor Incorporated
White River
C/O Christo Smith lnc, Attorneys
Mbombela
Email: Richard@rsinc.co.za
Yolanda@csprok.co.za
Adv M Seape
Adv C. Jones
Adams & Adams Attorneys
Lynwood Manor
Pretoria
C/O Du Tait Smuts &
Partners Attorneys
Nelspruit
Email:
Thando.Manentsa@adams.africa
mqebhard@dtsmp.co.za