SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NUMBER: 9338/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 4 September 2025
SIGNATURE:
In the matter between:
MASHEBANE DANIEL MALESA N.O. 1ST APPLICANT
JOSEPH KAMELA MODIBA N.O. 2ND APPLICANT
MOTHOKO TERRENCE MOSIBIHLA N.O. 3RD APPLICANT
THETELE JOSEPH MALATJI N.O. 4TH APPLICANT
MANKUROANE SAMUEL MODIBA N.O. 5TH APPLICANT
MOTLATSO IVY MAGOELE N.O. 6TH APPLICANT
MAATISHI SIMON MAKGOBA N.O. 7TH APPLICANT
MOGOWE WINDSOR MADIA N.O. 8TH APPLICANT
MOKGADI ONICA MAKGOBOLA N.O. 9TH APPLICANT
MMAMOKGOTLA MONICA MATLEBJANE N.O. 10TH APPLICANT
REFILWE IRENE LETSOALO N.O. 11TH APPLICANT
MOTLOKWA SUZAN MOJAPELO N.O. 12TH APPLICANT
MATOME DAVID MODIBA N.O. 13TH APPLICANT
MOHALE ELIAS NYAKALA N.O. 14TH APPLICANT
MATLOU JACQUELINE MAKGOBA N.O. 15TH APPLICANT
(In their capacities as duly authorised Trustees of
the MAMPHOKU MAKGOBA COMMUNITY TRUST)
MAKGOBA ASSET MANAGEMENT COMPANY 16TH APPLICANT
(PTY) LTD
-and-
MOKOPA GARIBALD MAKGOBA 1ST RESPONDENT
MOSHIBUDI MAKGOBA 2ND RESPONDENT
ALBERT JILENI 3RD RESPONDENT
MAGALANE MAKGOBA 4TH RESPONDENT
MALESELA MAKGOBA 5TH RESPONDENT
MAKGOKA MAKGOBA 6TH RESPONDENT
PHILIP MAKGOBA 7TH RESPONDENT
WILLIAM MATHABATHA 8TH RESPONDENT
SEGODI MALAHLELA 9TH RESPONDENT
MASILU MADIA 10TH RESPONDENT
Delivered : 4 September 2025
This judgment was handed down electronically by circulation to
the parties’ legal representatives by e -mail. The date and time
for hand down of the judgment is deemed to be 4 September
2025 at 10:00 am.
Date heard : 28 May 2025
Coram : Bresler AJ
JUDGMENT
BRESLER AJ:
Introduction:
[1] The Applicants apply for an order that the Respondents be found in contempt
of the order granted by the Honourable Tshidada J on the 11 th of May 2024 and
under case number 4697/2024. The Applicants also pray for a suspende d sentence
of 18 months.
[2] The matter was previously enrolled on 17 September 2024 on the urgent roll.
It was however struck from the roll by the Honourable Madam Justice Naude -
Odendaal due to lack of urgency.
[3] The Respondents oppose the applicatio n for contempt inter alia on the basis
that the application is premature, that there was no proper service of the order and
that there was no breach of the said order. The grounds of opposition, insofar as
they may be relevant to the determination of the m atter, shall be addressed ad
seriatim herein under.
Issues that require determination:
[4] This Court is called upon to determine if the Respondents should be found to
be in contempt of the order. If so, the appropriate sanction must be determined
accordingly.
Factual Synopsis:
[5] The Mamphoko Makgoba Community Trust (hereinafter referred to as ‘MMCT’)
is the registered owner of several immovable properties within the Limpopo Province.
These properties are, in return, leased to the Makgoba Asset Management Company
(Pty) Ltd (the 16th Respondent).
[6] Over the course of time, the properties of the MMC T have formed the subject
of unlawful conduct by a certain Frans Kubjana (hereinafter ‘Kubjana’) and his
cohorts. This conduct was met with various forms of legal action. More recently,
Kubjana has also solicited the involvement of the Makgoba Traditional Authority, its
Senior Traditional Leader and his daughter (the First and Second Respondents).
[7] Several incidents transpired during the period 16 April 2024 to 11 May 2024
resulting in an order being granted in favour of the Applicants by the Honourable
Tshidada J on the 11th of May 2024 inter alia in the following terms:
‘2. An interim order is granted pending the finalization of the application in
terms whereof the first to fourteenth Respondents are interdicted and
restrained from further arranging, convening, facilitating, hosting or attending
any meeting at the REMAINING EXTENT OF THE FARM MIDDELKOP 552
LT, LIMPOPO at any time on Sunday, 12 May 2024, or from instructing or
permitting any person to do so on their behalf.
3. An interim order is granted pending the finalization of this application in
terms whereof the first to fourteenth Respondents are interdicted and ordered
to:
3.1 Not enter or access onto the following farms (all located in the Limpopo
Province)
3.1.1 FARM GRENSHOEK 544 LT, LIMP OPO held under deed of transfer
T[…];
3.1.2 PORTION 1 OF THE FARM ROOIKOPJES 545 LT, LIMPOPO held
under deed of transfer T[…];
3.1.3 REMAINING EXTENT OF THE FARM MIDDELKOP 552 LT,
LIMPOPO held under deed of transfer T […] (save for th e area on which the
residences of the First to Eleventh Respondents are located)
3.1.4 ANY OTHER PROPERTY under the control and management of the
Applicants or to be placed under the control and management of the
Applicants;
(the properties referred to above are jointly referred to as “the Properties”)
3.2 not the arrange, convene, facilitate, host or attend any meeting at the
Properties without the previously obtained written consent of the Applicants.
…
6. The orders set out in paragraphs 2 to 5 supra shall have immediate
operation and effect pending the finalization of the application.’
[8] The order was duly brought to the attention of the Respondents.
Notwithstanding knowledge of the existence of the said order, the Ma kgoba
Traditional Authority held a meeting on Sunday, 12 May 2024, at Middelkop and the
First Respondent acted as chairperson of the meeting.
[9] Hereafter several incidents followed where the Respondents, either
individually or in groups, contravened the said order primarily on the basis that they
are entitled to do so by virtue of being representatives of the Makgoba Traditional
Authority.
Legal Framework:
[10] In Fakie NO v CCII Systems (Pty) Ltd1 Cameron JA stated:
‘It is a crime unlawfully and inte ntionally to disobey a Court order. This type of
contempt of Court is part of a broader offence, which can take many forms,
but the essence of which lies in violating the dignity, repute or authority of the
Court. The offence had, in general terms, receive d a constitutional 'stamp of
approval', since the rule of law — a founding value of the Constitution —
'requires that the dignity and authority of the Courts, as well as their capacity
to carry out their functions, should always be maintained.'
[11] It is trite law that an Applicant for committal must show2 –:
11.1 The existence of the court order;
11.2 The Respondent has knowledge of the order; and
11.3 The Respondent either disobeyed the order or neglected to comply
with it.
[12] If an applicant in contempt of court proceedings has proved that the
respondent has disobeyed the order of court, then both wilfulness and mala fides will
be inferred.3 The onus is on the Respondent to rebut the inference of mala fides and
wilfulness on a balance of probabilities.
[13] The Respondents submitted that the application is premature as merely an
interim order was granted. This order has not been confirmed to date hereof. This
1 2006 4 SA 326 (SCA)
2 Facie NO v CCII Systems supra
3 See Haddow v Haddow 1974 (2) SA 181 (R)
Court does not agree. As correctly stated by the Applicants: the order stands, has
not been set aside and is valid and binding. Even if the order might be of an interim
nature, the purpose of the order would be defied if the Respondents are entitled to
breach the order pending finalization of the application.
[14] Likewise, the Court also does not agree that the statements made by the
witnesses are improperly before court. The Respondents were able to rebut these
alleged statements yet elected to merely attack them on technical grounds.
[15] As to the service of the order, this Court is of the view that the purpose of
service is to bring the order to the attention of the contemnor as per the judgment of
the Constitutional Court in the matter of Pheko v Ekhurhuleni Metropolitan
Municipality4. The facts show that the Respondents were, at all material times,
aware of the said order. It is also clear that it is not knowledge of the order that is in
dispute, but rather the way it was brought to the Respondents’ knowledge.
[16] It must also be considered that the main application is opposed and any
objection as to the service of the interim order, is therefore largely moot.
[17] As to the current proceedings being discriminatory (insofar as all the
Respondents cited in the main proceedings are not before court in the current
proceedings) it is this Court’s view that a person cannot be held in contempt if that
person did not violate the order. The Applicants explicitly state that the Respondents
in the current proceedings are in breach of the said order. There is no need to join
the remaining respondents in the main case as their rights will not be infringed with
the granting of relief in these proceedings.
[18] The Respondents also raise the issue of a n alleged factual dispute. In this
Court’s view, the crux of the dispute raised by the Respondents turns on
technicalities such as the application being premature or improper service, whilst
technicalities such as the application being premature or improper service, whilst
they are aware of the proceedings. This does not constitute bona fide factual
disputes that will result in the refusal of the application. As such, this Court is
4 2015 JDR 0841 (CC)
satisfied that the alleged disputes raised do not bar the Court from hearing the
matter on application.
[19] As to the requirements for succeeding with a contempt application of this
nature, this Court is accordingly satisfied that it has been shown that the
Respondents are aware of the order and that they are in breach thereof. Wilfulness
is assumed and the Respondents were required to r ebut this assumption. They have
failed to do so and elected to raise unsubstantiated technical objections to the merits.
[20] The Constitutional court in Matjhabeng Municipality v Eskom 5 clarified the
position pertaining to the standard of proof as follows:
‘The standard of proof must be applied in accordance with the consequences
of the remedies sought. If the relief applied for is a declaratory order,
mandamus, structural interdict or similar civil remedy where the contemnor’s
right to freedom and security is not deprived, then the civil standard of proof –
on a balance of probabilities – applies. Where the civil contempt remedies of
committal to prison or the imposition of a fine are sought, which impact on the
contemnor’s freedom and security of person , then the criminal standard –
beyond reasonable doubt – applies.’
[21] The Court consequently finds beyond reasonable doubt that the Respondents
are in contempt of the order granted by the Honourable Tshidada J on the 11 th of
May 2024.
[22] As to the appropriate sanc tion to be imposed in this matter, this Court is
mindful of the fact that, in certain circumstances direct imprisonment is not the
appropriate remedy. Especially in an instance where the order, forming the subject of
the contempt, is still subject to confirmation on its return date in due course.
5 2018 (1) SA 1 (CC)
[23] Under the circumstances, an order aligning in principle with the concept order
proposed by the Applicants’ counsel will serve the dual purpose as deterrent and
vindication of the Court’s authority.
Costs:
[24] There is no reason why the costs of the proceedings should not follow the
outcome. Having regard to the inter alia conduct of the Respondents in deliberately
defying a Court order, the complexity of the matter and the importance thereof to the
parties, costs to counsel on Scale C is warranted.
Order:
[25] In the result the following order is made:
25.1 The Respondents are declared to be in contempt of the court
order granted by the Honourable Tshidada J on 11 May 2024 and
under case number 4697/2024;
25.2 The Respondents are committed to direct imprisonment for a
period of 18 (eighteen) months for such contempt, wholly
suspended pending the outcome of the main application under
case number: 4697/2024, on condition that the Respondents do
not breac h the aforesaid court order during the period of
suspension;
25.3 The Respondents are ordered to pay the costs of this application,
jointly and severally, the one paying the other to be absolved,
including costs to counsel on Scale C.
M BRESLER AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
FOR THE APPLICANTS : Adv. R Grundlingh
INSTRUCTED BY : Joubert & May Attorneys
Tzaneen
johan@joubertmay.co.za
randy@randymakgobainc.co.za
FOR THE RESPONDENTS: Prof./Adv. JLH Letsoalo
INSTRUCTED BY : JK Depanyekga Attorneys
Polokwane
khullydeps@gmail.com