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IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
APPEAL CASE NO: HCA03/2025
In the matter between:
MOREWANE ANTOUN PHOKANE APPELLANT
AND
JIM MASHABELA 1ST RESPONDENT
LIPSON MASHABELA 2ND RESPONDENT
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
_____________________ _________________
SIGNATURE DATE 02/02/2026
DATE………… SIGNATURE:……
ROKA MASHISHI TRADITIONAL COUNCIL 3RD RESPONDENT
KGOSHI M.S. MASHISHI 4TH RESPONDENT
Delivered : 02 FEBRUARY 2026
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 02 February 2026 at 14:00 am.
Date heard : 07 NOVEMBER 2025
Coram : Ngobeni J et Pillay AJ
JUDGMENT
NGOBENI J
[1] This is an appeal agai nst the decision that was granted by Magistrate B.U.
Mogashoa, sitting in the Magistrates’ Court for the district of Tubatse,
held at Praktiseer (court a quo) on 25 September 2024. There are four
grounds of appeal raised by the appellant, and for the case to be well
understood I will restate them although not verbatim. The grounds are as
follows:
(i) the learned magistrate erred in finding that she had the authority to allow
the first and second respondents to raise a point of law during the
hearing of the matter, when they did not raise it in their papers.
(ii) the learned magistrate erred in finding that there was a contractual
relationship between the appellant, the first and second respondents
when such case was never made in their papers at all nor was it even
argued by the first and second respondents’ legal representative.
(iii) the learned magistrate erred in finding that there was a contractual
relationship between the appellant, the first and second respondents,
thus the relief for interdict would amount to specific performance without
a claim for damages, hence she had no jurisdiction.
(iv) the learned magistrate erred in finding that she had no jurisdiction to grant
the interdict as prayed for despite the first and second respondents
effectively admitting jurisdiction by choosing to ignore that issue although
it has been stated in the founding affidavit of the appellant.
(v) the learned magistrate erred in finding that the appellant was seeking to
protect possession which he did not have, even th ough the appellant
enjoyed symbolic possession as the appellant was allocated the disputed
stand by the third and fourth respondents.
[2] The appellant seeks no relief against the third and fourth respondents, as
they just own the land in trust for the benefit of the Ga -Mashishi
traditional community which is the land on which the stand in question is
situated.
[3] This appeal emanates from a dispute between the appellant and the first
and second respondents emanating from the acquisition and posse ssion
of stand number 6[...] Ga-Mashishi village, Mamphake section (property
or stand). The allegation by the appellant is that he ac quired the said
stand from the father (Ramphelane James Mashabela or the deceased) of
the first and second respondents in his lifetime against a full payment of
the amount of four thousand rand (R4000 -00). The appellant further
alleges that upon acquisition of the said stand he erected amongst others
a fence to mark demarcation and size of the stand and a driving school
ramp. The third and fourth respondents had, according to the appellant
endorsed the transaction between the deceased and himself.
[4] The further allegation by the appellant is that during the year 2016 the first
and second respondents encroached the stand in qu estion by removing
the fence that he erected and subdivided and sold the stand to other
people without his permission. He was engaged in sale negotiations with
the first and second respondents of the stand before they could encroach
the stand, where he ask ed for an amount of R150 000-00 from them
because of the improvements he allegedly made, which amount the first
and second respondents failed to raise. The appellant approached the
court a quo with an application which in the main sought restoration of
possession of the stand.
[5] In response to the application, the first respondent deposed to an
answering affidavit, which was confirmed by the second respondent ,
which raised a point in limine that the claim by the appellant had
prescribed as according to h is version he was disposed of the stand in
question in the year 2016. In response to the merits of the application,
the first respondent stated that it is not correct that the appellant
purchased the stand from his father because the appellant failed to
produce proof of purchase at a meeting that was held on 02 July 2016,
which was a meeting for him to produce proof of purchase not a meeting
to buy him out of the stand with R150 000-00 as he alleged.
[6] The first and second respondents deny that the appel lant was in peaceful
and undisturbed possession of the stand in question , because the
appellant is the one who occupied, fenced and placed his container on the
ploughing fields that are adjacent to the ploughing fields of the Mashabela
family. The first an d second respondents confirm that their father is
indeed now deceased. For easy reference I will sometimes refer to the
first and second respondents just as the respondents.
[7] At the hearing of the application on 17 July 2024 in the court a quo , it
became apparent that the matter was before court on 28 February 2024,
and on that particular day the appellant withdrew prayers A and B of its
notice of motion. It now becomes necessary that I state the prayers in
the notice of motion that appeared before the court a quo for the sake of
context, and they are as follows:
(a) “That the First and Second Respondents be ordered to immediately
restore possession of stand number 6[...] situated at Ga -Mashishi,
Mamphake section to Applicant;
(b) That to give full effect to an order as in paragraph (a) above, the First
and Second Respondents shall within 10 (ten) days of receiving an
order in this matter and at their own costs, fully re -erect and install
the fence on stand number 6[...] Ga-Mashishi, Mamphake section in
the same fashion as they found it erected by Applicant;
(c) That the First and Second respondents be interdicted from interfering
either directly or indirectly and in any manner whatsoever with the
Applicant’s possession of stand 6[...] Ga-Mashishi village, Mamphake
section;
(d) That the First and Second Respondents be ordered to pay costs of this
application jointly and severally, one paying the other to be absolved;
(e) Further and or alternative relief”.
[8] In issue between the parties as clearly appears from the judgment of the
court a quo is that because the appellant withdrew the mandament van spolie
application (spoliation), the court could not deal with the application for a final
interdict because the appellant was not in possession of the stand any longer,
and his appl ication for a final interdict amounted to an application for specific
performance which the court a quo alleged not to have jurisdiction to adjudicate
on that. The further reasoning by the court a quo was that ownership is not a
requirement for spoliation, but undisturbed possession is, and because the
application dealing with undisturbed possession was withdrawn, then the
appellant could not be able to interdict what he was not in possession of.
[9] It is tri te that the requirements for a final int erdict are a clear right which
must be proven on a balance of probabilities, injury committed or reasonably
apprehended which is not just physical injury but includes any interference with
ones right and absence of another satisfactory remedy1.
[10] The court a quo in dealing with the issues it had to decide referred mainly
to the provisions of section 30(1) of the Magistrates’ Courts Act 2 (MCA) and
reads as follows:
30 Arrests and interdicts
“(1) Subject to the limits of jurisdiction prescribed by this Act, the court may
grant against persons and things orders for attachments, interdicts and
mandament van spolie,
(2) …”
1 Setlogelo v Setlogelo 1914 AD 221, National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC ),
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (2) All SA 366 (A).
2 32 of 1944.
[11] Section 30(1) as quoted above was substituted by section 2(a) of the
Judicial Matters Amendment Act 42 of 2013 which came into operati on on 20
September 2010. The amendment in effect removed the words “arrest tanquam
suspectus de fuga”, which the court a quo still quoted. However, that oversight
on the part of the court a quo will not influence the issues to be decided in th is
appeal, be cause the issue is about interdicts and spoliation orders. It is also
important to note that sub-section 30(3) of the MCA was completely deleted.
[12] The court a quo in its judgment also re lied on the provisions of section
46(2) of the MCA, which for th e sake of completeness I will also restate which
reads as follows:
46 Matters beyond the jurisdiction
“(1) …
(2) A court shall have no jurisdiction in matters-
(a)…
(b)…
(c) in which is sought specific performance without an alternative of payment of
damages, except in-
(i) the rendering of an account in respect of which the claim does not exceed
the amount determined by the Minister from time to time by notice in the
Gazette,
(ii) the delivery or transfer of property, movable or immovable, not exceeding
in value the amount determined by the Minister from time to time by notice in
the Gazette,
(iii) the delivery or transfer of property, movable or immovable, exceeding in
value the amount determined by the Minister from time to time by notice in the
Gazette, where the consent of the parties has been obtained in terms of section
45;
(d…”
[13] It appears from the transcribed record that paragraphs (a) and (b) (which
I will for the sake of clear understanding also refer to them as prayers (a) and
(b), were withdrawn by the appellant in the court a quo before the matter could
be argued. That is evident from the following extract from the transcribed
record of the court a quo:
“COURT: Right, you may then proceed.
MR MASHILE: Thank you. Your Worship, previously when the matter was before
this Honourable Court, we, on behalf of the Applicant I indicated that we are
[indistinct 09:26:55 ] number, on the paragraph A and B, on the notice of
motion. And indicated that we only proceed with paragraph C and then
[indistinct] paragraph, permission, to the issue of costs.
COURT: Yes
MR MASHILE: And just after finalising t hat issue my comment still are based
the point that, since we are through those two paragraphs the Court, this Court
no longer had jurisdiction. And then , I indicated that we are not prepared for
that, sought indulgence from this Court that we all prepare [indistinct] -
09:27:37] the issue of whether this Court, after we have proven our
paragraphs A and B in the notice of motion still had jurisdiction to pre sent with
the matter. And we are here today. I am ready to proceed on the old and all
merits in relation to paragraph C and succeeding paragraphs”.
[14] It is clear from the court a quo’s record as quoted above that after
paragraphs (a) and (b) of the notice of motion were withdrawn the issue
of jurisdiction came up, and both legal representatives were given an
opportunity by the court a quo to prepare heads of argument on that
aspect so that the court a quo could be addressed on that aspect. It is
common cause that the issue of jurisdiction was never raised in the
answering affidavit(s) of the respondents. The explanation that was given
by the respondents is that the issue of jurisdiction arose when the
appellant withdrew paragraphs (a) and (b) of the notice of motion.
[15] The appellant argues that the court a quo dealt with the issue pertaining to
jurisdiction even though the first and second respondents failed to raise it
in their papers. The appellant argues that the court a quo was not well
placed to raise it mero motu. If it was the first and second respondents
who raised the issue of jurisdiction, they must have raised that in their
papers, to an extent that they could have even invoked the provisions of
Rule 55 of the Rules Regulating the Conduc t of Proceedings in the
Magistrates’ Courts (MCR). That is evident from the following extract from
the transcribed record of the 17 July 2024 of the said proceedings:
“MR MASHILE… I do not want to go to the merits of arguing that point, but it is
important to know if they raised the issue of jurisdiction or the Court
mero motu raised the issue. Because if it was them, they had missed the
point then it is positive of their point if they raised the point at that time
of hearing the matter. Because the Rule 55 tells you how you can raise
the point of, it is either [indistinct] by the only notice that we have on the
points of law or you include it in your answering affidavit…”
[16] In response to the question of who raised the issue of jurisdiction and also
the fact that if it was raised by the first and second respondents, they
failed to do that on notice or in their answering affidavits the legal
representative of the first and second respondents responded as follows:
“MR TSHIDI: Whether jurisdiction was ra ised by us or the Court, the bottom
line is, whether this Court has jurisdiction or not. Because this authority
say, even if the parties can agree that they are going to proceed before a
Magistrate Court, if the Court is of the view that it does not have
jurisdiction, that is the decision of the Court. It is Amen”.
[17] The court a quo at the end of the above-mentioned submissions, decided
to proceed with the matter and hear submissions on both jurisdiction and
the merits at the same time, which then led t o the judgment that is
challenged by the appellant. MCR 6(4) states that:
“(4) Every pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his or her claim, defence or answer
to any pleading, as the case may be, with sufficient particularity to enable
the opposite party to reply thereto.”
[18] In the case at hand I have already explained as to how it came about that
the issue of jurisdiction was raised at that stage of the proceedings. The
court a quo on page 3 of its judgment states that the issue pertaining to
jurisdiction was raised by the respondents. I must point out that it is
permitted for the court to raise issues mero motu if the adjudication of
those issues is necessary to dispose of t he matter as rightly submitted by
the respondents quoting the case of Booi v Amathole District Municipality
and others3.
3 (CCT119/20) [2021] ZACC 36; 2022 (3) BLLR 265 (CC) (19 October 2021).
[19] The Constitutional Court dealt with that aspect drawing from its earlier
judgment of CUSA v Tao Yang Metal Industries 4 and the S upreme Court
of Appeal ’s decision of Road Accident Fund v Mothupi 5. If the issue of
jurisdiction was raised by the court a quo after seeing that it was
important for the adjudication of the case, it was well and good because
that is supported by even the Constitutional Court, and I would, based on
the principle of precedence have no issue with that.
[20] The distinction between the case at hand and the Booi case, supra, which I
have referred to in the preceding paragraph is that in the case at hand
the iss ue of jurisdiction was raised by the respondents after the
withdrawal by the applicant of the first two prayers in the notice of
motion. The law is very clear that a party has a duty to allege in the
pleadings the material facts upon which they rely, as i t is impermissible
for a trial court to rely on issues not raised in the pleadings6.
[21] The peculiarity in the case at hand is that although the issue pertaining to
jurisdiction was not raised by the respondents in their pleadings, for the
reasons that I have already mentioned as presented by the legal
representative of the respondents, the court a quo gave the parties an
4 [2008] ZACC 15; 2009(2) SA 204 (CC).
5 [2000] ZASCA 27; 2000 (4) SA 38 (SCA).
6 Minister of Safety and Security v Slabbert [2010] 2 All SA 474 (SCA), Not yawa v Makana Municipality and Others
(CCT115/18) [2019] ZACC 43;2020 (2) BCLR 136 (CC), Moroka v Premier of the Free State Province and Others
[2022] ZASCA 34.
opportunity to go and prepare heads of argument on the issue of
jurisdiction.
[22] The fundamental question under the circumstances w ould be whether the
appellant suffered any prejudice because of the manner in which the
proceedings were handled in that the procedure or process of amendment
was usurped, but instead the court a quo chose a quicker process of just
being addressed after he ads of argument were prepared. I find no
irregularity in the procedure that the court a quo opted for, because the
appellant also withdrew some prayers in court which led to the issue of
jurisdiction being raised, as that is also supported by the Constitut ional
Court, where in the case of Eke v Parsons7, on the strict adherence to the
rules said the following:
“39 … That, however, does not mean that courts should be detained by the
Rules to a point where they are hamstrung in the performance of the core
function of dispensing justice. Put differently rules should not be observed
for their own sake. Where the interests of justice so dictate, courts may
depart from a strict observance of the rules. That, even where one of the
litigants is insistent that there be adherence to the rules. Not surprisingly,
courts have often said ‘ (I)t is trite that the rules exist for the courts, and
not the courts for the rules”
7 2016 (3) SA 27 (CC).
[23] In my view even though there is a depart from the general applicable
Rules as in the case at h and it should still be fundamental to investigate
as to whether the other party suffer ed any prejudice because of the
depart from normal forms and procedure, and whether the departure is in
the interests of justice 8. In my view the argument by the appellan t that
the court a quo dealt with an issue that was not in the papers of the
respondents is flawed because they were both given an opportunity to
prepare on that aspect and subsequently given an opportunity to address
the court on that aspect of jurisdiction.
[24] The interests of justice would surely not be offended because of the way
those proceedings were handled as no prejudice was suffered by any of
the parties. In the result nothing can come out of the argument by the
appellant that the court a quo dealt with the issue not in the papers, and
I find no fault with the approach that the court a quo followed.
[25] The next issue that I have to deal with is as to whether the court a quo
was correct in finding that it cannot deal with paragraph C of the notice of
motion, as the view of the court a quo was that the appellant seeks an
act of specific performance where there is no option for damages in the
alternative. I have already stated as to what the requirements for a final
interdict are. The provision s of section 46 of the MCA guides the
8 Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A), Maharaj v Barclays National Bank Ltd 1976 (1) SA
481 (A).
Magistrate dealing with an application for mandament van spolie and
interdicts as to the value that the magistrate must consider in
determining whether he/she has jurisdiction to hear the matter . It is not
however stated as to how one determines the value of, for example the
property dealt with if property is involved.
[26] The case of Botha v Andrade 9 (Botha case) has been referred to as the
leading case that gives guid ance on matters that come before the
Magistrates’ Courts pertaining to interdicts . I refer to two cases of the
High Courts in different Divisions , which followed the Botha case and
rightly so as it is the decision of the Supreme Court of Appeal , and they
are the cases of NPE Construction (Pty) Ltd and A nother v Mkhonto and
Others10 (NPE case) and van Oordt and Another v Gilbert 11, and they
relied on the Botha case in determining the value of the matter in order
for one to establish jurisdiction.
[27] The Botha judgment clarified that where the applicatio n or action that
comes before a Magistrate is an interdict in terms of provisions of section
30 of the MCA, it cannot be determined without considering the provisions
of section 29 as well of the very same MCA. I will for the sake of
completeness quote wha t the Supreme Court of Appeal (SCA) in the
Botha case, supra, regarding the question of interpretation on paragraphs
9 (2007/578) ZASCA 120 (26 September 2008).
10 (51/2023) [2025] ZAMPMBHC 26 (9 April 2025).
11 (CA08/2019) [2019] ZAECGHC (6 August 2019).
13 and 14 of the said judgment as follows on sections 30 and 29 of the
MCA:
“[13] The wording of the two sections is clear and unambiguous and the
ordinary meaning of the words ought to be given effect. … The section
provides that a magistrate may grant certain orders including interdicts,
subject to the limits of jurisdiction prescribed by the Act . The search for
the ‘limits’ referred to in s 30(1) leads inevitably to ss 28 and 29 of the
Act and the conclusion is, to my mind, unavoidable that the qualification
‘subject to the limits of jurisdiction prescribed ‘ by the Act is a reference
to s 29 (relating to the limits of jurisdiction in respe ct of matters referred
to in the section).
“[14] … It seems to me the two sections (30 and 29) complement each other
and where the limit of the magistrate’s jurisdiction are required to be
determined in interdict proceedings, in so far as the value of the matter in
dispute is concerned, the two sections ought to be read together. Section
29 speaks to the value of the matter in dispute and s 30 limits the
jurisdiction of the magistrate’s court to the limit set out in s 29, …”
[28] The explanation of the application of sections 29 and 30 of the MCA can be
clearly understood as explained further in the Botha case, supra, on
paragraphs 15 and 16, where the SCA continued to say:
“[15] … It follows that s 29(1)(g) is applicable to interdicts granted by the
magistrate under s 30, and the section operates to set the jurisdictional
limit of the value of the subject matter in dispute and other specific
matters referred to in s 29.”
“[16] The central question this case raises, however, is how to determine ‘the
value of the matter in dispute’. The issue in dispute between the parties is
the alleged nuisance emanating from the respondents’ unlawful activities.
The abatement of the nuisance is capable of qualification and so the
jurisdictional limits of the magistrate s’ court can be determined without
difficulty. Although the court below correctly identified the issue as being
the ‘alleged nuisance’, it attached value to the business rather than the
subject matter in dispute, which was the abatement of the unlawful
activities. In this regard the court erred. It is that conduct or the cost of
the abatement of the unlawful activities to which value had to be attached
and not the business per se. If the cost of abating the nuisance was in
excess of R100 000 the magistrate would clearly have had no jurisdiction
in the matter.”
[29] The Botha judgment clarifies the fact that the value of the ‘matter in
dispute must be quantified’, and that value of the matter that would have
been quantified will then lead the magistrate to determine as to whether
it has jurisdiction or not. It is clear that one has to get into the matter
and hear it to be able to follow the guidelines as set down in the Botha
case, supra. The court did not clearly delve into the matter as required by
the Botha judgment. It will only be fair that the matter be returned back
to the court a quo so that the enquiry as set down in the Botha judgment
be followed and thereafter the court a quo will then be able to determine
if it has jurisdiction or not. The part ies cannot be faulted for the manner
in which the matter was dealt with in the court a quo and clarity had to
be sought in this case , and therefore each party will have to bear its own
costs.
[30] In the result the following order is made:
(i) the appeal succeeds,
(ii) the order of the court a quo granted on 25 September 2024
dismissing the application for lack of jurisdiction is set aside,
(iii) the matter is remitted back to the court a quo to be properly dealt
with, by a different magistrate,
(iv) each party to bear its own costs.
____________________________
J.T. NGOBENI
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA, LIMPOPO DIVISION,
POLOKWANE
I AGREE
K.L. PILLAY AJ
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA, LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
For the appellant: Mr M.E. Mashile
Instructed by: Malope D. Mahlaela Inc.
For the 1st and 2nd respondents: Mr M. Chidi
For 3rd and 4th respondents: No appearances
Instructed by: Mammule Chidi Incorporated