THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
In the matter between:
TAU MINING CONTRACTORS (PTY) LTD
and
AVENG MOOLMANS (PTY) LTD
BLACK MOUNTAIN MINING (PTY) LTD
Coram: LEVERJ.
Heard: 26 January 2026.
Delivered: 06 February 2026.
Not Reportable
Case no: 2671/2024
Applicant
1st Respondent
2nd Respondent
Summary: Execution of a spoliation order - Notwithstand ing application for
leave to appeal same - Section 18(3) of the Superior Courts Act 10 of 2013 -
Applicant to prove exceptional cfrcumstanccs - Irreparable harm - No
exceptio nal circumstances or irreparable harm established - Application
unsuccessfu I.
2
ORDER
1. The late filing of the applicant 's replying affidavit is condoned.
2. The second respondent is granted leave to file a further affidav it.
3. The section 18(3) application is dismissed .
4. In respect of the first respondent , there is no order as to costs.
5. In respect of the application for con donat ion, there is no order as to costs.
6. In respect of the section 18(3) application, the applicant will pay the second
responde nt's costs . Such costs are to be taxed on scale "C" and are to include
the costs of two counse l where two counsel were actually engaged in the
matter .
JUDGMENT
LeverJ
[l] This judgment involves an application under the prov1s1ons of
section 18(3) of the Superior Courts Act 1 ("the Act") to enforce a spoliation
order I granted on I November 2024 notwithstand ing an application for
leave to appeal in the same matter. The said order returns possession to the
applicant of a certain area of the Gamsberg mine, referred to as the ' mining
area' in this application as well as in the original spoliation proceedings.
The ' mining area' defined by annexure "FA4" in the spoliation proceedings
is a limited area of the mine as distinct from the entire Gams berg mine.
I )0 of 20 )3.
3
[2] Prior to the spol iation application, the applicant was employed as a mining
contractor on the Gamsberg mine. The second respondent is the owner of
the mining right to the Gamsberg mine. A contractual relationship existed
between them. This contractual relationship was ultimately terminated
prior to the institut ion of the relevant spoliation application. However, the
date and circumstances of the termination of this contract are in dispute.
[3] The applicant claims both a debtor-and-creditor as well as an enrichment
lien over the relevant mining area.
[ 4] Rule 49(11) which previously regulated the enforcement of judgments
during the appeal process has been repealed.2 The common law relating to
enforcement of a judgment despite a pending appeal has been replaced by
sect ion 18 of the Act. The relevant parts of section 18 of the Act read as
follows:
"18 (1) Subject to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution of a decision
which is the subject of an application for leave to appeal or of an appeal, is
suspended pending the decision of the application or appeal.
(3) A court may only order otherwise as contemplated in subsection (1) or (2), if
the party who applied to the court to order otherwise, in addition proves on a
balance of probabilities that he or she will suffer irreparable harm if the cou11
does not so order and that the other party will not suffer irreparable harm if the
court so orders.
(4) (a) !fa court orders otherwise, as contemplated in subsection (1)-
(i) the court must immediately record its reasons for doing so;
2 Repealed on 22 May 2015.
4
(ii) the aggrieved party has an automatic right of appeal to the next
highest court;
(iii) the court hearing such an appeal must deal with it as a matter of
extreme urgency; and
(iv) such order will be automatically suspended , pending the outcome of
such appeal."
[5] The position under the common law has been authoritati vely set out by
Corbett JA in the matter of South Cape Corporation (Pty) Ltd v
Engineering Management Services (Pty) Ltd.3 ("South Cape"). The
intention behind the common law rule was to prevent irreparable harm to
the party seeking to exercise its right to appea l.4
[ 6] It is apparent from the wording of section 18 of the Act that the prevent ion
of irreparable harm to the party seeking to exercise their right of appea l is
still the primary consideration. However, when one examines the
differences between the common law rule and the requirements of
section 18(1) as read with section 18(3) of the Act, the current position
under section 18 is more onerous on the party seeking to enforce the
relevant order pending the comp letion of the appeal process than it was
under the common law. 5
[7] The position under the common law, before section 18 of the Act came to
regulate the position when an order is put into effect whilst an appeal
process is still pending, gave the relevant High Court a broad general
discretion as to whether to grant relief or not.6 This is no longer the case .
3 1977 (3) SA 534 (AD) at 544H to 5451-1.
4 Supra at 545B.
5 University of the Free State v Ajriforum and Another 20 18 (3) SA 428 (SCA) paras 9 to 11.
6 Ntleme=a v Helen Su=man Foundation and Another 20 17 (5) SA 402 (SCA) para 20.
5
[8] Aga in, under the common law, where there was potential for irreparab le
harm to both parties should the order be put into effect before the appeal
process was finalised , the court would weigh up the balance of hardship as
one of the factors to be considered in making the decision relating to the
enforcement of the order pending the finalisation of the appeal. 7 This
balance of hardship is no longer a consideration under the provisions of
sect ion 18 of the Act. This is evident from section 18 itself.
[9] The probabil ity of success in the contemp lated appeal process is not
mentioned anywhere in the wording of section 18 of the Act. However , the
Supreme Court of Appeal (SCA) has determined that the prospect of
success still plays a role.8
[10] Turning now to the requirements to be estab lished under the provisions of
seclion 18 of the Act for an order that the execution of an order may be put
into effect pending the finalisation of the appeal process.
[ 1 1] It is evident from the provisions of section 1 8(1) that a person who seeks
to put a judgment and order into effect before the finalisation of the appeal
process , must estab lish 'exceptio nal circumstances ' to depart from the
norm of an appea l process suspending the operation of such order pending
the final isation of the appeal. Reading section 18(1) together with section
18(3), the onus of establishing such 'exceptiona l circumstances ' would fall
on the applicant for such relief.
[12] In addition to estab lishing 'exceptional circumstance s', the applicant must,
under the provisions of section 18(3), establish on a balance of probabilities
7 Sowh Cape (Supra) fn 3 at 545f'.
8 University of the Free State v Afriforum and Another (Supra) fn 5 paras 14 and 15.
6
that it would suffer irreparable harm if the order being the subject of an
appeal is not put into effect, and that the opposing party (the appellant) will
not suffer irreparable harm if such order is put into effect.
[13] In developing the law relating to the application of section 18, Sutherland J
in the case of lncubeta Holdings (Pty) Ltd and Another v Ellis and Another 9
("Jncubeta") set out the position on determining 'exceptional
circumstances' . I quote the relevant passages:
" It seems to me that there is indeed a new dimension introduced to the test by the
provisions of s 18. The test is twofold. The requirements are:
• First, whether or not 'exce ptional circumstances' exist; and
• Second, proof on a balance of probabilit ies by the applicant of -
o the presence of irreparable harm to the applicant/victor, who wants to put
into operation and execute the order; and
o the absence of irreparable harm to the respondent /loser, who seeks leave to
appeal.
What constitutes 'exce ptiona l circumstances ' has been addressed by Th ring J in MV Ais
Mamas Sea/rans Maritime v Owners, MV Ais Mamas, and Another 2002 (6) SA 150
(C), where a summation of the meaning of the phrase is given as follows at l 56J- l 57C:
• What does emerge from an examination or the authorities, however. seems to me to be the following:
I. What is ordinarily contemplated by the words ·'exceptional circumstances .. is somethin g out of
the ordinary and of an unusual nature; something which is excepted in the sense that the general
rule does not apply to it; something uncommon, rare or dirTerent; "bcsonder·•, •·seldsaam".
"uitsonderlik". or "in 'n hoe mate ongewoon".
2. To be exceptional the circumstances concerned must arise out of. or be incidental to, the particular
case.
3. Whether or not exceptional circumstances exist is not a decision which depends upon the exercise
of a judicial discretion: their existence or otherwise is a matter of fact which the Court must decide
accordingly.
9 2014 (3) SA 189 (GJ).
7
4. Depending on the context in which it is used, the word "exceptional'" has two shades of meaning:
the primary meaning is unusual or different; the secondary meaning is markedly unusual or
specially different.
5. Where, in a statute, it is directed that a fixed rule shall be departed from only under exceptional
circumstances, effect will, generally speaking, best be given to the intention of the Legislature by
applying a strict rather than a liberal meaning to the phrase, and by carefull y examining any
circumstances relied on as allegedly being exceptional.'
Significantly, although it is accepted m that judgment that what is cognisable as
' exceptional circumstances' may be indefinable and difficult to articulate, the
conclusion that such circumstances exist in a given case is not a product of a discretion,
but a finding of fact.
The survey of authorities addressed by Thring J included a broad range of
circumstances, and his summation or compendium appears to be of universal
application. Nevertheless. it seems to me, to be necessary to express caution about
importing from one kind of enquiry into another kind of enquiry an understanding of a
familiar phrase. It is important to appreciate that Thring J was not addressing the phrase
in s 18 of the SC Act but in the provisions of s 5(a)(iv) of the Admiralty Regulation Act
I 05 of 1983, which confers a power on a competent court to direct an examination of
various things in order to procure evidence.
A given phrase in any statutory provision has a function specific to that provision and
to that specifi c statute and the primary aim of the interpreter is to discover the function
it performs in that specific context. It may perform a different function in another statute
and one must avoid being seduced by beguiling similarit ies.
The context relevant to s 18 of the SC Act is the set of considerations pertinent to a
threshold test to deviate from a default position, ie the appeal stays the operation and
threshold test to deviate from a default position, ie the appeal stays the operation and
execution of the order. The realm is that of procedural laws whose policy objectives are
to prevent avoidable harm to litigant s. The primary rationale for the default position is
that finality must await the last court ' s decision in case the last court decides differently
- the reasonable prospect of such an outcome being an essential ingredient of the
decision to grant leave in the first place. Where the pending happening is the application
for leave itself, the potential outcome in that proceeding, although conceptually distinct
8
from the position after leave is granted , ought for policy reasons to rest on the same
foot ing.
Necessari ly, in my view, exce ptionality must be fact-specific. The circumsta nces which
are or may be 'exceptiona l' must be derived from the actua l pred icame nts in which the
given litigants find themselves. I am not of the view that one can be sure that any true
novelty has been invented bys 18 by the use of the phrase .
. . . The proper meaning of that subsection is that if the loser, who seeks leave to appeal ,
wi ll suffer irreparable harm, the order must remain stayed , even if the stay will cause
the victo r irreparable harm too. ln add ition, if the loser wi ll not suffer irreparable harm,
the victor must nevert heless show irreparab le harm to itself. A hierarchy of entitlement
has been created , absent from the South Cape test. ... " 10 (The emphasis is mine.)
[ 14] The SCA, in the matter of Tyte Security Services CC v Western Cape
Provincial Government and Others 11 ("Tyte"), took a more nuanced and
less formalistic approach to the application of section 18(1) as read with
section 18(3) of the Act. In the Tyte case, it was argued before the SCA that
each of the three requirements set out in section 1 8( 1) and (3) were distinct,
separate and self-stand ing. The response to this argument is important.
[ 15] To some extent, the approach taken by the SCA in the Tyte case is a counter
point to the approach taken in the Incubeta case and some of the other
authorities quoted above. In these circumstances , it is necessary to quote
substantive ly from the Tyte case to understand what is required in the
application of sect ion 18(1) and (3).
[16] The relevant passages in the Ty te case , s howing th e SCA ' s response to the
argument that the three requirements that need to be established under the
10 Supra paras 16 to 24.
11 2024 JDR 2306 (SCA) : 2024 (6) SA 175 (SCA).
9
provisions of section 18(1) and (3) are distinct, separate and self-standing,
read as follows:
"Whi lst there are indeed statements in those judgments that would appear to support
counse l's fundamental hypothesis , they seem to have been made in passing. They thus
call for closer examination in this matter. An important point of departure , so it seems
to me, is that consideration of each of the so-called three requirements is not a
hermetically sealed enquiry and can hard ly be approac hed in a com partmen ta lised
fashion.
It is important to recognise that the existence of 'exceptional circumstances ' is a
necessary prerequisite for the exercise of the court's discretion under s 18. If the
circumstances are not truly exceptional then that is the end of the matter. The
application must fail and falls to be dismissed. If, however , exceptional circumstances
are found to be present, it would not follow , without more, that the application must
succeed.
What constitutes irreparable harm is always dependent upon the factual situation in
which the dispute arises , and upon the legal principles that govern the rights and
obligations of the parties in the context of that dispute. It was accepted in Knoop that
'(t)he need to establis h exceptional circumstances is likely to be closely linked to the
app licant establishing that they w ill suffer irreparable harm if the ... order is not
implemented immediately ' . The same, I dare say, can be said of its cou nterpart , the
absence of irreparable harm to the respondent. In that sense, the presence or absence of
irreparable hann , as the case may be, can hardly be entirely divorced from the
exceptional circu mstances enquiry. It would perhaps be logically incoherent for a court
to conclude , on the one hand , in favour of an applicant that exceptional circumstances
subsist , but, on the other , against an applicant on either leg of the irreparable harm
enquiry.
enquiry.
The argument , as I have it, is that , as the language of s 18(3) is clear - it is for an
applicant , in addition to exceptional circu mstances , to prove on a balance o f
probabilit ies that it will suffer irreparable harm and conversely the other party would
not. A court is thus required to undertake what would be in the nature of a tick-box
exercise by enquirin g into and satisfying itself as to the.first, then the second and finally
the third, in that order. Un less each box is successful ly ticked, the applicant must fail.
Here, so the argument proceeds, the High Court failed to undertake such an exercise;
had it done so, it could not permissibly have ticked the third box; consequently, the s
18 appl ication should have failed. Eve n accepting that the legislature has employed the
words 'in addition [to except iona l circumstances] proves on a balance of probabilities '
in s 18(3), it would be passing strange that, if an applicant comes short in respect of
either the second or third requirements. it would nonetheless still be able to successfu lly
meet the except ional circumstances threshold. The use of the words ' in addition proves '
in s I 8(3) ought not to be construed as necessar ily enjoining a court to undertake a
furthe r or additional enquiry. The overarching enqu iry is whether or not except ional
circumsta nces subsist. To that end, the presence or absence of irreparab le hann, as the
case may be. may well be subsu med under the overarching exceptional circumstances
enqu iry. As long as a court is alive to the duty cast upon it by the legislature to enquire
into. and satisfy itself in respect of. exceptio nal circumstances, as a lso irreparable harm,
it does not have to do so in a formulaic or hierarchical fashion. " 12 (Refe rences omitted
and the empha sis is mine.)
[17] In the Tyte case, as can be seen from the passages quoted above, the SCA
recognises the fact that in most cases, the irreparab le hann would be
subsumed into the 'except ional circumstances'. In those circumstances ,
one would of necessity rely on the same facts to establish both
requirements.
[18] In the Jncubeta case, it is emphas ised that exceptional circumstances is a
finding of fact and not an exercise of a judicial discretion . It was also
finding of fact and not an exercise of a judicial discretion . It was also
emphasised in the Jncubeta case that a finding of exceptional
circumstances must emerge and be evident from the factua l predicament
that the litigants find themselves in.
12 Tyte (Supra ) fh 11 paras 10 to 14.
11
[19] In the present matter, the application for leave to appeal the spoliation
judgment and order and this application were heard on consecutive days. I
have written a separate judgment in the application for leave to appeal,
which will be handed down on the same day as this judgment. In that
application for leave to appeal, I gave both applicants in that matter (the
respondents in this matter) leave to appeal on several grounds . Self
evidently, this means that on those grounds where leave to appeal has been
granted, the respondents have a reasonable prospect of success. On the
strength of the authorities referred to above, this is one of the factors I must
consider in assessing the existence or otherwise of irreparable harm.
[20] At this point, I need to mention the standing of the first respondent herein
(Aveng Moolmans). The first respondent belongs to a group of companies
(the Moolmans Group), and from 1 April 2025, a different corporate entity
in that group took over the bulk mining contract with the second respondent
(Black Mountain Mining or BMM). This issue came up in the application
for leave to appeal and I dealt with it as briefly as circumstances would
allow. In the appl ication for leave to appeal, I ruled that the first respondent
herein (the first applicant in the application for leave to appeal) , had legal
standing in the application for leave to appeal by virtue of the original court
order I made against it. The position is very different in these proceedings.
I made my prima facie views known to the parties in open court. Ms Cane
SC, who represented the first respondent herein, was given an opport unity
to take instructions. After taking such instructions , Ms Cane informed the
court that her client was willing to accept the court's primafacie view of
what the end result would be - that there be no order of costs against the
first respondent in these proceedings , and that there also be no order of
first respondent in these proceedings , and that there also be no order of
costs in favour of the first respondent in these proceedings. However , Ms
Cane indicated that her client wanted her to place certain things on the
12
record before doing so. Ms Cane placed such facts on the record. They are
not directl y relevant to this judgment. I asked Mr Hollander who appeared
for the applicant herein what his client's position was in regard to the first
respondent 's position. Mr Hollander said his client did not seek a costs
order against the first respondent in these proceedings. In regard to the first
respondent herein , that is the order I intend to make.
[21] I need to consider an application by the applicant to condone the late filing
of its replying affidavit which was filed several months out of time.
Conseq uently, should the applicant be granted such condo nation, the
respondent's cond itional app lication to file a further affidavit respond ing
to new material raised in the replying affidav it will need considerat ion.
[22] The exact extent of the lateness of the replying affidavit is contested by the
parties, but it was at least 90 days uut of time. The exp lanation given was
that, shortly after the spoliation judgment was handed down, the applican t
went under business rescue. During that time period, the applicant was
deal ing with another court application to prevent the second and first
respondents from using certai n min ing equipment that belonged to the
appl icant or that the applicant was respo nsible for. Further, the business
rescue practitioner appointed his own attorneys who had to familiarise
themselves with the matter. Also, the business rescue practitioner needed
assistance and input of the chief executive officer (CEO) of the applicant,
who at the time had to be out of the country because his son suffered from
a rare genetic disorder and his son cou ld only receive the necessary
treatment overseas.
[23] Mr La Grange SC pointed to gaps in the time line that were not, on his
submission, adequately explained, and submitted that the business rescue
13
practitioner and the CEO could have been in contact by electronic means,
such as a video conference.
[24] On balance, my view is that the applicant has, despite the shortcomings
pointed out by Mr La Grange, established a just cause. The second
respondent has filed an additiona l affidavit dealing with such new matter
as needed to be traversed. I believe the late filing of the app licant's replying
affidav it ought to be condoned , and that the second respondent be granted
leave to file the additional affidavit which has already been condit ionally
filed. Neither party will suffer any prejudice in these circumstances. Such
issues as the gaps not explained in the timeline, and the unnecessary
proliferation of documents in these proceedings , which the second
respondent is largely responsib le for, will be revisited when dealing with
the issue of costs.
[25] Mr Hollander, for the applicant , argues that the appl icant has both a debtor
and-creditor lien as well as an improvement lien over the mining area as
defined in annexure "FA4" to the founding affidavit in the spoliation
applicat ion. That these liens only have value to the app licant by virtue of
the ore under the mining area. That the second respondent , through the
other mining contractors it employs, is now mining the ore contained under
the relevant mining area. That this ore deposit will be mined out in a period
of thirty months. In these circumstances , he submits that by the time that
any possible appeal is finalised in this matter, the ore in the relevant mining
area will be mined out. Accordingly , he argues that the liens would then be
worth less to his client by the time that any appeal process would be
finalised. Mr Hollander also subm its that the second respondent is facing
an application for its winding-up. He submits that this constitutes both the
exceptional circumstances his client relies upon, and the irreparab le harm
14
that his client will suffer if it is not afforded the relief prayed under section
18 of the Act. Further, Mr Hollander contends that the second respondent
would suffer no irreparable harm as it could simply mine elsewhere on the
Gamsberg mine or on any of the two other mines the second respondent
operates.
[26] In answer to Mr Hollander's subm issions , Mr La Grange argues that: A lien
has no inherent value; The work done by the applicant , including the so
called improvements , was contemplated and provided for by the
contractual arrangement that existed between the parties at the material
time; That accord ingly, liability for payment for work done needed to be
established in accordance with the mechanisms provided for that purpose
in the contract between them; The said contract provided mechanisms for
both undisputed amounts and disputed amounts to be resolved; The
applicant never raised a dispute in relation to payment for the alleged
improvements from the start of the contract until a letter dated 11
September 2024 (annexure "AA22") , about six weeks before the contract
came to an end on the version most favourable to the applicant; That the
improvements upon which the enrichment lien were based were not sine
causa ; In respect of the debtor-creditor-lien , the second respondent has
provided security for that claim in the order of about R28 000 000 (Twenty
eight Million Rand); and That the life of the mine is in excess of ten years,
which should provide ample time for the applicant to pursue payment for
the alleged improvements to the mine, either under the mechanisms
provided by the contract (arbitration) or by instituting action in an
appropriate court. Further, in relation to the winding-up application his
client faced, Mr La Grange submits that the application was brought by the
present applicant and that it was an abuse of the court process. He also
submits that it was not being actively pursued.
15
[27] On the view I take of the matter, this second last submission is the most
persuasive. One must remember that the purpose of section 18 of the Act
is the same as was provided under the common law. That is to protect the
initial loser, who decides to exerc ise its right of appea l, from suffering
irreparable harm if at the end of the day it succeeds in its appeal. The
irreparab le harm conte mplated by section 18 of the Act, in my view, means
just that, that such harm is irrepara ble. In other words, it is harm that cannot
otherwise be recovered from, and wou ld leave the applicant with no
remedy to recover the amount it claims in respect of the improvements it
alleges it made to the mine.
[28] Except ional circumstances and irrepa rable harm are to be decided upon on
the facts as they exist between the parties at the material time. On the facts
as they were presented to this court , the life of the mine is ten years plus.
The applicant docs not have to wait until the appea l process is final ised to
pursue its claims for enrichment against the second respondent. Nothing
stops the applica nt with proceeding with such claims immediately. Indeed,
the applicant has not exp lained why it has not done so yet.
[29] I accept that the applicant will lose the utility of holding its security
provided by the claimed liens against the second respondent. Thereby, it
also loses the leverage the holding of the lien might have as against the
second respondent. However, this harm is not irreparable in the sense
contem plated by sect ion 18 of the Act. The applicant can still institute its
cla ims either by arbitration or action to establish and quantify its
enr ichment c la ims . Furt her. J accept that o nce this is done, there w ill sti ll
be value in the mine itself against which the applicant might execute to
satisfy any ruling or judgment that it might obtain in its favour. In these
16
circumstances, I hold that the applicant has not established either the
exceptional circumstances it claims or the irreparable harm it might suffer.
[30] On the costs issue, there are three matters to be considered. The first is the
issue of the costs relating to the first respondent. The second is the costs
occasioned by the application for condonation. Finally, the costs relating
to the section 18(3) application.
[31] On the first issue, the facts and circumstances have already been set out
above. There is no dispute, therefore, there will be no order in favour of, or
against the first respondent. In short, there will be no order as to costs as
far as the first respondent is concerned.
[32] On the issue of the costs relating to the application for condonation , the
applicant sought costs in the event that the condonation was opposed. It
was in fact opposed. However, Mr La Grange had a valid point that there
were aspects that were not adeq uately explained. Nonetheless, the second
respondent was responsible for a vast proliferat ion of papers in the
condonation proceedings which were not strictly necessary. Taking all
these factors into account, I believe it would be equitable in the
circumstances to make no order as to costs in respect of the condonation
proceedings.
[33] On the issue of costs of the section 18(3) application. There is no reason
why costs should not follow the event. The issues are such that the matter
warranted the employ ment of two counse l. For the same reason. costs are
to be taxed on scale "C".
17
[34] Accordingly, the following order is made:
1. The late filing of the applicant ' s replying affidavit is condoned.
2. The second respondent is granted leave to file a further affidavit.
3. The section 18(3) app lication is dismissed.
4. In respect of the first respondent , there is no order as to costs.
5. In respect of the application for condonat ion, there is no order as to
costs.
6. In respect of the section 18(3) application , the applicant will pay the
second respondent's costs. Such costs are to be taxed on scale "C"
and are to include the costs of two counsel where two counse l were
actually engaged in the matter.
Appearances
For Applicant:
Instructed by:
For I
st
Respondent:
Instructed by:
For 2nd Respondent:
Instructed by:
L.G. LEVER
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION , KIMBERLEY
Adv L Hollander & Adv J Harmse
Van De Wall Inc.
Adv Cane (SC), Adv Schafer & Adv Ndlovu
Duncan & Rothman Inc.
Adv WG La Grange (SC) & Adv OS Hodge
Duncan & Rothman Inc.