THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
In the matter between:
AVENG MOOLMANS (PTY) LTD
BLACK MOUNTAIN MINING (PTY) LTD
and
TAU MINING CONTRACTORS (PTY) LTD
In re:
TAU MINING CONTRACTORS (PTY) LTD
and
A VENG MOOLMANS (PTY) LTD
BLACK MOUNTAIN MINING (PTY) LTD
Not Reportable
Case no: 2671/2024
1st Applicant
2nd Applicant
Respondent
App licant
1st Respondent
2nd Respondent
2
Coram: LEVER J.
Heard: 26 January 2026.
Delivered: 06 February 2026.
Summary: Leave to appeal - Sect ion 17( l)(a) of the Superior Courts Act 10 of
2013 - Appeal must have reasonable prospects of success or compe lling reason : •1
to be heard - Both established - App lication for leave to appeal succeeds.
ORDER
1. The first applicant is granted leave to appeal to the Supreme Court of Appeal
on the grounds set out in the first, third, fourth, fifth, sixth and seventh
grounds pursued by it as set out in this judgment.
2. The first _applicant is refused leave to appeal on the second ground of appeal
it pursued as set out in this judgment.
3. The second app licant is granted leave to appeal to the Supreme Court of
Appeal on the grounds set out in its first, second, third, fourth, sixth and
eighth grounds of appeal pursued by it as set out in this jud gment.
4. The seco nd app licant is refused leave to appeal on the fifth, sevent h and
ninth grou nds of appea l it pursued as set out in this judgm ent.
5. The cost::; in ,·e lati on to this applicQtion for leave to a ppea l are to be costs in
the appeal.
3
JUDGMENT
LeverJ
[I ] This is an application for leave to appeal, by both the present applicant s
(the applic ant/s), aga inst a judgment and order I granted on I November
2024. In that judgment, I granted the present respondent (the respondent) a
spoliation order returning to its possess ion a portion of the Gamsberg mine,
referred to in the original applicati on and in these proceedings as the
' mining area' as distinct from the entire mine. In the original spoliation
proceedings, I also granted an order in favour of the respondent for the
return of certain mining equipment and other movables.
[2] The relevant mining area was defined by means of an aerial photograph
which demarcated the said mining area within a red line which had been
overlaid on the said photograph. This photograph was annexed to the
founding papers as annexure "FA4". The definition of the mining area and
the way my order was framed in relation to the said mining area was one
of the gro unds of appeal pursued by the applicants.
[3] The first applicant was a mining contractor on the Gamsberg mine. The
second applicant is the holder of the mining right in respect of the
Gamsberg mine. The respondent was also a mining contractor on the
Gamsberg mine prior to the granting of the said spoliation order.
[ 4] A dispute between the respondent and the second applicant relating to the
respondent's overall performance developed prior to the respondent being
despoi led of the relevant mining area. On the respondent's version, it was
4
despoiled of the relevant mining area when the seco nd app licant ordered
the first applicant to conduct mining activities on a portion of the relevant
mmmgarea.
[5] In short, in the spoliation judgment, I held that the responde nt had the
necessary physical and mental elements requ ired to possess the relevant
portion of the mine for the purposes of the mandamenl van spolie. The
aforesa id, 1 held, was esta blished by virtue of the respo ndent's
responsibilities under the mining contract with the second applicant itself,
taken together w ith certain stat utory obligations imposed on the
respo ndent's statut orily appointed officer /s on the Gamsberg mine.
[6] That prior to being despo iled and on the termination of the minin g contract
between them, on the vers ion of the termina tion put forward by the
respondent , its intention to possess the said mining area had changed. Such
possession was no longer intended for the respondent to fulfil its
obligations under the said mining contract taken together with the statutory
obligations of its office r/s mentioned above. Instead , the possession of the
relevant minin g area was intended to assert both a debtor-and-creditor lien
as well as an enrichment lien.
[7] All these issues have been raised , in one form or another, as potentia l
grounds of appeal.
[8] At this point , it is necessary to mention the status and standi ng of the first
applicant. As already mentioned , the first applicant was a mining contractor
at the Gamsberg mine. The first applicant is part of a group of companies
known as the 'Moo I mans Gro up'. Effective from 1 Apr il 2025 , the minin g
contract with the second applica nt was taken over by another corporate
5
entity m the Moolman ' s Group, namely Moolmans S.A. In these
circumstances , I hold that the first applicant has legal standin g in this
application for leave to appeal by virtue of the order I made aga inst it on I
November 2024. At this point , the relevant court order against it still
stands. I believe the first applicant has an interest in pursuing an appea l
beyond merely involving costs and in that sense the matter is not moot.
[9] The first applicant filed a Notice of Applicat ion for Leave to Appeal dated
2 Nove mber 2024. Subsequently , the first appl icant filed a supplementary
notice in its App licatio n for Leave to Appeal , adding to its grounds for
appeal. The said supplem entary notice is dated 5 November 2025 . The
grounds of appeal raised by the first applicant in both Notices of
App lication for Leave to Appeal are as follows:
9.1. The court erred by finding that the respondent (Tau) was in peaceful
and undisturbed possessio n of the minin g area;
9.2. The ' mining area ' (as defined in annexure "FA4'') was not a
suffic ient point of reference to define the territorial extent of the
order;
9.3. The order relates to an area (be ing the ' mining area ', as define d in
annexure "FA4 .. ) wh ich is unjustifi ably large;
9.4. The court erred by failing to exercise its discretion aga inst gra nting
spoliatory relief;
9.5. The spoliatory relief gra nted is fundamentall y inconsistent with the
Mineral and Petroleum Resources Developm ent Act 1 (MPRDA);
9.6. The order unjustifiably grants the respondent (Tau) exc lusive
possessio n of the mining area; and
I 28 Of2QQ2.
6
9.7. The court failed to deal appropriately with the respondent's (Tau's)
abuse of the urgent proceed ings.
[1 OJ The second applicant filed a Notice of Applicat ion for Leave to Appeal on
1 November 2024. The grounds of appeal advanced in the said notice are
as follows:
I 0.1. The court erred in the manner in which it dealt with urgency and in
particular , erred by enrolling the matter and granting an order in
circumstances where it ought to have either dismissed the matter for
lack of urgency, alternatively ought to have struck the matter off the
roll for lack of urgency;
I 0.2. The court erred in findin g that the respondent had been in peacefu l
and undisturbed possession of the relevant ' mining area ' in the sense
required for the respondent to qualify for spoliat ory relief;
10.3. The court erred in not finding that in effect, the respondent sought
enforcement of a contractua l right of access , which is not protected
by the mandament van spo/ie;
I 0.4. The court erred, having regard to the contractual relationship
betwee n the second applicant and the respondent , in finding that the
respondent had been despoiled ;
10.5. The court erred in fai ling to find that the respondent had abandoned
the 'mining area' ;
10.6. The court erred in granting the order in circumstances that firstly,
exceeded the bounds of the relief contemp lated in a mandament van
spolie and secondly, constituted unworkable, impractical and
unattainable relief incapable of being impleme nted and/or enforce d;
10.7. The court erred in finding that the respondent enjoyed any right to a
lien where the requirement s necessary to establish such right had not
been estab lished by the respondent ;
7
10.8. The court erred in failing to exercise its d iscretion against granting
the spol iatory relief in circumstances where both the first and seco nd
applicants herein set out the prejudice they wou ld suffer in their
respective answering affidavits in the spoliation application ; and
10.9. The court erred in granting interdictory relief in respect of the first
applicant herein in circumstances where the respondent herein
disavowed such relief in its replying affidavit , which relief also fell
outside the ambit of the mandament van spolie and which in any
event was not urgent.
[ 11] The test of what needs to be esta blished in order to be grante d the necessary
leave to appeal is now set out in section 17( I) of the Superior Courts Act, 2
the relevant provisions of which read as follow s:
•• 17( I) Leave to appeal may only be given where the judge or judges concerned are of
the opinion that-
(a) (i) the appeal wou ld have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be
heard, including conflicting judgments on the matter under
consideration;
(b) The decision sought on appeal does not fall with in the ambit of s
I 6{2)(a); and .. ."'
[12] On the face of it and on the wording of the said section of the Superior
Courts Act as quoted above , the requirement for granting leave to appeal is
thus more str ingent than was prev ious ly required. This is in fact what
Bertelsmann J he ld in the case of Mont Chevaux Trust v Tina Goosen and
Others 3. Berte lsmann J held that the test now is not whether another court
might come to a different conclusion, but in using the word 'wou ld' in the
said section of the Superior Courts Act, the test now is that there is a
2 10of2013.
3 2014 JDR 2325 (LCC) para 6.
8
measure of certainty that another court will reach a different conclusion to
the court of first instance.
(13] Having regard to the change from 'could' to 'would' as is apparent in
section 17( 1 )(a)(i) of the Act, there existed some differing approaches on
how ' reasonable prospects of success' would be determined. Such
controversy as might have existed appears to have been settled in the case
of Ramakatsa and Others v African National Congress and Another,4
where Dlodlo JA set out the position as follows:
" ... The test for reasonable prospects of success postulates a dispassionate decision
based on the facts and the law that a court of appeal could reasonab ly arrive at a
conc lusion different to that of the tria l court. In other words, the appe llants in this matter
need to convince this Cou rt on proper grounds that they have prospects of success on
appea l. Those prospects of success must not be remote, but there must exist a reasonab le
chance of succeeding. A sound rational basis for the concl usion that there are prospects
of success must be shown to exist. "5 (References omitted.)
( 14] As can be seen from the grounds of appeal set out above, there is a degree
of overlap between the grounds pursued by the first and second applicants.
In such instances, I shall only deal with the relevant topic once and will
refer to the arguments raised by the respective counsel to the extent that
this is required.
[15] Mr Hollander, who appeared for the respondent , in his supplementary
heads of argument , raised the issue of the appeal being moot in relation to
the first applicant. He makes this submission on the basis that the first
applicant disclosed in its further affidav it that it is no longer contracted to
4 (Case No: 724/2019) [2021] ZASCA 3 I (3 I March 2021 ).
s Supra para I 0.
9
mine at the Gamsberg mine , but that a related entity called Moolm ans S.A.
has now entered into a contract with the second applica nt. On these facts
Mr Hollander sought to invoke sect ion 17(l )(b) and section 16(2)(a)( i) of
the Superior Courts Act on the basis that the first applicant no longer has
an interest in the application for leave to appeal and that insofa r as the first
appl icant is concerned , any appea l wi ll no longer have a practical effect.
[ 16] On the facts of this case, I made an order grant ing spoliatory relief against
the first applic ant in the spoliation app licatio n. Despite the fact that the first
applicant is no longer a minin g contractor on the Gamsberg mine, due to
the nature of the proceedings and the order I made aga inst the first
applican t, I believe it has an interest in pursuing leave to appea l. Further , I
believe it has the legal stand ing to do so by virtue of the order I made
aga inst it.
[17] In dea ling with each of these grounds set out as a bas is for leave to appeal,
I believe that it would be convenie nt to set out and dispose of those grounds
where I believe that there are clearly no reasonable gro unds for granting
leave to appeal.
[18] The seco nd ground of appea l set out by the first applicant is to the effect
that the 'mini ng area· as defined in annexu re ·'FA4'. was not a suffic ient
point of reference lo define the territoria I exte nt of the order. On this issue,
I bel ieve that the red line delineated on annex ure ·'FA4., suffic iently defines
the territorial effect of the order concerned. I do not believe that a rational
basis has been set out on this point to show that another court could come
lo a different conclusion.
10
[19] Turning now to ground five raised by the second applicant. This involves
the argument that the respondent had abandoned the relevant mining area.
This was premised on the respondent removing its employees from the
mining area. In and of itself, removing employees from the mining area,
without more, does not necessarily mean that the respondent had given up
such possession of the relevant mining area that it might have. Taken in
conjunction with other factors such as the disputes turning around how and
when the contract concerned was terminated and the respondent 's assertion
of the lien, I cannot find that the second applicant has reasonable prospects
of persuading another court to come to a different conclusion on this
ground of appeal.
[20] Turning to the second applicant's seventh ground for leave to appeal, where
the second applicant contends that the court erred in finding that the
respondent was entitled to a lien in circumstances where it had failed to
establish such lien. In the spoliation application, I never determined or
found that the respondent was entitled to a lien. I was not called upon to
make such a finding in the spoliation application.
[21] The date and manner that the relevant mining contrac t between the second
applicant and the respondent terminated was disputed. However, all agreed
that such contract had been term inated prior to the spoliation application.
In these circumstances , I referred to the lien that the respondent asserted
only to demonstrate that the respondent had established a different reason
as the basis for the mental element of possession after the contract had
terminated, and before instituting the spoliat ion application.
11
[22] Accordingly, the second applicant's seventh ground of appeal has no
reasonable prospects of succeeding and leave to appeal on this ground is
refused.
[23] The second applicant's ninth ground of appeal is to the effect that the court
erred in granting relief in respect of the first applicant because the
respondent had disavowed such relief in its replying affidav it in the
spoliation application. In my view, the second applicant has taken the
relevant passage of the respondent 's replying affidav it out of context. I do
not believe that there is a reasonable prospect that another court would
come to a different conclus ion on this ground of appeal. Accordingly , on
this ground , leave to appeal is refused.
[24] The first appl icant 's first ground of appeal is to the effect that the
respondent had not established the peaceful and undisturbed possession
required to seek spoliatory relief in respect of the relevant mining area.
This overlaps with the second applicant's second ground of appeal. Ms
Cane SC, who appeared for the first applicant herein, whilst not
abandoning this ground of appeal, concentrated her efforts elsewhere. It
seemed that there had been a division of labour between her and Mr La
Grange SC. Mr La Grange appeared for the second applicant , he analysed
the authorities on the nature of the possession required and how such
possession would be established.
[25] The question posed by Mr La Grange is, was the possession the respondent
may have had. both peacefol. undisturbed and to the exclusion of others at
the material time? This is a factual enquiry. On this question , both the first
and second applicants have set up a rational basis to argue that another
court could reasonably come to a different conclusion. In the
12
circumstances , and after reconsidering the facts set out in the spoliation
app lication, I find that another court could reasonably come to a different
conclusion on this issue. Accordingly, both the first and second applicants
are granted leave to appeal on this ground.
[26] The first applicant's third grou nd of appeal is to the effect that the order in
terms of the mining area as defined by annexure "FA4" is unjustifiably
large. In respect of this groun d of appeal, I was referred to annexure
"AA40" to the answering affidavit. This annexure is another aerial
photograph of the same area as annexure "FA4" , it has the same thick red
line overlaid on the photograph as the one portrayed on annexur e "FA4".
However , within the thick red line, there are five pockets delineated by a
thin red line, and in the answering affidavit , it is contended that the
respondent was only in possession of these five pockets. This was not
effectively rebutted in reply. Accordingly , on these facts, the first applicant
has establ ished a rationa l basis for assert ing that another court might come
to a different conclus ion. According ly, I find that the first applicant should
be granted leave to appeal on this ground as well.
[27] The first applicant's fourth ground of appeal is to the effect that the court
erred in failing to exerc ise its discretion against granti ng spoliatory relief.
This ground of appeal is also pursued by the second app licant as its eighth
ground of appeal. I interpreted the discretion I had very narrow ly. After
reconsidering the facts, it is poss ible that another court might find that I
interpreted such discretion too narrow ly or failed to exercise it for the
wrong reason. In these circumstances, I believe it is reasonab ly possible
that another court might reach a different conclusion. Accord ingly, leave to
appeal ought to be granted on this ground as well.
13
[28] The first applicant's fifth ground of appea l is to the effect that the spoliatory
relief granted is fundamentally at odds with the prov isions of the MPRDA.
Ms Cane referred this court to section 54(7) of the MPRDA. Ms Cane 's
submission was that the underlying debts upon which the respo ndent
asserted its liens had to be dealt with under the process envisioned by
section 54 of the MPRDA before it could assert its common law right to a
lien and the subsequent common law right to spoliatory relief. Ms Cane
urged me to have regar d to section 4(2) of the MPRDA when assessing this
argument.
[29] Mr Hollander , for the respondent, argued that the first applicant had not
pleaded section 54 of the MPRDA in the papers that comprise the
spoliation app lication. I do not believe that this is a bar to raising the issue
in the present circumstances. Mr Hollander also argued that a lien was not
a right as contemplated by section 54 of the MPRDA. It may well be that
a lien is not a right contemplated by section 54 of the MPRDA , but Ms
Cane 's argument relates to the underlying debt that gives rise to the lien.
[30] In my view Ms Cane 's argument forms a rationa l basis to conclude that
another court might reasonab ly come to a different conclus ion on whether
a spoliation order was appropriate and allowed in the circumstances.
Accordingly , the first applicant will be granted leave to appeal on this
ground as well.
[31] The first applicant 's sixth ground of appeal is to the effect that the order
granted in the spoliation judgment unjustifiab ly grants the respondent
exclusive contro l over the relevant mining area. This ground of appea l
overlaps with the second applicant's sixth ground of appeal. Although the
14
second applicant's sixth ground of appea l goes a little further, it 1s
conve nient to cons ider them together.
[32] The argument made by the app licants in respect of this gro und is that under
the provis ions of the contract that had existed between the second applicant
and the respondent, read together with the MPRDA , the respondent was
never entitled to exclusive possess ion of the relevant mining area.
[33] Furthennore, in tenns of the mining licence issued to the second applicant ,
the second applicant had to carry out mining in accor dance with the mining
work programme. It was demonstrated that the mining work programme
formed part of the mining licence. Further that the second applicant could
not simply mine another area of the mine because it would be in breach of
its mining licence. There was also a financial aspec t to this argument that
went as follows: Different areas of the mine were developed in a sequence
so as to ensure a steady supply of ore to the process ing plant; that this
steady supply of ore to the processing plant ensured the necessary cash
flow to keep the second applicant's mine on a sound financial footing; and
that any unplanned change to the mining work programme put the mining
licence at risk under the provisions of the MPRDA as well as creating
unnecessary financia l risk to the second app licant by putting its cash flow
at risk.
[34] Cons idering all the aspects set out above , I believe the applicants should
be granted leave to appeal on the grounds set out in the first app licant's
sixth ground of appeal as well as the second applicant's sixth ground of
appeal.
15
[35] The first applicant 's seventh ground of appea l overlaps with the second
applicant 's first ground of appea l. These grounds of appeal are to the effect
that, on the question of urgency, I dealt with the application in an
inappropriate manner. Although I exercised a discretion on this question ,
another court might reasonably conclude that I exercised such discretion
for an inappropr iate reason given the circumstances. Accordingly , I grant
leave to appeal to the applica nts on this ground as well.
(36] This leaves the second applicant's third and fourth grounds of appeal that
still need to be considered.
[37] The second applicant 's third and fourth grounds of appea l overlap and are
to the effect that: Third, the court erred in not finding that in effect the
respondent sought enforcement of a contractual right of access, which is
not protected by the mandament van spolie ; Fourth , the court erred, having
regard to the contractual relationship between the second appl icant and the
respondent , in finding that the respondent had been despoi led.
[38] In respect of these grounds Mr La Grange submitted that under the
provisio ns of the contract between the respondent and the second applicant ,
the second applicant retained ultimate responsibility in terms of the
provisions of the MPRDA. That the respondent 's statutori ly appointed
officers under the MPRDA were subserv ient both in respect of their
authority and obligations to the statutory officers of the second applicant.
[391 Mr La Grange further argued that the contractual provisions relating to
payment for the work done and the dispute resolution provisions precluded
the situation where the respondent could claim either a debtor-a nd-creditor
lien and an enrichment lien. Considering these provisions in the contract , I
16
believe there are reasonable prospects that a different court could come to
a different conclusion. Accordingly , leave will be granted to the second
appl icant to appeal on both the third and the fourth grounds for appeal set
out herein.
[40] The court to which the appeal is to be directed is governed by the
provisions of section l 7(6)(a)(i) and (ii) of the Superior Courts Act. These
provisions provide that when important questions of law are at play or that
the administration of justice requires it, the matter should be referred to the
Supreme Court of Appea l (SCA). Further that, in other cases where the
court of first instance is a single judge, the matter should be referred to the
full court of the division concerned.
[41] Amongst the issues raised by the applicants is the issue of the provisions
of the MPRDA being fundamentally at odds with the common law relief
provided by a mandament van spolie. The issues involved in this ground
of appeal involve important issues of law which should be referred to the
SCA. The issue of when and how the discretion not to grant a spoliation
order is also one of importance and it is also in the interests of justice ,
generally, that the SCA should consider this question. Accordingly , leave
is granted to the applicants to appeal to the SCA.
[42] In the circumstances the following order is made:
1. The first applicant is granted leave to appeal to the Supreme Court of
Appeal on the grounds set out in the first, th ird, fourth, fifth, sixth and
seventh grounds pursued by it as set out in this judgment.
2. The first applicant is refused leave to appeal on the second ground of
appeal it pursued as set out in this judgment.
17
3. The second applic ant is granted leave to appeal to the Supreme Court
of Appeal on the grounds set out in its first, second, third, fourth, sixth
and eighth grounds of appeal pursued by it as set out in this judgme nt.
4. The second applicant is refused leave to appeal on the fifth, seventh
and ninth grounds of appea l it pursued as set out in this judgm ent.
5. The costs in relation to this application for leave to appeal are to be
costs in the appea l.
Appearances
For JS1 applicant:
Instructed by:
For 2nd applicant:
Instructed by:
For responde nt:
Instruc ted by:
((
L.G. LEVER
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION , KIMBERLEY
Adv Cane (SC), Adv Schafer & Adv Ndlovu
Duncan & Rothma n Inc.
Adv WG La Grange (SC) & Adv DS Hodge
Duncan & Rothman Inc.
Adv L Hollander & Adv J Harmse
Van De Wall Inc.