IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU - NATAL DIVISION
PIETERMARITZBURG
Before: Honourable Ncube J
Head on: 11 August 2025
Delivered on:
DELETE WHICHEVER IS NOT APPLICABLE
1. REPORTABLE: ~O
2. OF INTEREST TO OTHER JUDGES:
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3. REVI rl"'Y'="" 1
-C> 3/P:y'2 __ _
In the matter between
SNOWY OWL PROPERTIES
and
MZIKI SHAREBLOCK (PTY) L TO
NORM AN CELLJERS
DATE
CASE NO: 4234/2024
Applicant
1st Respondent
2nd Respondent
Order
1. Leave to Appeal to the Supreme Court of South Africa is granted.
2. Costs to be costs on appeal.
Ncube J
Introduction
JUDGMENT: LEAVE TO APPEAL
[1] This is an application for leave to appeal. The applicant("Snowy Owl") seeks leave to
appeal to the Supreme Court of Appeal ("SCA") alternatively to the Full Court of the Kwazulu
Natal Division against the whole of the judgment and order of this court handed down on 19
March 2025, dismissing the application for the Respondents ("Mziki and Celliers") to be held
in contempt of the order of the SCA handed down on 31 March 2023. Snowy Owl also sought
the imposition of a sentence of six (6) months imprisonment , against the second Respondent
("Mr Celliers").
Background Facts
[2] Fagolweni No 16156 is a farm ("the farmn) situated in the Umkhanyakude District
Municipality in Hluhluwe in the Northern part of the KwaZulu Natal. Snowy Owl is the owner
of portion 5 of the farm (Snowy Owl land). The First Respondent ("Mziki") is the owner of
subdivision 1 of the farm ("Mziki's land"). Snowy Owl and Mziki entered into a Servitude
Agreement , ("the servitude") with regard to their respective lands. The Servitude was
registered in the Deeds Office under No K1287 /90 on 27 November 1990. It is registered in
favour of Mziki. Therefore , Snowy Owl's rights of ownership in its land are limited to the extent
allowed by the Servitude in favour of Mziki.
[3] The Servitude Agreement gave both Snowy Owl and Mziki reciprocal rights to traverse
each other's land for purposes of viewing wild game. In terms of the Agreement in case Mziki,
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and its members want to traverse Snowy Owl's land between the hours of sunset and sunrise,
they have to obtain consent from either Snowy Owl or its duly authorized representatives.
On 29 May 2015, Snowy Owl brought an interdict application against Mziki alleging that Mziki
had traversed on Snowy Owl land after sunset and before sunrite in disregard for the
provision of their Servitude Agreement. The interdict application was heard and dismissed by
my Sister Justice Steyn. Snowy Owl applied for Leave to Appeal which was granted to the
Full Court of this Division.
[4] On 24 May 2019, the Full Court of this Division upheld Snowy Owl's appeal. On 30 July
2019, Epstein- SC handed down his award in an arbitration between Snowy Owl and Mziki.
The purpose of the arbitration was to determine the nature and scope of Mziki's rights under
the Servitude in so far as off-road driving, picnicking and the use of structures on the servient
land were concerned. During the months of August and September 2019, vehicles owned by
Mziki traversed Snowy Owl land after sunset in contravention of the terms of the Servitude
and in disregard of the Order of the Full Court. Consequently Snowy Owl brought the
contempt application against Mziki. The application was dismissed by the High Court on the
basis that Snowy Owl failed to identify the individual driver of the vehicle traversing its land
after sunset. Snowy appealed the Order dismissing its contempt application, to the SCA. The
appeal was upheld by the SCA.
[5] Mziki launched an application to appeal to the Constitutional Court against the Judgement
and Order of the SCA. The Constitutional Court found that there was no reasonable prospect
of success on appeal and accordingly dismissed the application with costs.
The Supreme Court Order.
[6] The Order of the SCA reads:
"1. The appeal succeeds
2. The order of the High Court is set aside and replaced by the following:
'(a.) The first and second respondents are found to be in contempt of the
'(a.) The first and second respondents are found to be in contempt of the
Order granted by the full court of the KwaZulu Natal
Division of the High Court, Pietermaritzburg on 24 May 2019.
(b.) The First and Second respondents shall within 30 days of the date
of this order:
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Issues
(.) Take such steps as may be necessary to introduce rules to I.
prevent the second respondent and its members, and all persons
who derive any right, privilege or title through the second
respondent from contravening the order above in paragraph (a).
(ii.) Take such steps as may be necessary to ensure compliance with
the rules so made.
(c.) the First and Second respondents together with the members of the
Second Respondent and all persons who derive any right, privilege
or title through the second respondent shall not engage in any
conduct, which have the effect of non-compliance with the order in
paragraph (a)
(d.) The First and Second respondents to pay the costs of the application
in the High Court, jointly and severally, the one paying the other to
be absolved. Such costs to be paid on Attorney and Client scale.
3. The First and Second Respondents to pay the costs of the appeal including
the application for leave to appeal in the High Court jointly and severally, the
one paying the other to be absolved. Such costs to be paid on Attorney and
Client scale."
[7] The existence and service of the SCA Order were not in dispute before this court. What
was in dispute was whether Mziki and Mr Celliers had complied with the SCA order by
introducing rules preventing a contravention of the order of the Full Court and whether they
had taken steps to ensure compliance with such rules. This court found that the Respondents
were not in wilful and mala fide disobedience of the order of both the SCA and the Full Court.
This court found that the actions taken by Respondents were incompatible with a deliberate
and intentional disregard of court orders.
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Principles on Application for Leave to Appeal
[8 ] The starting point of exercise is section 17 of the Superior Courts Act
1
which provides:
"17 Leave to appeal
(1) Leave to appeal may only be given where the judge or judges
concerned are of the opinion that --- ------
( a) (i) the appeal would 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 within the ambit of section
16(2)(a); and;
(c) where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to a just and prompt
resolution of the real issues between the parties "
[9] Commenting on the aspect of reasonable prospect of success, In MEG Health Eastern
Cape v Mkhitha2 Schippers AJA (as he then was), expressed himself in the following terms:
" An applicant for leave to appeal must convince this court on proper grounds
that there is a reasonable prospect or realistic chance of success on appeal. A
mere possibility of success, an arguable case or one that is not hopeless, is not
enough. There must be sound rational basis to conclude that there is
reasonable prospect of success on appeal. "
[1 O] In Smith v S3 Plasket JA said the following :
1 Act10of2013
2 (1221/2015) (2016) ZASCA 176 ( 25 November2016 ) Para 17
3 2012 (1) SACR 567 (SCA) para 7
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"What the test of reasonable prospect of success postulates is a dispassionate
decision based on the facts and the law that a court of appeal could reasonably
arrive at a conclusion different to that of the trial court. In order to succeed
therefore, the appellant must convince this court on proper grounds that he has
prospects of success on appeal and that those prospects are not remote, but
have a realistic chance of succeeding.'
[11] In the past, the test applied by courts in the determination of an application for leave
to appeal, was whether there was a reasonable prospect that another court may come to a
different conclusion to the one reached by the the court a quo4. With the coming into
operation of section 17 above, the threshold to grant leave to appeal has been raised. In
Mont Chevaux Trust v Tina Goosen and 18 Others5, it was held:
"It is clear that the threshold for granting leave to appeal against the judgment
of a High Court has been raised in the new Act. The former test whether leave
to appeal should be granted was a reasonable prospect that another court
might come at a different conclusion see Van Heerden v Cronwright and Others
1985(2) SA 342 (T) at 343 H. The use of the word 'would' in the new statute
indicates a measure of certainty that another court will differ from the court
whose judgment is sought to be appealed against. This new standard is applied
by section 37(4)(b) of the Restitution of Land Rights Act 22 of 1994 to this
Court's duty to consider the prospects of an intended appeal"
[12] In Notshokovu v S6 it was said that an appellant faces a higher and stringent
threshold under the Superior Courts Act. Therefore, in terms of section 17 the
enquiry is not whether another court "may" come to a different conclusion, but
"would" indeed come to a different conclusion.
[13] In Four Wheel Drive CC v Leshni Rattan N07 Schippers JA expressed himself
4 Commissioner of Inland Revenue v Tuck 1989(4) SA 888(T) at 890-8
5 (LCC14R/2014) [2014) ZA LCC 20(3 November 2014)
5 (LCC14R/2014) [2014) ZA LCC 20(3 November 2014)
6 (157/15) [2016) ZASCA (7 September 2016)
7 2019(3) SA 451 (SCA) para 34
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in the following terms:
"There is a further principle that the court a quo seems to have overlooked
/eave to appeal should be granted only when there is a sound, rational basis
for the conclusion that there are prospects of success in appeal. In the light of
its finding that the plaintiff failed to prove locus standi or the conclusion of the
agreement, I do not think that there was reasonable prospect of an appeal to
this court succeeding or that there was a compelling reason to hear an appeal"
Grounds of Appeal
[14] The Applicant has listed six (6) grounds on which the application for leave to appeal is
based.
First Ground:
"Failure to properly Evaluate the Adequacy of Rules"
Introduction:
Under this ground the Applicant contends that this court failed to evaluate the rules as the
steps taken by Mziki and Celliers did not fulfil the SCA order. The Applicant contents that
Mziki and Celliers relied on old rules which had been in existence for decades. The SCA
ordered Mziki and Celliers to " introduce the rules to prevent " future contraventions of the
Full Court's order. The steps taken by Mziki and Celliers consisted in the calling of meetings.
At the meeting, they disseminated a memorandum and a code of conduct. In my view, the
problem is with the interpretation of the SCA order. What does it mean to "introduce the
rules"? The SCA order did not require Mziki and Celliers to make new rules but they had to
make the rules known to their members which is what they did at the meeting, Interpretation
remains a problem. People understand certain words and phrases differently. What stands
out in this case is that the existing rules were made known to people at the meeting.
Second Ground:
Disregarding the Full Court's Finding and Ambiguity on "sunset"
The Applicant contends that this court erred in disregarding the Full Court's definitive
interpretation of the terms "sunsets" and "sunrise" and that this court's judgment did not
meaningfully engage in with that issue.
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There was no need for this court to deal with the interpretation or the definition of those two
terms in a contempt of court application . In the Full Court hearing, Snowy abandoned the
application for the determinat ion of the precise times. Consequently , the Full Court did not
interpret those two terms . The argument in that regard is misplaced .
Th ird Ground
"Undermining Judicial Authority"
Snowy submits that this court undermined Judicial Authority by allowing Mziki and Celliers to
rely on the interpretation which was previously rejected. This ground is similar to the
second ground and it is not necessary to deal with it any further. Snowy contends further
that this court failed to draw inference of non compliance from the facts and that the non
compliance was wilful and ma/a fide. There was no proof that Mziki and Celliers were in
deliberate and intentional disregard of the SCA order. Therefore, there was no need to draw
inference . There must be proof beyond a reasonable doubt.
Fourth Ground
"Applicat ion of the Contempt Test and Burden of proof
Snowy contends that this court misdirected itself in the application of the legal test for a civil
contempt. I disagree . In paragraph 1 O of the judgment this court referred to the case of Fakie.
This court found in paragraph 17 that Mziki and Celliers genuinely believed that they were
entitled to act in the manner in which they acted. Under those circumstance , it cannot be said
that they deliberately and intentionally disobeyed the SCA order.
Fifth Ground
"Erroneous Application of the Criminal Standard"
The applicant argues that since a committal was sought against Mr Celliers a Criminal
standard of proof beyond a reasonable doubt was justifiable. That is correct. This court
correctly applied the test and referred to Matjhabeng Municipality v Eskom 2018(1) SA 1 (CC)
para 67.
Sixth Ground
"Misapplication of the Evidentiary Burden and Standard as to Celliers"
para 67.
Sixth Ground
"Misapplication of the Evidentiary Burden and Standard as to Celliers"
This ground overlaps with the previous ground. Snowy contends that even under the stricter
standard Celliers should have been found to be in contempt. This issue is fully dealt with in
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my judgment and nothing further is to be said on this point.
[15] The First ground of appeal is upheld. The second, third, fourth, fifth and sixth grounds
are dismissed.
Findings
[16] I find that there is no reasonable prospect of success on appeal. However, there is a
compelling reason why appeal should be heard in that the SCA will be asked to give the
correct interpretation of its order of 31 March 2023 and to determine if Mziki and Celliers
wilfully and ma/a fide breached that order.
Order
(17) In the result, I make the following order:
1. Leave to Appeal to the Supreme Court of South Africa is granted.
2. Costs to be costs on appeal.
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
KWAZULU - NAT AL DIVISION PIETERMARrTZBURG
Date of hearing: 11 August 2025
Date of judgment: 5 March 2026
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Appearances :
For Applicant: Adv RS Shepstone
Instructed by: Errol Goss Attorneys
Tatham Wilkes Inc.
Office F008, first floor
1 Montgomery Drive
PIETERMARITZBURG
For 1 sr Defendant: Adv Gavin Cooper
Instructed by: Cliffe Dekker Hofmeyr Inc.
295 Pietermar itzburg Street
PIETERMARITZBURG
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