IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Case Number: 2026-028582
In the matter between:
LOKOMOTIC (PTY) LTD First Applicant
MOLOKO CLIFFORD MOKOENA Second Applicant
and
LEKWA-TEEMANE LOCAL MUNICIPALITY First Respondent
THOBILE M BUILDING
CONSTRUCTION (PTY) LTD Second Respondent
SHERIFF OF THE COURT FOR THE
DISTRICT OF CHRISTIANA Third Respondent
STATION COMMANDER,
CHRISTIANA POLICE STATION,
NORTH WEST:
SOUTH AFRICAN POLICE SERVICES Fourth Respondent
Coram: Petersen ADJP
Heard: 03 March 2026
Judgment reserved: 03 March 2026
Delivered: This judgment was handed down electronically, circulated to the
applicant’s legal representative and the second respondent via email , and
uploaded to CaseLines and released to Saflii. The date and time for the handing
down of the judgment are deemed to be 10h00 on 04 March 2026.
Summary: Application for leave to appeal — Civil Procedure — Superior Courts
Act 10 of 2013 — application to appeal final relief granted for rei vindicatio —
Applicants challenged attribution of conduct, non- joinder of a necessary party,
and the granting of final relief on alleged disputed facts — attribution of unlawful
conduct (erecting a fence) supported by direct evidence of an independent
contractor despite bare denials by applicants — non-joinder of Department of
Education legally untenable as a town planning designation does not confer
ownership or possessory rights necessary for rei vindicatio proceedings —
rejection of applicants’ version justified under exceptions to the Plascon-Evans
rule where denials are demonstrably untenable or contradicted by credible
evidence — conduct of applicants deemed a ‘textbook example of self-help’ —
self-help is inimical to the rule of law and warrants judicial disapproval —
punitive costs originally awarded based on mala fide conduct, including
contemptuous WhatsApp communications toward legal representatives and
advancing false versions under oath — application for leave to appeal dismissed
for lack of reasonable prospects of success under s 17(1)(a)(i) of the Superior
Courts Act — costs of the application awarded to respondent on party-and-party
scale (Scale C).
________________________________________________________________
JUDGMENT IN THE APPLICATION FOR LEA VE TO APPEAL
________________________________________________________________
Petersen ADJP
Introduction
[1] This is an application for leave to appeal against the whole of my judgment
and order handed down on 17 February 2026. The applicants, who were the first
and second respondents in the main application, appear in person. The respondent
opposes the application of the Lekwa -Teemane Local Municipality (the
Municipality).
[2] In the main judgment, I granted final relief to the Municipality, finding that
the respondents had acted unlawfully by dispossessing it of its property through
acts of self-help.
The test for leave to appeal
[3] The application is governed by s 17(1) of the Superior Courts Act 10 of 2013,
which provides that leave to appeal may only be given where the judge is 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;…’
[4] It is now trite that this test is more stringent than the previous test of
‘reasonable prospects that another court might come to a different conclusion. ’
The applicant must satisfy the court that there is a sound, rational basis for the
conclusion that there are prospects of success. A mere possibility of success, or
that the case is arguable, is insufficient.1
[5] I must therefore apply a ‘ dispassionate decision, based on the facts and the
law, that a court of appeal could reasonably arrive at a conclusion different from
that of the trial court.
2
The grounds of appeal
[6] The applicants’ application for leave to appeal sets out several grounds. I will
address each of the material grounds in light of the findings in the main judgment.
Ground 1: Attribution of Conduct
[7] The applicants argue that the court erred in finding that they erected the
fencing, despite their denials and the absence of direct evidence linking them to
it. The record contradicts this submission. In the main judgment, I found that the
respondents’ version consisted of bare denials, which did not create a genuine
dispute of fact. I held that, on a holistic consideration of the papers, ‘there is no
real or material dispute on any facts about the rei vindicatio.
[8] This finding was based on the totality of the evidence, including the
confirmatory affidavit of Mr Moseswa and the affidavit of Mr Aobakwe Polori,
1 The Mont Chevaux Trust v Tina Goosen 2014 JDR 2325 (LCC); S v Smith 2012 (1) SACR 576 (SCA)
at para 7.
2 S v Smith supra.
which was placed before me in the replying papers. Mr. Polori stated under oath
that he was personally engaged and paid by the second applicant, Mr. Mokoena,
to erect the fence. In light of this evidence, the respondents’ denials were
insufficient to raise a triable issue. An appeal on this ground does not have
reasonable prospects of success.
Ground 2: Non-Joinder of a Necessary Party
[9] The applicants contend that the Department of Education was a necessary
party and should have been joined, based on the view that the land is intended for
a school. This ground is legally untenable. The cause of action was the rei
vindicatio. The only parties necessary for its proper adjudication are the owner ,
the Municipality, and the person in possession, the respondents.
3 In the main
judgment, I noted that the respondents had produced ‘no evidence of a legal right
to the property that would justify their blockade. ’ The Department of Education
has no legal interest in the ownership of the land. A town planning designation
does not confer a right of ownership or possession. This ground has no reasonable
prospects of success.
Ground 3: Final Relief on Disputed Facts
[10] The applicants argue that final relief was granted in the motion proceedings
despite genuine factual disputes. This argument overlooks the established
exceptions to the Plascon -Evans rule, which I appreciate that the second
respondent, as a lay person, is not acquainted with . In the main judgment, I
considered this rule and noted that a court is entitled to reject a respondent’ s
version where it consists of bare denials or is demonstrably untenable.
3 Chetty v Naidoo 1974 (3) SA 13 (A).
[11] I found that the respondents’ version fell into this category. Their denial was
contradicted by the direct evidence of Mr. Polori, which the Court accepted .
Consequently, there was no genuine dispute of fact requiring referral to oral
evidence or trial. In my view, the matter was correctly decided on the papers.
Grounds 4, 5, 6, and 7: Spoliation, Plascon -Evans, Overbroad Relief, and
Punitive Costs
[12] The remaining grounds are similarly without merit. The relief granted was
intended to remedy the respondents’ unlawful conduct and prevent its recurrence.
It was not overbroad. The essence of the relief was the removal of the fence and
padlocks and the restoration of the status quo ante before the erection of the fence.
The applicants elected to vigorously oppose this relief, being sidetracked by what
appears to be an alleged history of political score -settling with some of the
dramatis personae in the application. As indicated to the second applicant, this
Court cannot become embroiled in those issues, which the second applicant can
seek to vindicate through legal remedies that he may be advised are at his
disposal. This Court, as in the main application, is constrained to the papers in
this application.
[13] Regarding punitive costs, the award was considered and reasoned in the main
judgment. The applicants contend that I erred in awarding costs on an attorney -
and-own-client punitive scale in the absence of mala fides, dishonesty, or
unlawful self -help on their part. This complaint, in essence, is that they were
wrongly punished for conduct they did not commit.
[14] The factual premise of this ground of appeal is fundamentally flawed. In the
main judgment, I made specific factual findings about the respondent's conduct
which directly informed the costs order. I, in fact , contrary to the second
applicant's protestations that he has not resorted to self -help, held that the
applicants’ conduct amounted to self-help.
[15] I further noted that their response to the respondent’s attorney demonstrated
a lack of regard for the legal process and that such conduct warranted a mark of
disapproval from the Court. The Constitutional Court in Public Protector v South
African Reserve Bank
4 confirmed that punitive costs are appropriate in certain
circumstances. This ground does not have reasonable prospects of success.
[16] It is apposite to restate the aforesaid findings, as amply supported by the
record which was placed before me. I held that the applicants’ conduct was a
‘textbook example of self-help, which the law abhors’. This finding was based on
the undisputed facts that the applicants, without any legal right, physically took
possession of the Municipality’ s property by erecting a fence and padlocks,
thereby excluding the lawful contractor. The Constitutional Court's decision
in Chief Lesapo v North West Agricultural Bank5 was cited to make it clear that
self-help is inimical to the rule of law and cannot be countenanced. The act of
self-help alone is a serious wrongdoing that a court is entitled to mark its
disapproval of through a costs order.
[17] I further noted that the applicants’ WhatsApp response to the respondents’
applicant’s attorney demonstrated a lack of appreciation for the legal process. The
founding affidavit attached screenshots of a WhatsApp exchange in which the
second Applicant, Mr. Mokoena, responded to the Municipality’ s letter of
demand with messages stating ‘Mxm ’, ‘Go to hell ’, and ‘I am busy drinking
alcohol, I don't have time for FIFA ’. This was not the conduct of a person
4 Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC).
5 Chief Lesapo v North West Agricultural Bank 2000 (1) SA 409 (CC).
genuinely seeking to resolve a dispute, but rather a display of contempt for the
legal process and for the Municipality ’s attempt to resolve the matter without
litigation. This is precisely the vexatious and mala fide conduct that courts have
historically sanctioned with a punitive costs order.
[18] The applicants' demonstrably false denials further justified the award of
punitive costs. As detailed in response to Ground 1, the applicants’ version that
they had no involvement in the fencing was a n untruth, completely contradicted
by the affidavit of Mr. Polori, an independent witness whom the second applicant
had personally hired and paid to erect the fence. The second applicant in the
argument before me made the point that people ‘lie’ in affidavits daily, to the
exclusion of himself in this matt er. Yet the second applicant, with evidence on
oath adduced by the respondent, could not gainsay that evidence with cogent
evidence. A litigant who advances a false version under oath and persists in it not
only fails to create a genuine dispute of fact but also engages in conduct that is
an abuse of the court process.
[19] The applicants’ complaint that they were wrongly punished for conduct they
did not commit is directly contradicted by Mr. Polori's evidence . The factual
finding that the second applicant was the architect of this unlawful scheme is the
very foundation of the costs order. An appeal court would not, on this record, be
able to interfere with that finding.
[20] This ground of appeal, therefore, has no reasonable prospect of success.
Conclusion
[21] The applicants have failed to satisfy the test in s 17(1)(a)(i) of the Superior
Courts Act. They have not demonstrated that an appeal would have a reasonable
prospect of success. The evidence supported the factual findings, and, in my view,
the law was correctly applied.
Costs
[22] The Municipality has succeeded in opposing this application. The general
rule is that costs follow the result. Unlike my order in the application under s
18(3) of the Superior Courts Act, where I exercised my discretion in favour of the
applicants by ordering no costs, this application is different. There is no reason to
depart from the general rule. The application for leave to appeal is without merit,
and a cost order in favour of the Municipality is justified.
Order
[23] In the result, I make the following order:
1. The application for leave to appeal is dismissed.
2. The applicants are ordered to pay the costs of this application on a party
party scale (Scale C), jointly and severally, the one paying the other to be
absolved.
AH PETERSEN
ACTING DEPUTY JUDGE PRESIDENT OF THE IDGH COURT
NORTH WEST DIVISION, MAHIKENG
Appearances:
For the First and Second
Applicants: In Person
For the First Respondent: Adv S M Tisane
Instructed by: Zisiwe Attorneys
Mahikeng