THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MIDDELBURG (LOCAL SEAT)
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised: No
05 March 2026
SIGNATURE DATE
In the matter between :
EXCAVAR MINING(PTY) LTD
And
MWALIMU RESOURCES (PTY) LTD
LESO AJ,
INTRODUCTION
Case Number: 2026-03302 3
Applicant
Respondent
JUDGMENT
1. This application is brought as one of extreme agency and in the motion the
applicant seeks condonation for non-compliance with the rules relating to service filing
and time limits in the motion proceedings and that the matter should be dealt with as
one of agency in terms of rules 6(12).
2. Second relief the applicant six and order that the second and third respondents
as the responsible officials and the individuals of the first respondent be found to be in
contempt of the order made by this court on 27th February 2026.
3. The third relief sought by the applicant is that the second and the third
respondent be committed to imprisonment for contempt of court for the period of 30
days or such other. Quote me direct in that the warrant of arrest be authorized
committing the seco nd and the third respondents to imprisonment for contempt of
court for the period of 30 days
4. It is striped that in this the application of this nature the court must first test
whether the applicant has made out a case of agency that the court can condone
noncompliance with the court rules but however in this case the merits of the
application in as far as it relates to the contempt of court order sort s linked to the
agency.
5. The respondent opposed the application on the basis that it had found notice
of Appeal and a counter application that a notice of appeal or the court will declare
that a notice of appeal filed on 27th February 2026 stays the execution of the order.
6. I find that the counter application is necessary in the court will not deal with it
simply because the law is clear on the noting of leave to appeal or when the notice of
leave to appeal is filed. Section 18(1) he noting of an appeal generally automatically
stays (suspends) the execution of a court order pending the final outcome of the
appeal. This means the party who won the initial judgment cannot legally enforce it.
7. This finding goes straight to the heart of the reliefs sought by the applicant. The
relief sought is incompetent because the applicant ought not to enforce the order when
it received the notice of leave of appeal on 27 February 2026. The applicant has been
legally represented throughout the proceedings and other related proceeding in the
same case, they ought to have know what the status of the Order was or is. Under
Section 18(3) of the Superior Courts Act, a party wanting to execute immediately must
prove to the court that "exceptional circumstances" exist, this is not the case.
8. There are no facts clearly set out by the applicant why the second and third
respondent out to be found to be in contempt and be incarcerated on extreme urgency.
This s a frivolous application that warrants punitive costs order.
WHEREFOR THE FOLLOWING ORDER IS MADE:
ORDER
1. The application is dismissed.
2. Applicant to pay the cost of the respondent on attorney and client scale
Heard :
Delivered:
05 March 2026
05 March 2026
JT LESO
Acting Judge of the High Court,
Middleburg, Mpumalanga
( The judgment was handed down electronically by circulation to the parties'
representatives by email, by being uploaded to the Caselines system of the
Mpumalanga Division, Middleburg Local Seat)
APPEARENCES
For the Applicant
Attorneys Smith & Vosloo Attorneys
Contacts 082 785 5421
Email: admin@sv-law.co.za
Counsel for the Applicant Adv CJ MARNEWECK
Contact 071 143 5706
For the Respondents
Attorney Carl Van Zyl Attorney
Contact 013 282 5976
Email allysha@birmans.co.za
Counsel Adv Mokoena
Contact 083 251 9712
Email lebomokwena@counsel.co.za