IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO: 401/2023
In the matter between:
FUNDISW A MATIWANE 1st Applicant
SIKHOLO MBEDLE 2nd Applicant
THOBILE MADIKANE 3rd Applicant
ABONGILE MATIWANE 4th Applicant
VUTHA MBEDLE 5th Applicant
NTSINDISO MBATHU 6th Applicant
ZETHU MADIKANE 7th Applicant
ALICE MKHATSHANE 8th Applicant
MAYIBUYE LILA 9th Applicant
BULELANI MALIBA 10th Applicant
and
BISMARK (PTY) LTD 1st Respondent
RUMDEL CONSTRUCTION CAPE (PTY) LTD 2nd Respondent
MINISTER OF MINERAL RESOURCES 3rd Respondent
MINISTER OF LAND REFORM AND
RURAL DEVELOPMENT 4th Respondent
FIKENI TRADITIONAL COUNCIL 5th Respondent
BONGOLAM NDAMASE 6th Respondent
ANDILE MUSW ANA 7th Respondent
ROLF ZUNCKER 8th Respondent
MINISTER OF POLICE 9th Respondent
STATION COMMANDER:
NTABANKULU POLICE STATION 10th Respondent
STATION COMMANDER:
EMAXESIBENI POLICE STATION 11th Respondent
________________________________________________________________
JUDGMENT
________________________________________________________________
RUSI J
[1] The first respondent is a company with limited liability registered in
terms of the company laws of the Republic of South Africa. Its business entails
the mining of stone, aggregate and grav el. The sixth respondent is its sole
director. In 2023 the first respondent had been conducting mining operations at
Mjelweni Quarries situated in Mjelweni Locality in the District of Ntabankulu
and on a piece of land situated in Luxwesa Locality in the Di strict of
Maxesibeni (formerly known as Mount Ayliff). At the time, the first respondent
had been the holder of a mining permit issued to it by the Department of
Mineral Resources and Energy (DMRE) bearing reference number 27/2021.
[2] The first respondent ’s mining activities included rock blasting which the
second respondent undertook. The seventh and eighth respondents are the
employees of the first and/or second respondents.
[3] Aggrieved by the first respondent’s mining activities, the applicants, who
are members of the Mjelweni and Luxwesa communities, staged a protest action
in a quest to put an end to the mining operations or to voice their disquiet
thereat. The gist of their complaint was that an access road to the mining site
was developed without consultation with the members of the community or the
community leadership. The mining operations negatively impacted their lives,
livelihood, well -being health and environment, and caused damage to their
property.
[4] In an attempt to quell the protests, the respondents, on 03 October 2023,
unsuccessfully applied for an interim interdict prohibiting the applicants from
interfering with its mining operations. That interim relief was opposed by the
applicants who contended that the first respondent’s mining permit did not
authorize it to conduct mining operations in Mjelweni and Luxwesa. Even
though the respondents were unsuccessful in seeking the interim interdict, the
determination of the final interdict remains pending in this Court.
[5] The applicants subsequently made a counter application which was heard
on 29 August 2024, in which they sought and were granted by Brooks J, an
interim interdict against the respondents halting the mining activities on their
land without a permit, pending the determination of the main application (the
order of Brooks J). It is this order that the only the first, second, sixth, seventh
and eighth respondents are alleged to have disobeyed in circumstances that I
will deal with shortly hereafter. In January 2025, the applicants brought an
application for an order holding the respondents in contempt of the order of
Brooks J. They sought their committal for the alleged contempt, among other
relief. For the sake of brevity, I shall henceforth in this judgment refer to the
first, second, sixth, seventh and eighth respondents as “the respondents.” No
substantive relief is sought against the rest of the respondents.
[6] The application is opposed by the respondents, and it served before me on
31 July 2025. On the date of the hearing of the application, Counsel for both
parties readily acknowledged that the urgency with which the application had
been launched in January 2025 had dissipated, hence, it was no longer an issue
for my determination.
[7] In tandem with their opp osition to the contempt application, the
respondents made three interlocutory applications. Mr Bodlani, together with
Mr Bakker, appeared for the respondents, while the applicants were represented
by Mr Pienaar. More about the respondents’ interlocutory ap plications later on
in this judgment.
The common cause background and litigation history
[8] The first respondent was issued with a mining permit, number 27/2021,
by the Department of Mineral Resources and Energy to mine stone aggregate,
aggregate and grav el on a part of farms Mnceba 23 and 52 in the District of
Ntabankulu. Based on this license, the first respondent conducted its mining
operations on land situated in Luxwesa Locality in the District of Maxesibeni
and in the Mjelweni Quarries in Ntabankulu. The license was subject to annual
renewal, and the last renewal was on 09 October 2025 for a year which will end
on 10 October 2026.
[9] The precise location of the mining site became highly contested between
the parties. The applicants protested against the first respondent’s mining
activities stating that its mining permit directs it to mine in Mnceba 23 and 52 in
Ntabankulu and not on their land situated in Luxwesa locality in MaXesibeni.
The dispute culminated in a long history of litigation between the parties, which
includes the application in which Brooks J made an order dated 29 August 2024.
In that order ‘the applicants’ were the respondents in the present case. It was
granted in the counter application brought by the present applicants, and its
terms were, inter alia, that:
(a) Pending the finalization of the main application, the applicants are interdicted and
restrained from conducting and mining operations on the land situated at Luxwesa
Locality in the District of EmaXesibeni (formerly known as Mout Ayliff) without a
permit that has been issued to them by the relevant authorities in terms of the laws of
the RSA.
(b) Pending the finalization of the main application, the applicants are interdicted and
restrained from conducting and mining operations on the land situated at Mjel weni
Locality in the District of Ntabankulu without a permit that has been issued to them
by the relevant authorities in terms of the laws of the RSA.
(c) Pending the finalization of the main application, the applicants are directed to remove
all and any machinery that has been brought to Luxwesa Locality in the District of
EmaXesibeni and at Mjelweni Locality in the District of Ntabankulu for tbe purposes
of conducting illegal minding operations.
[10] In his judgment on the counter application, Brooks J made an observation
that as identified by the then respondents (the applicants herein), the mining
permit that the applicants (the present respondents) relied on in asserting their
mining rights did not pertain to the locality in which the Luxwesa and
Mjeleweni communities’ land is situated. Resulting from this, the learned Judge
expressed himself as follows:
‘In essence what is sought . . . is the halting of the mining activities pending a resolution of
the main application determining whether or not indee d the applicants have the right to mine
the main application determining whether or not indee d the applicants have the right to mine
in the relevant area. . . Upon an analysis of the main application papers and without making a
finding . . . [inaudible] it seems unlikely that the applicants would be successful, as the
respondents have identified the permit that the applicants rely upon as not pertaining to the
locality in which the respondents’ land is situated . . . It is also open to the applicants to
remedy the situation either by embarking upon the necessary consultation in order to secure
the issue of an appropriate permit relating to Mjelweni locality, or to cease the mining
operations. It is also open to them to pursue the application they have brought to determine
the final position relating to the right of the applicants to conduct such mining.’
[11] The first respondent subsequently produced GPS coordinates which
depict the demarcation of the area on which it is authorized to mine. According
to the GPS coordinates the mining permit area is 5 Hectares in extent and covers
part of farm 23 Mnceba and part of farm 52 located in Mjelweni Village in Ward
12, Mvenyane Administrative Area, Ntabankulu, in Alfred Nzo District
Municipality. The GPS coordinates are confirmed by expert land surveyors in a
report dated 10 September 2024 to which is atta ched a plan which depicts both
‘Mvenyane no. 89 (52) and Mnceba No. 23.’ The plan further depicts Mnceba
No. 23 as located in the Administrative District of Maxesibeni. The respondents
also rely in this application on a letter from the DMRE dated 25 Octobe r 2025
with the following content:
‘MINING PERMIT NUMBER 27/2021
1. I refer to the above-mentioned matter.
2. I hereby confirm that Bismark (Pty) Ltd was granted a permit under reference
number 27/2021, to mine stone aggregate, aggregate and gravel on a part of the farm
Mnceba 23 and farm 52. The coordinates of the mining permit area, as depicted in the
plan contemplated regulation 2 (2) (sic) to the Mineral Resources and Developmen,
2002 (sic) (Act no.28 of 2002) (the MPRDA), which accompanied the mining permit
application, falls under both the magisterial districts of Ntabankulu and Maxesibeni.
3. The mining perm it was granted in terms of section 27 of MPRDA on 11 October
2021 and was renewed twice. The current renewal period, which is a second renewal
2021 and was renewed twice. The current renewal period, which is a second renewal
period, will lapse after a period of 13 months (i.e. 10th October 2026).’
[12] After obtaining the GPS coordinates, the expert surveyor’s report and the
letter from the DMRE (collectively, the GPS coordinates), the first respondent
resumed its mining activities at Mjelweni and Luxeswa. The resumption of the
mining activities was heralded in a letter written on behalf of the first
respondent by its attorneys on 19 December 2024. Upon becoming aware of the
resumption of mining activities on their land, the applicants served upon the
respondents a warrant of ejectment, seeking to eject them from their land.
[13] In resp onse, and on ex parte basis, the respondents sought and were
granted an order by Majiki J, on 14 December 2024, staying the execution of
the warrant of ejectment; interdicting their ejectment from the mining sites at
Luxwesa and Mjelweni; interdicting the applicants as respondents in that matter,
from removing the first and second respondents security personnel and other
human resources personnel from the mining area; and granting the first and
second respondents the right to obtain, retain and remain in po ssession of the
mining area. This order was set aside by Majiki J on 03 January 2025 upon a
reconsideration application that was brought by the applicants, with the result
that the position according to the order of Brooks J prevailed.
[14] Undeterred by the applicants’ opposition of its mining activities, the
respondents approached this Court in an application which served before
Mhambi AJ. In that application, they sought an order declaring permit 27/2021
issued by DMRE valid; and prohibiting the applica nts qua respondents from
unlawfully interfering the first respondent’s mining operations. Attempts by the
applicants to enforce the order of Brooks J included the service on the
respondents, of the orders of Majiki J in which she set aside the stay of
execution of the warrant of ejectment, and the order of Mhambi AJ.
[15] On 08 or 09 January 2025 the first respondent carried out rock blasting at
the mining site in Luxwesa. This impelled the present application. Its essence is
that since the first respondent’s mining permit does not direct the respondents to
conduct mining operations at Mjelweni and Luxwesa, by continuing with the
conduct mining operations at Mjelweni and Luxwesa, by continuing with the
mining activities at these places they acted in contempt of the order of Brooks J
‘as read with the order of Majiki J dated 03 J anuary 2025 (the reconsideration
order), and the judgment and order of Mhambi AJ’.
[16] It also became common cause between the parties that the orders of
Brooks J, the reconsideration order and the judgment and order of Mhambi AJ,
were served on the resp ondents and therefore the respondents had full
knowledge of them when they continued with the mining activities on 08
January 2025. It is convenient at this point that I interpose to deal with the
interlocutory applications first.
The interlocutory applications
[17] In the first application, the respondents sought the striking out of several
averments made by the applicants in their replying affidavit. The second
application, which was contingent upon the dismissal of the application to strike
out, was for leave to file a further answering affidavit in response to the
allegations made in the replying affidavit to which the strike out relates. The last
application was for the leave of this Court for the admission of a further
affidavit in which new evidence w as adduced. That new evidence was a letter
from the Regional Manager of the Eastern Cape’s DMRE dated 09 October
2025 confirming a subsequent renewal of the aforementioned permit 27/2021
until 10 October 2026. This latter application was granted, unoppose d by the
applicants.
[18] The impugned paragraphs of the replying affidavit are 11.2; 11.4; 11.7;
141 and 142; 15 to 18; 36, 37 and 38; 55; 65 and 67; and the 3 rd paragraph of
the “conclusion”. The basis of the application to strike out was two pronged. In
respect of paragraphs 11.2; 11.4; 11.7; 141 and 142; 15 to 18; 36, 37 and 38; 55,
the respondents stated that the allegations contained therein are material and
were made for the first time in the replying affidavit and thus prejudicial to the
respondents to the extent that they were not afforded an opportunity to respond
them. As regards paragraphs 65 and 67; and the 3 rd paragraph of the
“conclusion”, the respondents contend that they are vexatious, intended to
embarrass and harass them and are irrelevant.
[19] In paragraphs 11.2; 11.4; 11.7; 141 and 142, the applicants alleged that
after they were served with the order of Brooks J, the respondents undertook to
leave their land within a week of service of the said order and later requested an
extension of this period. In paragraphs 15 to 18, the applicants alleged that due
to the intervention of the SAPS, the respondents ceased their operations, and if
not, they continued with them clandestinely. Their quest to obtain interdictory
relief against the SAPS on 12 November 2024 was influenced by the fact that
they never ceased their mining operations.
[20] The complaint pertaining to paragraphs 36, 37 and 38 of the replying
affidavit is that in these paragraphs, new matter is pleaded regarding the damage
caused by fly rocks to the home of one Sithembele Mbedle and that the
respondents admitted liability and apologized for the damage caused. In this
regard, the respondents stated that there is no reason why the applicants did not
raise this further damage and the alleged admission of liability in the founding
affidavit where they had pleaded the matter pertaining to the damage to
Mbedle’s property.
[21] Regarding paragraphs 55 of the replying affidavit, the applicants alleged
for the first time, that the local Chi efs made affidavits regarding their failure to
consult the community, and that community consultation were done after the
order of Brooks J. The respondents contend that this is prejudicial to them. They
contend that these allegations ought to have been made in the founding affidavit
where the applicants dealt with the alleged failure of the respondents to consult
the community. The respondents further state that the prejudice emanates the
fact that the said Chiefs’ affidavits have not been attached to the papers.
[22] In paragraphs 65 and 67; and the 3 rd paragraph of the “conclusion”, the
applicants alleged that Majiki J, in her reconsideration order of 03 January
2025; and later, Mhambi AJ, in the proceedings before him on 12 November
2024, rejected the evidence of the GPS coordinates and the surveyor’s report
and that this evidence was sought to be “sneaked in” by the respondents as they
avoided ventilation the issues in the main application.
Counsel’ s submissions on the application to strike out
[23] Mr Bakker submitted that emphasized the fact that the new matter
pleaded entails substantial issues and respondents have been prejudiced in that
they were not afforded an opportunity to respond to it and that the applicants
acted against the establish ed rule that all allegations relied on by the applicant
must be made in the founding affidavit.
[24] Mr Pienaar’s principal submission was that the answering affidavit was
voluminous and elicited the matter sought to be struck out. In this regard, he
submitted that the impugned averments were in response to the background of
this application as it appears both from the founding and answering affidavits.
As regards paragraphs 11.2; 11.4; 11.7; 141 and 142, it was submitted in the
applicants’ supplementary h eads of argument dealing with the application to
strike out that the allegations were made in the founding affidavit regarding the
respondents’ request for a week to vacate the mining sites.
[25] After hearing counsel, I upheld the application to strike out, with costs,
and indicated that my reasons would follow. What follows immediately below
are those succinct reasons.
Reasons for the strike out order
[26] Rule 6(15) provides that the court may on application order to be struck
out from any affidavit any matter which is scandalous, vexatious or irrelevant,
with an appropriate order as to costs, including costs as between attorney and
client. The court may not grant the application unless it is sa tisfied that the
applicant will be prejudiced if the application is not granted. Among the matter
that is susceptible to be struck out is new matter that is raised in a replying
affidavit.
[27] It is trite that the rule that all the necessary allegations upon which the
applicant relies must appear in his or her founding affidavit is not an absolute
one. The court has a discretion to allow new matter in a replying affidavit in
exceptional circumstances.1 In exercising this discretion, the court will consid er
factors such as whether all the facts necessary to determine the new matter in
the replying affidavit were placed before court; whether the determination of the
new matter will cause prejudice to the respondents which a postponement and
cost order would not ameliorate; whether the new matter was known to the
applicant when the application was launched; and whether to disallow the new
matter will result in unnecessary waste of costs.2
[28] It is so, as adumbrated above, that there is a long history of l itigation
involving the parties in this application. Central to the dispute between the
parties is the first respondent’s entitlement to conduct mining activities at
Mjelweni and Luxwesa. Even though the applicants alleged in the founding
affidavit that th e respondents requested a period of a week to remove their
machinery, a fact which the respondents deny, that they requested a further two
weeks to make arrangements to leave ought to have been alleged in the
founding affidavit. Curiously, the applicants make this latter allegation after the
respondents stated in response, that the allegation is untrue as it could not have
been practical to remove its machinery from the site within a week.
1 Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and Others (363/2011) [2012]
ZASCA 49; 2013 (2) SA 204 (SCA) (30 March 2012).
ZASCA 49; 2013 (2) SA 204 (SCA) (30 March 2012).
2 Ibid, para 26; see also Minister of Police v Kati (CA 15/2024) [2024] ZAECMHC 30 (15 May 2024), para 13;
Erasmus Superior Court Practice, V olume 2 [Service 15, 2020] at D1 – 66.
[29] In any event, it is not available to the applicants to state t hat paragraphs
15 to 18 entail historical background to the application. This background was
sufficiently set out in the founding affidavit. It is difficult to fathom why the
applicants saw a need to rehash it in the replying affidavit. Furthermore, and
significantly, the facts necessary to determine the issues germane to the
contempt application were sufficiently placed before court in the founding
affidavit. Issues such as the respondents’ admission of liability for the damage
caused to the property of th e members of the community are irrelevant for the
present purposes.
[30] Rather strangely, it was submitted in the applicants’ supplementary heads
of argument that the matter that the applicants raised in their replying affidavit
which the respondents com plain of is not essential to the determination of the
main issues but arose from the founding affidavit. This begs the question why
those allegations had to be made in the replying affidavit. This is the kind of
abuse of the process of court that Harms ADP spoke about when he once said:
‘A reply in this form is an abuse of the court process and instead of wasting judicial time in analysing it sentence
by sentence and paragraph by paragraphs such affidavits should not only give rise to adverse cost orders b ut
should be struck out as a whole. . . mero motu . . .’3
[31] The averments in paragraphs 65, 67 and paragraph 3 of the “conclusion”
are intended to cast aspersions on the respondents and therefore vexatious. For
all these reasons, I came to the conclusion that the impugned averments were
prejudicial to the responden ts. The granting of the strike out disposed of the
second application. I have already indicated that the third application was
granted, unopposed.
[32] It bears remarking that the applicants’ replying affidavit was more than 61
pages, almost double the le ngth of the founding affidavit, and in some respects
pages, almost double the le ngth of the founding affidavit, and in some respects
extensively repetitive – undoubtedly unnecessarily prolix. I can do no better
3 Van Zyl v Government of the Republic of South Africa 2008 (3) SA 294 (SCA) at 370G-H.
than quote Schutz JA in Minister of Environmental Affairs and Tourism v
Phambili Fisheries (Pty) Ltd; Minister of Environment al Affairs and Tourism v
Bato Star Fishing (Pty) Ltd,4 when he said:
‘[80] There is one other matter that I am compelled to mention – replying affidavits. In the
great majority of cases the replying affidavit should be by far the shortest. But in practice it is
very often by far the longest – and the most valueless. . . The respondents, who were the
applicants below, filed replying affidavits of inordinate length. Being forced to wade through
their almost endless repetition when the pleading of the case is all but over brings about
irritation, not persuasion. It is time that the courts declare war on unnecessarily prolix
replying affidavits and upon those who inflate them.’
[33] With this said, I turn to deal with the parties’ respective cases in the
contempt application.
The case for the applicants
[34] The applicants contend, chiefly, that the first respondent’s mining
activities continued on 08 January 2025 despite the order of Brooks J ‘read with
the reconsideration order and the judgment and order of M hambi AJ’. They
further state that this conduct caused damage to the property of 3 community
members including the fifth applicant, and the blasted rocks flew onto their
premises. It is their contention further, that, the permit that the first respondent
relied on in continuing with its mining activities was not issued in terms of
legislation as it had no coordinates and diagram signed by a surveyor and the
Regional director of the province in whose jurisdiction the mine falls, and there
was no consultation with the Luxwesa and Mjelweni Communities.
[35] According to the applicants the order of Brooks J constituted an absolute
bar on the first respondent’s mining activities at Mjelweni and Luxwesa pending
the determination of the main application. They furt her rely on a dictum that
the determination of the main application. They furt her rely on a dictum that
4 Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd and Another
(32/2003, 40/2003) [2003] ZASCA 46; [2003] 2 All SA 616 (SCA); 2003 (6) SA 407 (SCA) (16 May 2003);
2003 (6) SA 407 (SCA) at 438G-H.
appears in the judgment of Mhambi AJ when he said, at paragraph 40 of the
judgment:
‘It is apparent from the litigation between the parties that the main application instituted by
the applicants has the same issue for determinatio n in this application, the validity or
otherwise of the mining permit of the applicants when the counter application was heard by
my brother Justice Brooks J, he reserved the issue for the determination of the validity of the
permit of the applicants to the court to hear the main application.’
[36] On this score, the applicants contend that Mhambi AJ barred the reliance
on the GPS coordinates and directed that the only recourse for the respondents
was to ventilate the issue pertaining to the GPS coordinates in the main
application. According to the applicants, the respondents continued to ‘second -
guess’ the order of Brooks J by seeking the aforementioned relief before Majiki
J and Mhambi AJ.
[37] According to the applicants, the respondents’ conduct of conti nuing with
the mining activities, and in the case of the sixth, seventh and eighth
respondents, failing to ensure that the order of Brooks J was obeyed, amounted
contempt of court. The applicants further state that the respondents’ conduct is
mala fide and contumacious, in that, after they were served with the order of
Brooks J together with the orders of Majiki J and judgment and order of
Mhambi AJ, they undertook to vacate the mining sites but never did so.
[38] An overarching allegation which the applic ants make is that even though
as at 08 January 2025 the first respondent had secured and produced further
evidence of the GPS coordinates, which further explain the demarcation of the
contested mining area, that evidence did not give them the right to continue with
their mining operations at Mjelweni and Luxwesa. They base this contention on
the afore quoted dicta of Brooks J and Mhambi AJ in their respective judgments
in the already mentioned applications that involved the parties.
[39] The applicants further state that the correct interpretation of the orders of
Brooks J, the reconsideration order and the judgment and order of Mhambi AJ,
cumulatively, is that the respondents have no right to rely on the further
evidence of the GPS coordinates and expert r eports elsewhere other than in the
main application.
The respondents’ case
[40] The respondents rely on the mining permit with the attached diagram,
issued by DMRE and the GPS coordinates. They contend that they continued
with the mining operations at Luxwesa and Mjelweni on the strength of the
permit and the GPS coordinates. According to the respondents, even those these
documents were not before Brooks J on 29 August 2024, they are known to the
applicants since November 2024.
[41] According to the respondents, the order of Brooks J was not an absolute
bar to their mining activities. It only prohibits illegal mining or mining on the
applicants’ land ‘without a permit’. As a result, reference to the reconsideration
order to buttress the con tempt contention is misplaced as Majiki J did not
consider the validity of the permit. The same is the case with Brooks J. As
regards the judgment and order of Mhambi AJ, the respondents state that it also
is no bar to the first respondent’s mining operati ons and has no effect on the
present application. It is the respondents’ contention further, that by securing the
evidence of the GPS coordinates, the expert surveyor’s report and the letter
signed by the Regional Manager of the DMRE, they did what the cou rt directed
in its judgment in the matter that appeared before Brooks J on 29 August 2024.
It is instructive to repeat the relevant portion of the dictum of Brooks J, where
he said:
‘. . .Upon an analysis of the main application papers and without making a finding . . .
[inaudible] it seems unlikely that the applicants would be successful, as the respondents have
identified the permit that the applicants rely upon as not pertaining to the locality in which the
respondents’ land is situated . . . It is also open to the applicants to remedy the situation either
by embarking upon the necessary consultation in order to secure the issue of an appropriate
permit relating to Mjelweni locality, or to cease the mining operations. It is also open to them
to pursue the application they have brought to determine the final position relating to the right
of the applicants to conduct such mining.’
[42] Dealing with the complainant that the permit was issued without
consultation, the respondents state that the permit was issued after various
stringent processes were followed including the consultation of the affected
communities of Mjelweni and Luxwesa. The respondents further state that the
purpose of the application is to harass and annoy them – it is a vexatious
application. For if the applicants wish to assail the validity of the permit they
ought to do so in the appropriate review proceedings. Further according to the
respondents, not even the pending main application entails the issue of the
validity of the permit, but rather whether or not the first respondent is entitled to
mine at Mjelweni and Luxwesa.
The replying affidavit
[43] Apart from repeating the history of litigation regarding the disputed
mining area, the material allegations made in the replying affi davit, barring
those that have been struck out, are that the respondents are not entitled to rely
on the GPS coordinates in continuing with mining activities. Thus, they are in
contempt of the order of Brooks J. In this regard, the applicants contend that
Brooks J and Mhambi AJ “both re-iterated that the matter must be ventilated in
the main application”.
[44] The applicants also persist with the contention that the area mined at is
not what is demarcated in the permit. They confirm that coordinates were
produced after the order of Brooks J but state that this was in order to “cure the
defect in the respondents’ case in the main application. In persisting with their
defect in the respondents’ case in the main application. In persisting with their
interpretation of the judgment and order of Brooks J, the reconsideration order
and the judg ment and order of Mhambi AJ, the applicants say that since all
these orders were an absolute bar to the continuation of the first respondent’s
mining activities in Mjelweni and Luxwesa, the respondents had to show, in the
main application, that their permit meets the requirements of the law.
[45] The applicants contend that the permit relied on is not the kind of permit
that Brooks J envisaged in that it was not granted in terms of the laws of
Republic of South Africa. This, despite the fact that in the same replying
affidavit, they encapsulate the context of the order and judgment of Brooks J as
being that ‘the court understood that the respondents had a permit, however,
such permit does not direct them to mine where they are mining.’ In similar
vein, th ey state that the fate of the permit will be determined in the main
application.
The parties’ submissions
[46] Mr Pienaar took the view that because the evidence of the GPS
coordinates was obtained after the order of Brooks J, it has no bearing on these
proceedings. He persisted with the contention that by continuing with their
mining operations even with the GPS coordinates, the respondents acted in
contempt of the order of Brooks J. In his words’ “the court orders are stronger
that the evidence of the GP S coordinates”. Thus, it was submitted on behalf of
the applicants that ‘the evidence of GPS coordinates is not good enough’ - it is
no justification for their failure to obey the court order. Mr Pienaar further
submitted that the proper avenue to ventilat e the evidence of the GPS
coordinates is the main application. I was referred to Clipsal Australia (Pty) Ltd
and Others v Gap Distributors (Pty) Ltd and Others 5 which was an appeal
against the decision of the High Court in staying the application for contempt of
court pending the intended application for review.
5 Clipsal Australia (Pty) Ltd and Others v Gap Distributors (Pty) Ltd and Others (657/08) [2009] ZASCA 49;
2010 (2) SA 289 (SCA); [2009] 3 All SA 491 (SCA); 2009 BIP 251 (SCA) (25 May 2009). (Clipsal)
[47] In Clipsal, an order was granted interdicting Gap Distributors and Trust
Electrical Wholesalers from infringing registered design A96/0687 by making,
importing, using or disposing of certain Lear G-2000 series single and double
electrical sockets (‘Gap sockets’). Subsequent to the court order Botbol, who is
the sole shareholder and the managing director of Gap, caused Lear, which was
a close corporation at the time, to be converted into a comp any of which he is
the sole shareholder and director. Thereafter Lear applied to the High Court,
Pretoria (‘the Lear application’) for an order – (i) (a) declaring that the word
‘original’ in s 14(1)(a)(ii) of the Designs Act 195 of 1993 has a different
meaning to the one ascribed to it by this court in the first Clipsal application;
alternatively (b) declaring that s 14(1)(a) alternatively s 20(1) of the Designs
Act is inconsistent with the constitution; and (ii) revoking Design A96/0697.
Prior to this cou rt’s order against Gap Distributors and Trust Electrical
Wholesalers, Lear was not in the business of importing and selling electrical
sockets in South Africa but subsequent to the order it started selling such
sockets (‘Lear sockets’). This gave rise to t he contempt application. The
appellants contended that the Lear sockets differ only in immaterial respects
from the Gap sockets and the sockets that are the subject of the registered
design; that Gap and Lear are but Botbol in different guises and that the
corporate veil between them should be pierced. The respondents opposed the
application and lodged a counterclaim for the same relief as had been claimed in
the Lear application.6
[48] In overturning the decision of the court a quo, the SCA held as follows:
‘However, the outcome of the review application is irrelevant to the question whether the
respondents were acting in contempt of court. In terms of the court order Gap Distributors
and Trust Electrical Wholesalers are interdicted from infringing registered design A96/0687.
and Trust Electrical Wholesalers are interdicted from infringing registered design A96/0687.
That court order is a final order and has to be obeyed even if it is wrong as is alleged by the
respondents. Should the review application be successful and the registration of the design be
6 This summary appears from paragraphs 2 to 4 of the Clipsal judgment.
set aside, the interdict would come to an end as there would no longer be a registered design,
but until that happens the interdict stands and has to be obeyed. As was said by Herbstein J in
Kotze v Kotze 1953 (2) SA 184 (C) at 187F -G: ‘The matter is one of public policy which
requires that there shall be obedience to orders of Court and that people should not be
allowed to take the law into their own hands.’7
[49] In response, Mr Bodlani made these principal submissions: the
determination of the issue before court ought to commenc e with the
interpretation of the order of Brooks J in accordance with the established
principles of the law. The order in question does not constitute an absolute bar
to the first respondent’s mining activities – it is mining without a permit that the
order prohibited.
[50] As regards the removal of the machinery from the mining sites, Mr
Bodlani further submitted that the order makes it plain that the proscription
applies where the machinery is brought to the sites ‘for the purposes of
conducting illegal mining activities.’ An interpretation, such as that adopted by
the applicants, which suggests that the order prohibited mining operations
pending the main application, brings about unbusinesslike results and is
insensible. This is so, he said, because the respondents produced GPS
coordinates as well as the expert surveyor’s reports and the letter of the
Regional Manager, which all clarify the boundaries of the mining area.
[51] It was Mr Bodlani’s submission further, that, in the event of this Court
finding that the respondents did not comply with the order of Brooks J, a
finding must be made that such non-compliance was not wilful and mala fide. In
this regard, he submitted that the respondents have discharged the evidential
burden of creating reasonable d oubt in the applicants’ case. In developing this
argument, he submitted that since the applicants did not gainsay the evidence of
the GPS coordinates which they knew of long before the application was
the GPS coordinates which they knew of long before the application was
7 Clipsal, para 21.
launched, and since the respondents conducted the minin g operations in
accordance with the boundaries delineated by the GPS coordinates, it cannot be
said that the respondents willfully and mala fide disobeyed the order of Brooks
J.
[52] Dealing with the contention that the respondents are not entitled to re ly
on the evidence of the GPS coordinates in this application, Mr Bodlani
submitted that this contention cannot be sustained since it amounts to the
applicants prescribing to the respondents what evidence to present in defence.
This, he said, is all the mo re so that none of the court orders referred to by the
applicants, properly construed, prohibit the reliance of the GPS coordinates in
these proceedings.
The legal principles
[53] In order for the applicants to succeed in seeking the contempt order, they
must prove beyond reasonable doubt:
(a) the existence of the court order;
(b) the service of the order or knowledge thereof;
(c) Non-compliance with the court order; and
(d) The non- compliance must have been wilful and mala fide.8
[54] Proof of knowl edge of the court order and non -compliance places an
evidential burden on the contemnor to create reasonable doubt as to wilfulness
and mala fides.9
[55] As held in Fakie, the test for when disobedience of a civil order
constitutes contempt has come to be stated as whether the breach was
committed ‘deliberately and mala fide’. A deliberate disregard is not enough,
8 Pheko & others v Ekurhuleni Metropolitan Municipality & another 2015 (5) SA 600 (CC) at para 32; Fakie
NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at para 9 and 16. (Fakie)
9 Fakie, supra, para 42.
since the non-complier may genuinely, albeit mistakenly, believe him- or herself
entitled to act in the way claimed to constitute the contempt. In such a case good
faith avoids the infraction. Even a refusal to comply that is objectively
unreasonable may be bona fide though unreasonableness could evidence lack of
good faith.10
[56] In the discussion that follows, I consider whether a case has been made
for the contempt order sought.
Discussion
[57] The existence of the above -mentioned court orders and the continuation
of the mining operations after they were granted are common cause facts
between the parties. This Court’s enquiry turns on w hether in continuing with
the mining operations, the respondents willfully and mala fide refused to obey
the order of Brooks J. The question to be answered is whether while they knew
and understood the terms of the order Brooks J and what is required to be done
to comply with it, the respondents deliberately did not comply with it without
any justification.
[58] What clearly emerges from the dispute at hand is that a proper
determination of the issues requires an interpretation of the order of Brooks J.
As regards the interpretation of court orders, the Supreme Court of Appeal, in
Martrade Shipping and Transport GmbH v United Enterprises Corporation and
MV ‘Unity’,11 put the legal position this way:
‘The principles which apply to the interpretation of court orders are well established. Trollip
JA observed in Firestone South Africa (Pty) Ltd v Gentiruco AG that the same principles
apply as apply to construing documents. Thus, ‘..(T)he court’s intention is to be ascertained
from the language of the judgment or order as construed according to the usual, well -known
10 Ibid, paras 9 and 16.
11 Martrade Shipping and Transport GmbH v United Enterprises Corporation and MV ‘ Unity’ (1341/18) [2020]
ZASCA 120 (2 October 2020.
rules… Thus, as in the case of a document, the judgment or order and the court’s reasons for
giving it must be read as a whole to ascertain its intention.’12
The court went further and said:
‘The starting point, it was held in Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal
South Africa Limited and others, is to determine the manifest purpose of the order. This was
endorsed by the Constitutional Court in Eke v Parsons . This court, in Natal Joint Municipal
Pension Fund v Endumeni Municipality, described the process of interpretation as involving a
unitary exercise of considering language, context and purpose. It is an objective exercise
where, in the face of ambiguity, a sensible is to be preferred to one which undermines the
purpose of the document or order.’13 (footnotes omitted)
[59] It is discernible from the judgment handed down by Brooks J, with
respect, that he deliberately refrained from making any pronouncement on the
extent of the area where the first respondent was authorized to conduct mining
operations in Luxwesa and Mjelweni. Not only this, but mindful of the fact that
the point of dispute was whether the permit held by the first respondent entitled
it to conduct mining oper ations at Luxwesa and Mjelweni, and not the validity
of the permit, the Honourable Judge remarked as follows:
‘In essence what is sought . . . is the halting of the mining activities pending a resolution of
the main application determining whether or not indeed the applicants have the right to mine
in the relevant area. . .’
[60] On the interpretation of the order of Brooks J, it was submitted on behalf
of the applicants that to contend that Brooks J prohibited the mining only where
it was without a permit would “result in absurdity” and would be too simplistic.
I disagree. Below I state why.
[61] I readily accept that the issue of the boundaries of the mining area is at
the heart of the main application. But sight must not be lost, I think, of the fact
the heart of the main application. But sight must not be lost, I think, of the fact
that the respondents were the initiators of that application. They availed
12 Id, para 2.
13 Id, para 3.
themselves of further documentary evidence that would clarify the issue of the
contested mining boundaries. It is inconceivable in my view, and it indeed
makes no business nor judicia l sense, that the respondents would be forced to
wait until the determination of the final interdict in which they are dominis litis,
when there was available to them an avenue to remedy the cause of the
applicants’ complaint. Brooks J must have been mindf ul of this too, when he
made the remarks that I have quoted earlier on in this judgment.
[62] The case of Clipsal that I was referred to is distinguishable from the
present case on the facts. In the present case, Brooks J granted interim relief
pending the final determination of the main application. Not only that, but, as
already mentioned, the order of Brooks J, properly interpreted in the context of
the court’s reasoning was that it was available to the applicants to remedy the
cause of the complaint or persist with the main application, inter alia. To my
mind, the order of Brooks J, properly construed against the text of the judgment,
could not have been an absolute bar to the mining activities continuing where,
as it has happened here, the respondents w ere able to subsequently remedy the
situation that obtained when the matter served before the Honourable Judge.
[63] Moreover, the timing of the alleged date of resumption of the mining
operations, viz, after 19 December 2024, is not without significance. At the time
the respondents resumed the mining operations, they had obtained the GPS
coordinates, the expert surveyors report and the letter written by the Regional
Manager of DMRE. Put simply, the respondents were the holders of a permit in
relation to L uxwesa and Mjelweni as defined in the already mentioned
documents. In Clipsal, a final interdict had been granted prohibiting the
development of a certain design. However, under the guise of a different entity,
the respondent in that case, committed the ve ry act that had been prohibited in
the respondent in that case, committed the ve ry act that had been prohibited in
terms of the final court order. This is not what took place in the present matter.
[64] The applicants are of the view that despite being dominis litis in the
pending application, the respondents are forced to follow through with it. I must
not be construed to be saying that to the extent that the applicants made a
counter application it must be abandoned if the respondents are no longer
desirous to persist in the interdict. I need only state that a counter application
has a life of its own. There would be no bar in the applicants continuing with it
if so advised. For the present purposes, I am called upon to determine whether
an act of contempt of court has taken place.
[65] It is indeed unfortunate that upon being provided with the evidence of the
GPS coordinates after the order of Brooks J, the applicants sought to straitjacket
the course of the dispute by persisting that the respondents must proceed to
ventilate the issue in the main application. Needless to say that t he remarks of
Brooks J point to the fact that he did not envisage that where the situation that
obtained before him had been remedied, the parties were obliged to continue
with the main application.
[66] I may add that if, as it appears to be the position that the applicants took,
the GPS coordinates are “a scary breed of its own kind that has not been
granted in terms of the laws of South Africa as the order directs” to quote them
verbatim, the proper course for them to follow would be to challenge the
decision to issue that permit in review proceedings. In the context of the present
application, a bald assertion as to the authenticity or validity of the permit
cannot suffice. This, all the more so, that the applicants produced no
countervailing evidence to establish that the permit relied upon is a sham for
lack of a better word. It seems to me that after all, when the applicants were
provided with these documents, th at was the point where they had to decide on
the appropriate legal course that would expeditiously deal with the dispute.
the appropriate legal course that would expeditiously deal with the dispute.
[67] It would be remiss of me not to acknowledge the fact that the mining
operations are not just about the sites where they are under taken. They have
adverse effects on the communities where they are undertaken. People’s lives,
health, and environmental resources are invariably adversely affected. The
operations come with high levels of inconvenience and tend to disrupt the lives
of the communities. They strike at the heart of the fundamental rights of the
communities. It is unsurprising that the law sets out stringent requirements to be
fulfilled for the granting of mining permits or licences. However, in the context
of the present matt er, where the applicants hold a view that the respondents’
mining permit was not validly issued, contempt of court proceedings are no
panacea for the inconvenience as may be suffered by the communities of
Luxwesa and Mjelweni.
[68] The standard of proof i n contempt proceedings is that of proof of all the
elements of contempt beyond reasonable doubt. The applicants have failed to
discharge this onus. The application must accordingly fail.
Costs
[69] Mr Pienaar submitted that in the event that the applicatio n fails, the
applicants should be granted the benefit of the Biowatch14 protection and be
exempted from paying the respondents’ costs. I invited him to address the
question whether the Biowatch protection extends to private litigants who are
litigating on equal footing on matters having nothing to do with a constitutional
challenge to the law or state conduct. He conceded that it does not. For the sake
of completeness, the essence of the Biowatch protection is that in litigation
against the state where ther e is a genuine, non -frivolous challenge to the
constitutionality of a law or of state conduct, an unsuccessful non -state litigant
should be shielded from the costs consequences of failure. 15 The fact that none
of the respondents against whom the contempt o rder is sought in the present
14 Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14; 2009 (6) SA 232
(CC); 2009 (10) BCLR 1014 (CC) (3 June 2009) (“Biowatch”).
15 Id, para 23.
case are organs of state excludes the application of Biowatch. Mr Pienaar’s
concession was well made.
[70] On behalf of the respondents, Mr Bodlani submitted that costs be payable
on Scale B referred to in Uniform Rule 67A. It has been held that the default
position set under the Rule 67A is that counsel’s costs will be recovered on scale
A, unless there is justification for the application of a higher scale. 16 I have had
regard to the web of complex factual issues that arose i n this matter which
emanate from a long history of litigation between the parties, as well as the fact
those issues required the interpretation of court orders granted in previous
litigation between the partes. These are the features that mark this case out as an
unusually complex contempt of court case. For this reason, costs on scale B are
warranted.
Order
[71] In the result, the following order shall issue:
1. Paragraphs 11.2; 11.4; 11.7; 141 and 142; 15 to 18; 36, 37 and 38; 55; 65
and 67; and the 3 rd paragraph of the “conclusion” of the applicants’
replying affidavit are struck out. The applicants shall pay the costs of the
strike out application.
2. The contempt application is dismissed, with costs. Such costs shall
include costs of two Counsel on scale B referred to in Uniform Rule 67A.
_____________________
L. RUSI
16 Mashavha v Enaex Africa (Pty) Ltd (2022/18404) [2024] ZAGPJHC 387; 2025 (1) SA 466 (GJ) (22 April
2024), para 16.
JUDGE OF THE HIGH COURT
Appearances:
Counsel for the applicants : Adv. Pienaar SC
Instructed by : Ximbi Ncolo Inc., Mthatha
Counsel for the respondents : Adv. Bodlani SC
Adv. J Bakker
Instructed by : Cox Yeats Attorneys,
c/o Chris Bodlani Attorneys
Mthatha
Heard on : 31 July 2025
Date delivered : 20 January 2026