IN THE HIGH COURT OF SOUTH AFRICA
NORTHWEST DIVISION MAHIKENG
CASE NO: M346/2020
Appeal Case No: CIV APP FB 19/2022
In the matter between:
RUSTENBURG LOCAL MUNICIPALITY FIRST RESPONDENT
ASMAR RANTHEKENG KHIDUGE SECOND RESPONDENT
And
LAYER 3 TELECOM (PTY) LTD APPLICANT
Judgment is handed down electronically by distributing to the parties’ legal
representatives by e-mail. The date that the judgment deemed to be handed down is
26 March 2025 at 16H00.
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates: NO
ORDER
Consequently, the following order is made:
1. The application for leave to appeal is dismissed.
2. Applicants are ordered to pay the costs of the application.
JUDGMENT
MABUZAAJ
INTRODUCTION
[1 ] T his is an application for leave to appeal against the judgment of this Court
wherein the applicants were found to be in contempt of a court order by compelling
the production of documents. The applicants contend that this Court erred in finding
wilfulness and mala tides and that another court would reasonably arrive at a different
conclusion.
[2] T he respondent opposes the application and submits that no reasonable
prospects of success have been established.
FACTUAL BACKGROUND
[3] The Full Court issued an order in April 2024 directing the applicants to produce
specified documents within 10 days and furnish them to the respondent. The
applicants failed to comply within the stipulated period. Between June and November
2024, the applicants conducted what they describe as a diligent search and produced
documents incrementally. Certain documents remained outstanding, leading the
respondent to institute contempt proceedings during December 2024.
APPLICANTS’ CASE AND ARGUMENT
[4] The applicants submit that they undertook extensive efforts to locate the
documents, including appointing interns and searching archives. They argue that the
delayed production of documents demonstrates good faith and negates wilfulness and
mala fides. They contend that this Court erred in failing to properly consider the diligent
search conducted.
RESPONDENT’S CASE AND ARGUMENT
[5] The respondent submits that the applicants failed to comply with a peremptory
court order within the prescribed time. It is argued that the applicants initially
acknowledged the existence of the documents but later claimed they could not be
found. They contend that the subsequent production of some documents indicates
that documents were withheld.
[6] It is further submitted that the outstanding documents are material to intended
review proceedings.
FACTORS NOT IN DISPUTE
[7] The following issues are not in dispute:
1. that the Full Court ordered production of documents within 10 days;
2. that applicants did not comply within that period;
3. that other documents were produced months later after Full Court order;
4. that t here are still outstanding documents not provided to the
respondents.
FACTORS IN DISPUTE
[8] The following issue is in dispute:
1. That the applicants acted wilfully and mala fide in not providing the
document in terms of the Full Court order.
ISSUES FOR DETERMINATION
[9] The following factors must be determined by this Court.
1. Whether the applicants have demonstrated reasonable prospects of
success on appeal.
2. Whether another court would reasonably reach a different conclusion.
3. The issue of costs.
LEGAL PRINCIPLES
[10] Section 17(1)(a) of the Superior Courts Act 1provides that leave to appeal may
only be granted where the appeal would have a reasonable prospect of success. In
MEC for Health, Eastern Cape v Mkhitha and Another,2 the Supreme Court of Appeal
held that a mere possibility of success is insufficient.
1 Superior Courts Act 10 of 2013.
2 MEC for Health, Eastern Cape v Mkhitha and Another 2016 (ZASCA 176) para 17.
[11] In S v Smith 2012,3 the Court held that there must be a reasonable prospect
that another court would reach a different conclusion. In Ramakatsa and Others v
African National Congress and Another,4 it was held that a sound, rational basis must
exist for prospects of success.
[12] The principles governing contempt were set out in Fakie NO v CCII Systems.5
These principles were confirmed in Pheko and Others v Ekurhuleni Metropolitan
Municipality.6
[13] Costs follow the result unless exceptional circumstances exist.
ANALYSIS
[14] The applicants failed to comply with a court order within the stipulated period.
The explanation of a diligent search does not justify non-compliance with a court order.
The piecemeal production of documents supports an inference of wilfulness and mala
fides. This Court dealt with what the applicants raised as their ground of appeal in its
judgment and supported it with reasons. What the applicants argues is the mere
reputation of wh at they argued during the application by the applicant for contempt.
This Court will not in this application repeat what is has already dealt with in its
judgment delivered on 30 October 2025.
FINDING
[15] The applicants have failed to demonstrate reasonable prospects of success.
This Court find that no other court would reach a different conclusion.
3 S v Smith 2012 (1) SACR 567 (SCA) para 7.
4 Ramakatsa and Others v African National Congress and Another [2021] ZASCA 31 para 10.
5 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) para 42.
6 Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2) 2015 (5) SA 600 (CC) paras 28–30.
COSTS
[16] There is no reason to depart from the general rule that costs follow the result.
ORDER
1. The application for leave to appeal is dismissed.
2. Applicants are ordered to pay the costs of the application.
_______
B MABUZA
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTHWEST DIVISION, MAHIKENG
Heard on: 19 March 2026
Judgment delivered on: 26 March 2026
Appearances
Counsel for the Applicants : Adv N G Laubscher
Instructed by M E Tlou Attorneys & Associates Inc, Mafikeng
Counsel for the Respondent: Adv T Moretlwe
Instructed by Modiboa Attorneys, Mahikeng