IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
In the matter between:
RESEBEPI PIET MOTSOALEDI
N.O.
ANNA MATLAKALA MAHUMA
N.O
MMASEFUDI DOROTHY
MOPHATLANE N.O.
RAMAJA NICHOLAS
MOTLHATLHEDI N.O.
BOIY ANE JOHANNA MAGORO
N.O.
and
Not reportable
Case no:M160/2019
FIRST APPLICANT
SECOND APPLICANT
THIRD APPLICANT
FOURTH APPLICANT
FIFTH APPLICANT
MINISTER OF RURAL
DEVELOPMENT AND LAND
REFORM
MANNE, PETER
MASWABELA, JOHANNES
MATLALA, ANDRIES
Coram: Wessels AJ
Heard: 9 March 2026
2
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
Delivered: This judgment was handed down electronically, circulated to the
parties' representatives via email, uploaded to CaseLines, and released to
SAFLII. The date and time for the handing down of the judgment are deemed to
be 14h00 on 31 March 2026.
Summary: Contempt of court - Civil contempt - Application for
declaratory relief and compliance order following non-compliance with a
2020 court order - Requisites for contempt established.
Pract ice - Applications - Answering affidavit - Author ity of deponent -
Challenge in terms of Rule 7(1) of the Uniform Rules of Court - Failure of
deponent to respond to Rule 7(1) notice or provide proof of authority -
Burden of proof on the person whose authority is challenged to satisfy the
court.
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Practice - Evidence - Affidavit treated as pro non scr;pto where authority
of deponent is challenged under Rule 7 ( 1) and no proof of authority is
provided - Opposition to application falls away in the absence of a valid
answering affidavit.
Costs - Personal costs - Debonis propriis - Conduct of a senior pub lic
official acting without authority and ignoring court rules - Rule nisi issued
for deponent to show cause why he should not be personally liable for a
portion of the costs on a punitive scale - Conduct found to be reckless and
gross ly negligent.
JUDGMENT
WesselsAJ
Introduction
[1] In this appl ication, the applicants apply for a declaration that the
respondents are in contempt of a court order granted by Stanton AJ on 1 7
September 2020 ('the order'). The matter has a protracted history. However ,
for this judgment, it is necessary to focus on the issue of the validity of the
answering affidavit filed on behalf of the first respondent in the face of an
unchallenged Rule 7(1) notice.
[2] The applicants did not proceed with the relief sought against the second
and third respondents . They persisted only with the relief against the first
respondent. To that extent, the application against the second and third
respondents was withdrawn.
4
[3] The fourth respo ndent is deceased, and no relief was sought against
him. The app lication against the fourth respondent is accordingly moot.
Rule 7(1) challenge
[ 4] The applicants' notice of motion was served on the first respo ndent on
15 August 2024. The first respo ndent delivered a notice of intention to oppose
on 16 September 2024. However, no answering affidav it was forthcomin g.
Despite a collegial remind er sent on I 0 October 2024 and the matter being
set down on the unoppo sed roll for 30 J anuary 2025, the first respondent
serve d an answe ring affidavit only on 27 January 2025, some 70 comi days
out of time and only two days before the schedu led hearin g.
[5] The answering affidavit was deposed to by one Richard Goitseone
Keothaile (' Mr Keothaile'), who described himself as the Chief Director of
the North West Provincial Shared Services Centre of the Department of Land
Reform and Rural Developme nt. Nowhere in his affidavit did Mr Keothaile
state that he was author ised to depose to the affidavit on behalf of the first
respondent (the Minister), nor did he set out how such authority was derived .
[6] Jn response, the applicants delivered a notice pursuant to Rule 7(1) of
the Uniform Rules of Court on 10 February 2025. The notice pertinently
disputed Mr Keothaile's authority to act on beha lf of the first respo ndent and
called upon him to furnish proof of such authority within ten days. No
response was ever received.
l 7] Rule 7( I) provides for the following:
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'(l) Subject to the provisions of subrules (2) and (3) a power of at1omey to act need not be
filed, but the authority of anyone acting on behalf of a party may, within ten days after it
has come to the notice of the party that such person is so acting, or with the leave of the
court on good cause shown at any time before judgment , be disputed, whereafter such
person may no longer act unless he satisfies the court that he is authorised to act, and to
enable him to do so the court may postpone the hearing of the action or application. '
[8] It is now well esta blished that this rule appli es not only to the authority
of an attorney but to the authority of anyone acting on behalf of a party. This
includes a deponent who purport s to deliver an affidavit on behalf of a litigant
who is not a natural person . Where such autho rity is challenged, the burde n
rests on the person so acting to satisfy the court that they are duly authorised.
[9] The locu s classicus on this point is the decision of the Supreme Court
of Appeal ('SCA') in Ganes and Another v Telecom Namibia Ltd 1. In that
case , the SCA held that it is irrelevant whet her a deponent had been authorised
to depose to an affidavit. The deponent to an affidav it in motion proc eedings
need not be authorised by the party concerned to depose to the affidav it. It is
the institution of the proceedings and the prosecution thereof which must be
authorised. The court stated:
'In my view, it is irrelevant whether Hanke had been authorised to depose to the founding
affidavit. The deponent to an affidavit in motion proceedings need not be authorised by
the party concerned to depose to the affidavit. It is the institution of the proceedings and
the prosecution thereof which must be authorised. '
[10] This approach has been followed in inter alia ANC Umvoti Council
Caucus and Others v Umvoti Municipality 2 and in this Division in Mahikeng
1
Canes and Anoth er " Telecom Namibia Ltd 2004 (3) SA 61 5 (SCA) para 19.
2
1
Canes and Anoth er " Telecom Namibia Ltd 2004 (3) SA 61 5 (SCA) para 19.
2
ANC Umvoti Council Caucus and Others v Umvoti Municipality (AR 392/2009) [2009] ZAKZ PI-IC
47;2010 (3) SA 3 1 (KZP) (25 September 2009).
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Local Municipality v Harri son3. The legal position is clear. Any challenge to
the authority to institute legal proceedings must be brought by way of Rule
7(1).
[11] In this case, the challenge was clear, unequivocal, and never answered.
The first respondent's counsel, Ms Seboko SC, candidly conceded during oral
argument that the failure to respond to the Rule 7 notice was embarrassing
and stated, 'I thought by now the Ru le 7 would have been responded to' . She
explai ned that a new attorney had recently come onto the record in the office
of the State Attorney and that she had assumed the issue had been resolved.
No exp lanat ion was offered for the failure of Mr Keothaile, or anyone else,
to place evidence before this Court establishing his authority. No application
for condonation for the late filing of such proof was made, nor was any
request for a postponement to rectify the defect.
[12] Applyi ng these principles to t he present matter , it is clear that the first
respondent failed to utilise the correct procedure. The authority of Mr
Keothaile was challenged. No response was forthcoming. In the absence of
any proof of authority , the answering affidavit must be treated as pro non
scripto. The first respondent's opposition to the application accordingly falls
away.
Contempt of court
3
Mahikeng Local Municipality v Harrison (M209 /2020) [202 1] ZANW I-IC 87 ( 14 April 202 1 ).
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[13] With the a nswering affidav it disregarded, the applicants' case against
the first respondent stands unch allenged. The applicants have esta blished
that:
(a) a valid court order was granted on 17 September 2020;
(b) the court order was served on the first respondent's atto rneys on
28 Septemb er 2020 and acknowledged by them;
(c) the first respon dent has failed to comp ly with paragraphs 3 and 4
of the court order, which directed the first respondent to designate the
Roodekuil Property and appoint a land title adjustment comm issione r
for the Bultfontein and Roodekuil proper ties within 60 days.
(14] There can be no genuine dispute that the first respondent was fully
aware of the court order. Not only was the court order served on the first
respo ndent's attorneys on 28 September 2020 and acknowledged by them,
but the first respondent thereafter took active steps to challenge it. On 16 Apr il
2021, the first respondent prosec uted an application for leave to appea I
against the jud gment of Stanton AJ. That application was dismissed on I 0
August 202 1. The first respon dent did n ot pursue any further appeal steps. A
litigant who seeks leave to appeal a court order cannot cred ibly claim
ignorance of its terms or obligat ions. The very act of challenging an order
presupposes know ledge of its existe nce a nd contents. The first respondent's
pursuit of leave to appea l, and its subsequent failure to take the matter further
on appea l, confirms that the first respondent was not only aware of the order
but also under stood its binding nature. This knowledge, coupled with the
adm itted non-compliance spann ing more than four years s ince the dismissal
of the appeal, lays a firm foundati on for this appli cation.
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[15] The requisites for contempt of court are well estab lished. In Fakie NO
v CCII Systems (Pty) Ltd4 , the SCA held that:
'(a) The civil contempt procedure is a valuable and important mechanism for securing
comp liance with court orders, and surv ives constitutiona l scruti ny in the form of a motion
court application adapted to constitutional requirements.
(b) The respon dent in such proceedings is not an 'acc used person' , but is entit led to
analogous protections as are appropr iate to motion proceedings.
(c) In particular , the applicant must prove the requisites of contempt (the order; serv ice or
notice; non-complianc e; and wilfulness and mala fides) beyond reasonable doubt.
(d) But once the applicant has proved the order, service or notice, and non-compliance, the
respondent bears an evidential burden in relation to wilfulness and mala tides: shou ld the
respondent fail to advance evidence that establ ishes a reasonable doubt as to whether non
compliance was wilful and mala fide, contempt will have been estab lished beyond
reasonab le doubt. '
[16] Once an applicant establ ishes the existence of a court order, service or
notice thereof, and non-compliance , an evidentiary burden shifts to the
respondent to show that the non-comp liance was not wilful or mala ftde.
Where, as here , the respondent fails to place any evidence before a court to
discharge this burden, the requisites for contempt are established 5.
[17] The first respondent has placed no such evidence before this Court.
There is no explanation for the years of delay. There is also no denial of
wilfulness.
4 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) para 42.
5
See also: Pheko and Others v Ekurhu/eni Metropoli1an Municipality 20 15 (5) SA 600 (CC) paras 36 - 37.
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Relief
[18] The applicants apply for a mandatory order compelling compliance
within 30 days, and a fine of R100 000.00 in the event of non-compliance .
This remedy is designed to coerce compliance and vindicate the authority of
this Court.
[19] In the paiiic ular circumstances of this matter, and having regard to the
fact that the first responde nt bears constitutional obligations to respect and
comply with court orders, I am not prepared to make a fina l finding of
contempt at this stage. My reluctance is largely due to Mr Keothai le's
intervention in this matter, casting doubt on whether the first respondent came
into personal knowledge of this application. Instead, I consider it just and
equitable to allow the first respondent to regularise this position. According ly,
I will grant the first respondent a period of 60 (court) days from the date of
personal service of the order emanating from this judgment upon the first
respondent to compl y fully with paragraphs 3 and 4 of the order ( of 17
Septembe r 2020). Shou ld the first respondent fa il to do so, the applicants have
the option to approac h this Comi on the same papers, duly supp lemented (if
necessary), for an order declaring the first respondent in contempt of court
and for such further relief as may be appropriate. This approach balances the
need to vindicate this Court's authority with the ultimate object of these
proceedings, which is compliance, not punishment.
Costs
[20] The app licants have been compelled to litigate to enforce the order that
should have been obeyed years ago. The first respondent's conduct has
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necessitated this appl ication and has wasted valuable judicial resources. A
punitive costs order is warranted.
[21] In relat ion to the second and third respondents, the applicants withdrew
the application against them without prejudice. In the absence of any
opposition, and given that they played no active part in the proceed ings
subsequent to the withdrawa l of their attorneys, it is just and equitable that
each party bear its own costs in respect of the proceedings against the second
and thi rd respondents . No order is made aga inst the fourth respondent.
Costs agai nst M r Keot haile
[22] A further cost considerat ion must be addressed. Mr Keothaile, the
deponent to the answering affidavit, purported to oppose this application on
behalf of the first respondent. He was served with a notice in terms of Rule
7(1) on 10 February 2025, disputing his authority to act. Althoug h he was
called upon to furnish proof of such authority within ten days, he did not
respond. No explanation has been offered for his silence. The first
respondent's counsel conceded during argument that the failure to respond
was 'embarrassing'.
[23] A deponent who purports to act on behalf of a party, and whose
authority is challenged, bears the obligation to satisfy the court that he or she
is duly authorised. The purpose of Rule 7(1) is to ensure that litigation is
properly authorised and that parties are not vexed by unaut horised persons
purport ing to act on their behalf. Mr Keothaile, as a senio r public official,
must have been aware of this requirement. His failure to respond to the Rule
7( 1) notice, and his persistence in opposing the appl ication without
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establishing his authority, const itute cond uct that falls squarely within the
category of gross negligence, which warrants a personal costs order.
[24] In Public Protector v South African Reserve Bank 6, the Constitutiona l
Court ordered the Public Protector to pay costs de bon is propriis for her
conduct in litigation. The Court found that her conduct was reck less and
grossly negligent, that she had failed to take reasonable steps to ensure that
the litigation was properly conducted and that she had ignored the rules of
Court. The court stated:
• [116] Both an award of personal costs and on an attorney and client scale against a
representative litigant req uires that a particular test be met and certain legal principles be
show n to apply and its requirements met. The test is gross negligence or bad faith in
connection with litigation or the fulfilment of public obligations. And the principles for
awarding costs on an attorney and client scale are frivolity, vexation or manifest
impropr iety. Apart from a passing reference to exceeding the bou nds of good faith and to
bias or its reaso nable apprehension, none was sought to be relied on and no explanation
was provided for how they were met. Only general statements of disapproval, conclusions
and even wrong legal principles were reflected. One such wrong principle was the
elevation of the Public Protector 's electron ic recordal of the meetings from a practice to a
legal requireme nt whose perceived breach must attract persona l costs even on a punitive
scale.
[ 117] It is harsh eno ugh to be ordered to pay costs on an attorney and client scale in a
representative capacity and even more so to have to pay normal costs out of one 's own
pocket as a representative litigant. It is devastati ngly punitive to ask of an ordinary salary
earner, acti ng as a represe ntative I itigant, to pay costs, no matter the percentage, out of her
own pocket on an attorney and client scale. Considerat ions of justice and equity dictate
own pocket on an attorney and client scale. Considerat ions of justice and equity dictate
that the legal basis for awarding such costs, appreciating their disastrous consequences,
must not only be correct ly identified. but how they find application in this case must also
6 /n Public Protector v South African Reserve Bank r20I91 ZACC 29.
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be properly explained. "Gross" negligence and "bad faith" had to be demonstrated and so
should the meeting of the test for imposing personal costs on an attorney and client scale
have been explained. That did not happen.·
[25] The Court further held that such an order serves to mark a court's
displeasure and to deter similar conduct in the future.
[26] Similarly, in Black Sash Trust v Minister of Social Development 1, the
Const itutional Couti held a cabinet minister personally liable for a portion of
the litigation costs . The Court found that the Minister 's failure to make full
disclosure to the Court, and her conduct in misleading the Court to protect
herse lf from the consequences of her behaviour, constituted gross negligence
warranting a personal costs order. In this regard , the court states as follows:
'The inference that she did not act in good faith in doing so is irresistib le. At best for her,
her conduct was reckless and grossly negligent. All that is sufficient reason for a persona l
costs order.'
[2 7] The court held that such an order is appropr iate to account for her
degree of culpability in misleading the court , conduct which is deserv ing of
censure by that court as a mark of displeasure, more so since she held a
position of responsibi lity as a member of the Executive 8.
[28] The conduct of Mr Keothaile mirror s that of the public offic ials in
Mkhwebane and Black Sash. By opposing this application withou t author ity,
and by ignor ing a Rule 7(1) notice that put him on express notice that his
authority was disputed, he forced the applicants to prepare for a contested
hearing that could not proceed on the merits. He wasted prec ious judicia l
7 Black Sash Trust v Minister of Social De1•elopment r20 I 81 ZACC 36 para 12.
8 Op cit, th 7 para 14.
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resources. His conduct was reckless and grossly negligent. It is deserving of
censure by this Court as a mark of displeasure. In the circumstances, there is
a stron g case for holding Mr Keothaile persona lly liable for a portion of the
costs of this application.
[29] However, before making a final determination on the exte nt of Mr
Keothaile's personal liability, it is just and equ itable to allow him to be heard
on this issue. The Constitutional Court in Mkhwebane and Black Sash
follow ed a similar process, allowing the public officia ls concerned an
opport unity to address the question of personal costs before a final order was
made. Accord ingly, Mr Keothaile shall be allowed to show cause why he
should not be ordered to pay 20% of the costs of this application de bonis
proprus.
Order
[30] ln the result, I make the follow ing order:
1. The application against the second and third responden ts is
withdrawn , and each party shall pay its own costs in relation to the
proceedings against the secon d and third respondents.
2. No order is made aga inst the fourth respo ndent.
3. The first respondent is granted a period of 60 (sixty) court days from
the date of personal serv ice of this order upon the first respon dent
to comp ly with paragraphs 3 and 4 of the order granted by this Court
under the above case number on 17 September 2020.
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4. The applicants are granted leave to approach this Court with duly
supplemented papers, if necessary, for an order declaring the first
respondent in contemp t of cou1i and for such further relief as may
be appropriate, in the event that the first respondent fails to comply
with paragra ph 3 of this order.
5. A rule nisi is hereby issued calling upon Mr Richard Goitseo ne
Keothaile to show cause on a date to be arranged why he should not
be ordered to pay 20(1/o of the costs of this applicat ion de bonis
propri is on the scale as between attorney and client, including the
costs of two counsel.
6. The costs of this rule nisi shall be costs in the cause.
M WESSELS
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAH1KENG
Appearances
For app licants
Instructed by
:Adv Van Nieuwenhuizen
:Adv Nxumalo
:Tshabalala Attorneys
:Johannes burg
:c/o Maree & Maree
:Mahikeng
For first respondent :Adv Seboko SC
Instructed by :State Attorneys
:Mmabatho
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