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2026
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[2026] ZANWHC 106
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Sibanye Stillwater Limited and Others v Head of Correctional Centre - Losperfontein and Others (2025/246406) [2026] ZANWHC 106 (1 April 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
WEST DIVISION MAHIKENG
Case No: 2025-246406
Reportable:
NO
Circulate
to Judges:
NO
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
In
the matter between:
SIBANYE
STILLWATER LIMITED
FIRST APPLICANT
EASTERN
PLATINUM LIMITED
SECOND APPLICANT
WESTERN
PLATINUM (PTY) LTD
THIRD APPLICANT
And
THE
HEAD OF CORRECTIONAL CENTRE:
LOSPERFONTEIN
FIRST RESPONDENT
TSHEPO
HOPE MOLAOLE
SECOND RESPONDENT
THE
MINISTER OF CORRECTIONAL SERVICES
STATION
COMMANDER: MOOINOOI
THIRD RESPONDENT
SOUTH
AFRICAN POLICE SERVICES
FOURTH RESPONDENT
Coram
:
Makolomakwe AJ
Date
of hearing:
6 March 2026
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives via email. The date and time
for
hand-down is deemed to be 16h00 on 01 April 2026.
ORDER
[1]
The following order is granted:
1.1
Section 39(1)
of the
Correctional Services Act 111 of 1998
is not applicable to sentences
of incarceration imposed for civil contempt;
1.2 The second
respondent`s 60 day period of imprisonment, imposed by this Court,
per Tsautse AJ, on 19 September 2025, under case
number 3875/2025
will only commence and take effect from the day on which the second
respondent is admitted to the
Losperfontein, Correctional Centre.
1.3 The first respondent
is directed to receive the second respondent and keep him in custody
until he has served his 60 day period
of imprisonment.
1.4 The third respondent
is ordered to pay the costs of this application on party and party
basis on Scale B.
JUDGMENT
MAKOLOMAKWE,
A J
Introduction
[2]
The applicants are seeking an order declaring that paragraph 3 of the
contempt of
court order, properly interpreted, requires the Head of
Losperfontein Correctional Centre to admit Mr. Molaole, and to keep
him
in custody for a period of 60 days, notwithstanding that more
than 60 days has passed since the grant of the contempt of court
order. The application is opposed by the respondents, except the
second respondent.
Background
[3]
The first applicant is Sibanye Stillwater Ltd (“Sibanye”),
with registration
number: 2014/243852/06, a private company duly
registered and incorporated in accordance with the company laws of
the Republic
of South Africa. The second applicant is Eastern
Platinum Ltd (“Eastern Platinum”), with registration
number: 1987/070294/07,
a private company duly registered and
incorporated in accordance with the company laws of the Republic of
South Africa. The third
applicant is Western Platinum (Pty) Ltd
(“Eastern Platinum”), with registration number:
1987/070294/07, a private company
duly registered and incorporated in
accordance with the company laws of the Republic of South Africa.
[4]
The first respondent is the Head of Correctional Centre:
Losperfontein, Brits, North
West (“the Head of Losperfontein”),
in his official capacity as the correctional services official
designated by the
National Commissioner to manage and control
Losperfontein. The second respondent is Tshepo Hope Molaole
(“Molaole”).
The third respondent is the Minister of
Correctional Services. The fourth respondent is the Station Commander
at Mooinooi Police
Station of the South African Police Services
(“SAPS Mooinooi”)
[5]
On 5 September 2025, this Court, as per Hendricks JP, granted an
order (“Interdict
Court Order”) in which the first
respondent and its members, the second respondent and any other
person acting in association
with them and/or on their behalf and or
on their instruction are interdictor from amongst others, interfering
in any way with the
mining and business operations of the applicants.
[6]
On 19 September 2025, this Court, as per Tsautse AJ, granted an order
against the
second respondent in this matter and other parties who
are not before this Court. In the following terms:
‘
[1] THAT: The
First and Second Respondents are declared to be in contempt of the
court order granted by the Honourable Mr Justice
President Hendricks
on 05th of September 2025.
[2] THAT: The First
Respondent shall pay a fine of R25 000, which fine shall be paid to
the Registrar of this Court within 14 days
of this order.
[3] THAT: The Second
Respondent is imprisoned for a period of 60 days.
[4] THAT: The Station
Commander of the South African Police Services for the District of
Mooinooi is directed to execute the order
in terms of paragraph 3 and
above and is directed to arrest, to take into custody and detain the
Second respondent for the period
referred to in paragraph 3 above.
[5] THAT: The costs of
this application, including the cost of two counsel, to be paid by
the respondents, jointly and severally,
in one paying the others to
be absolved, on scale B.’
[7]
On 8 October 2025, a Writ of Commitment for Contempt of Court (“Writ
of Contempt”)
was issued by this Court. In terms of paragraph 4
thereof the Sheriff and the fourth respondent were directed to take
the second
respondent to “the keeper of the prison” of
the district in which he will be found and to be safely kept until
the
expiration of 60 days imposed in paragraph 3 of the court order
dated 9 September 2025.
[8]
On 9 October 2025, 15 October 2025 and 9 December 2025 the second
respondent was arrested
by members of SAPS Mooinooi. The Sheriff
accompanied him to Losperfontein Correctional Centre to hand over the
second respondent
in order to serve his sentence. Correctional
Services officials and the first respondent refused to receive him.
The members of
SAPS Mooinooi, released him. Until today he has not
served that sentence.
Points
in Limine
[9]
The respondents raised the following points
in
limine
in the answering affidavit: urgency non-compliance with Rule 41A of
the Uniform Court rules; non-compliance with Regulation 4(1)
of
Regulations promulgated in terms of the Justices of the Peace and
Commissioners of Oaths Act;
[1]
and lack of authority to depose to an affidavit to institute urgent
proceedings against the respondents.
Pertaining
Urgency
[10]
On 9 December 2025 the matter was postponed to 6 March 2026 to the
opposed roll for hearing after
the respondents filed a notice of
intention to oppose. The issue of urgency fell away. At the
commencement of the hearing both
counsels confirmed that position.
Pertaining
non-compliance with Regulation 4(1) of Regulations promulgated in
terms of the Justices of the Peace and Commissioners
of Oaths
[11]
During the hearing, counsel for the respondents informed this Court
that it will not pursue the
above point as it was addressed in the
confirmatory affidavit of Commissioner of Oath annexed to the
replying affidavit.
Pertaining
non- Compliance with Rule 41A of the Uniform Rules
[12]
It was argued on behalf of the respondents that the applicant did not
serve a notice required
by Rule 41A. Further, that the matter be
struck off roll for non- compliance with that said rule. It was
contended on behalf of
the applicant that prior to issuing this
application emails were sent to the official email address of the
first respondent and
to another official of Losperfontein
Correctional Centre, in order to resolve the dispute between them,
but no response was received.
[13]
In terms of Rule 41A (2) (a), the applicant is obliged to serve a
notice indicating whether it
agrees to or opposes referral of the
dispute to mediation. It is common cause that the applicant did not
comply with this rule.
[14]
According to the founding affidavit
1
dated 3 December
2025, a letter attached to the founding affidavit was addressed to
the first respondent requesting a written undertaking
that the second
respondent will receive into custody until he has served his sentence
and also referring to a letter dated 20 November
2025. The first
respondent did not dispute that correspondences were sent by the
applicants, but stated that it did not reach him.
[15]
The contents confirm the submissions made on behalf of the applicants
that the correspondence
was sent to Losperfontein Correctional Centre
prior to the issuing of this application. According to the answering
affidavit,
[2]
the dispute
between the parties is the manner in which the detention warrant was
completed and administered by the fourth respondent
and not the
interpretation of the order granted on 19 September 2025.
[16]
It is trite law that in motion proceedings the parties stand and fall
by their papers. See
NDPP
v Zuma
.
[3]
The submission by counsel for the respondent that the refusal to
receive the second respondent was due to the wording of the court
order granted on 19 September 2025 and that the applicant refused to
co-operate in having it corrected, is not in line with the
answering
affidavit. The respondents have to fall and stand by their papers.
[17]
The correction of the manner in which the detention warrant was
completed and administered by
the fourth respondent did not require
any co-operation from the applicant. Instead, it required the first
and fourth respondents
to co-operate with each other for mediation
before this application was issued, after it was postponed to the
opposed roll and
before the date of hearing.
[18]
In
Fakie N.O. v CCII Systems (Pty) Ltd
2
the
Supreme of Appeal stated the following:
‘
While civil
contempt is considered a “peculiar amalgam” (a civil
proceeding invoking a criminal sanction), it does not
need to follow
the same formal, Criminal Procedure as a J7 or SAP 69, which are
designed for arrests in criminal trials.’
[19]
In
National
Commissioner of Correctional Services v Democratic Alliance
[4]
the Supreme Court of Appeal confirmed that when a court issues a
warrant of committal for contempt, the court order itself is the
final, valid document for detention, regardless of the absence of
traditional, preliminary criminal procedures.
[20]
In the present matter the first respondent refused to receive the
second respondent and insisted
on the formal, Criminal Procedure or
traditional, preliminary criminal procedures of J7 or SAP 69. The
fourth respondent and or
members of SAPS, Mooinooi completed J7 or
SAP 69, but the first respondent refused to receive the second
respondent and raised
the issue of dates.
[21]
It is clear from the above SCA decisions that there was no need for
the first respondent to insist
on compliance with the formal,
preliminary criminal procedures of J7 or SAP 69 as the court order of
Tsautse AJ itself is the final,
valid document for detention of the
second respondent. The reasons provided by the first respondent for
refusing to receive the
second respondent demonstrates his
interpretation of the procedure, including the applicable section of
the
Correctional Services Act, applicable
to the detention of the
second respondent.
[22]
I agree with the submission on behalf of the applicant that mediation
was not impossible. Having
regard to the aforementioned, the point
in
limine
stands to be dismissed.
Pertaining
lack of authority to depose to the Founding Affidavit to institute
Urgent proceedings against the Respondents.
[23]
The point raised in the answering affidavit
[5]
is that the application is defective due to failure in the founding
affidavit to state of the following: that the deponent is duly
authorised to act on behalf of the applicants nor authorised to
depose to the affidavit and how the facts of this matter came to
be
within her personal knowledge. The contention on behalf of the
applicant is that the deponent to an affidavit is a witness and
need
not be authorised.
[24]
Both counsel relied in the case of
Ganes and Another v Telkom
Namibia Ltd
The Supreme Court of Appeal stated the position
regarding authority to depose to the affidavit in motion proceedings
as follows:
‘
. . .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 which must be authorised.’
[6]
[25]
The above authority supports the submission on behalf of the
applicant. Applying that principle
to the present matter, I find that
it is irrelevant whether the deponent of the founding affidavit in
the present matter was authorised
or not. Further, that it is
irrelevant how the facts of this matter came to be within the
personal knowledge of that deponent.
The averments in the founding
affidavit that the second respondent was arrested, taken to
Losperfontein Correctional Centre more
than once and the officials of
Correctional Services refused to receive him, are confirmed in the
answering affidavit and therefore
common cause between the parties.
[26]
Having regard to the aforementioned, the point raised stand to be
dismissed as it is the institution
of the proceedings and the
prosecution thereof that has to be authorised.
Analysis
[27]
Counsel for the respondent confirmed what is stated in the answering
affidavit that the relief
sought by the applicant, except costs, will
not be opposed in the event of dismissal of the points
in limine
.
Having dismissed the points
in limine
, I grant the unopposed
relief in the notice of motion.
Costs
[28]
The general rule is that the successful party is entitled to costs.
The applicant is successful
and is entitled to costs. The submissions
on behalf of the applicant is that the third respondent be ordered to
pay punitive costs
order for refusing to enforce a court order.
Further, that costs
de bonis propiis
be granted against the
attorneys of the respondents for making unwarranted averments about
the Commissioner of Oath of the founding
affidavit.
[29]
It was argued on behalf of the respondents that there is no basis for
granting that order as
the attorneys are entitled to raise the point
in the manner they deem fit and same has been corrected. A
general rule is
that in order to justify a personal order for costs
against a litigant occupying a fiduciary capacity, his conduct in
connection
with the litigation in question must have been
mala
fide
, negligent or unreasonable. See
Vermaak`s Executor v
Vermaak Heirs
3
.
[30]
In the present matter the shortcomings raised in the answering
affidavit were corrected in the
replying affidavit and the
confirmatory affidavit of the Commissioner of Oath was annexed. I do
not find the conduct of the respondent`s
attorneys to be mala fide,
negligent or unreasonable and will not grant costs de bonis prospiis.
[31]
Further, I find the first respondent`s interpretation of the
procedure applicable to the detention
of the second respondent not
vexatious and/or frivolous. I find that an appropriate costs order is
that the third respondent be
ordered to pay costs on party and party
basis on Scale B.
Order
[32]
Consequently, I made the following order:
1.1
Section 39(1)
of the
Correctional Services Act 111 of 1998
is not applicable to sentences
of incarceration imposed for civil contempt;
1.2 The second
respondent`s 60 day period of imprisonment, imposed by this Court,
per Tsautse AJ, on 19 September 2025, under case
number 3875/2025
will only commence and take effect from the day on which the second
respondent is admitted to the
Losperfontein, Correctional Centre.
1.3 The first respondent
is directed to receive the second respondent and keep him in custody
until he has served his 60 day period
of imprisonment.
1.4 The third respondent
is ordered to pay the costs of this application on party and party
basis on Scale B.
L
MAKOLOMAKWE
ACTING
JUDGE
NORTH
WEST DIVISION, MAHIKENG
APPEARENCES
Date
of Hearing
06 March 2026
Judgment
Handed down
01 April 2026
For
the Applicant
Adv I Oshman
For
the Respondent
Adv S K Lekitima
[1]
Paragraph 29.
[2]
NDPP v Zuma 2009 (2) SA277 (SCA).
[3]
[2006] ZASCA 52
, at paragraph 8.
[4]
Paragraphs 12.1 and 12.4.3.
[5]
2004 (3) SA 615
SCA, at paragraph 19.
[6]
1909 TS 879.