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[2026] ZAGPPHC 296
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Dinokeng Game Reserve Land Owners' Association and Others v Bon Cidre Property (Pty) Ltd and Others (2024-084969) [2026] ZAGPPHC 296 (23 March 2026)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: 2024-084969
1.
REPORTABLE: NO
2.
OF INTEREST TO OTHER JUDGES: NO
3.
REVISED: YES
DATE: 23 March 2026
SIGNATURE OF JUDGE:
In the matter between:
DINOKENG
GAME RESERVE LAND OWNERS’ ASSOCIATION
First Applicant
DINOKENG
MANAGEMENT ASSOCIATION
Second Applicant
DGR
GAME ENTERPRISES LTD
Third Applicant
and
BON
CIDRE PROPERTY (PTY)
LTD
First Respondent
ADRI
SCHWARZ
NO
Second Respondent
MICHAEL
SCHWARZ
NO
Third
Respondent
JUDGEMENT
H F OOSTHUIZEN AJ
INTRODUCTION
1.
The first applicant (“the
association”) is a voluntary association whose members are
owners of immovable properties
in the Dinokeng Game Reserve (“the
reserve”).
2.
On 16 April 2015, the association and the
first respondent concluded a written Dinokeng Land Incorporation
Agreement (“the
agreement”) in terms of which the first
respondent made its immovable property, portion 46 of the Farm
Welgevonden (“the
property”), available to the
association to be managed as part of the reserve, which is an open
ecosystem that allows for
free roaming of wildlife and dangerous
animals. The agreement provided for the dismantling of the existing
internal and external
fences on the property so that the whole of the
reserve could form part of a single fenced area.
3.
The agreement placed an obligation on the
first respondent to give six months’ written notice to the
association of its intention
to terminate the agreement.
4.
Clause 17.2.1 of the agreement provided
that the following should be completed by the termination date:
“
[T]he
[first respondent] shall, at its own cost, fence off the [property]
from the [reserve] on the basis that the new fence becomes
a
perimeter fence and is constructed according to the same
specifications as the perimeter fence to which the new fence now
becomes
part. If the [property] is situated on the perimeter of the
[reserve], any such new fence erected by the [first respondent]
shall,
in the absence of agreement, become the property of [the
second applicant]. Unless agreed to by the Association, where the old
perimeter fence cost more than the new fence then the difference in
the cost shall be paid to [the second applicant]
.”
5.
On 18 February 2021, the first respondent
gave notice to the association of its intention to terminate the
agreement but it failed
to comply with its obligations in terms of
clause 17.2.1 of the agreement.
6.
On 30 July 2024, the association instituted
an application against the first respondent (“the first
application”) to
enforce its rights in terms of clause 17.2.1
of the agreement.
7.
On 12 November 2024, Van der Schyff granted
an order against the first respondent in the first application (“the
order”)
in the following terms:
“
In
terms of clause 17.2.1 of the [agreement] the [first] Respondent
fence- of its land, at its own cost, from the … Reserve
.”
8.
Due to the failure of the first respondent
to comply with the order, the applicants instituted a contempt
application on 14 March
2025.
LEGAL PRINCIPLES
9.
The
relevant legal principles pertaining to a contempt application was
summarised as follows by Cameron JA (as he then was) in
Fakie
NO v CCII Systems (Pty) Ltd
:
[1]
“
(a)
The civil contempt procedure is a valuable and important mechanism
for securing compliance with court orders, and
survives
constitutional scrutiny in the form of a motion court application
adapted to constitutional requirements.
(b)
The respondent in such proceedings is not an ‘accused person’,
but is entitled to a analogous
protections as are appropriate to
motion proceedings.
(c)
In particular, the applicant must prove the requisites of contempt
(the order; service or notice; non-compliance;
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 fides: Should the respondent fail to advance
evidence that establishes
a reasonable doubt as to whether
non-compliance was wilful and mala fide, contempt will have been
established beyond reasonable
doubt.
(e)
A declarator and other appropriate remedies remain available to a
civil applicant on proof on a balance
of probabilities.
”
10.
The
following
dictum
in
Fakie
[2]
is relevant insofar as the requirement of wilfulness and
mala
fides
is
concerned:
“
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, 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).
”
DISCUSSION
11.
The first three requirements for contempt,
namely the order, notice of the order and non-compliance, are common
cause. Although
the order did not stipulate when the first respondent
was obliged to fence-off the property from the reserve, the parties
are in
agreement that the first respondent was obliged to do so
within a reasonable period of time and that a reasonable period of
time
had expired by the time of the institution of this application.
12.
The first respondent denies that
non-compliance with the order was wilful and
mala
fide.
Although the first respondent
proffers various reasons why it has failed to comply with the order,
it is only necessary to deal
with one of the reasons.
13.
Although it was not mentioned in the first
application, it is common cause that a servitude of right of way in
favour of the general
public is registered over the property on the
western boundary of the property. A survey plan of the property which
reflects the
servitude road is annexed to the answering affidavit,
marked “
AA3”
.
14.
The applicants contend that the fence
between the property and portion 45 of the Farm Welgevonden should
not be on the cadastral
boundary between the two properties but that
the fence should be on the eastern boundary of the servitude road.
The servitude road
would, on the applicant’s interpretation of
the order, be inside the reserve after the property has been
fenced-off.
15.
The applicants in this regard stated in
paragraph 12.1 to 12.3 of the replying affidavit that the first
respondent is obliged to
“
fence
out parallel to the road
” and not
“
across the servitude road
”
and that “
[i]t remains patently
clear that the First Respondent’s is to fence of parallel to
the servitude road, thereby manifesting
as its demarcation and
independence from the … Reserve
”.
16.
In an email by the applicants’
attorney to the third respondent on 13 November 2024 (the day after
the granting of the order),
the applicants’ stance was
enunciated as follows:
“
[Y]ou
have previously provided an undertaking that you will not fence out
across the servitude road, however, should you do so we
will bring an
urgent court application against you as this servitude road is a
general servitude for the public…
Without
belabouring the point for the 100
th
time the servitude does not “belong” to you it is not
your road and you cannot lay claim to it as has been the case.
You
were aware of the road when you bought the property and cannot claim
ignorance now. Should you in any way restrict the use
of the road or
prevent the maintenance of the road we will have no alternative but
to approach the court for an interdict at your
costs
.”
17.
The first respondent contends that the
dispute where the fence should be situated prevented it from
complying with the order. It
testifies that it attempted to resolve
the dispute by contacting the local authority and proposes that the
dispute be resolved
by mediation or arbitration, as provided for in
the agreement. It indicates that should it erect the fence on the
boundary between
the property and the reserve and its interpretation
of the order is incorrect, it would incur substantial costs to remove
the fence
and face litigation as threatened by the applicants.
18.
During argument, the question where the
fence should be situated, turned out to be the major dispute between
the parties which requires
resolution to ensure compliance with the
order. The parties were in agreement that it would be proper for the
Court to interpret
the order and grant a clarification order if
necessary.
19.
In
Democratic
Alliance in re Electoral Commission of South Africa v Minister of
Co-Operative Governance
[3]
the Constitutional Court referred to the “
modern
approach
”
to interpretation of court orders:
“
The
order with which a judgement concludes has been described as the
“executive part of the judgement”, because it defines
what the court requires of the parties who are bound by it. For this
reason, it was said in Ntshwaqela that although the order
must be
read as part of the entire judgement, and not as a separate document,
the order’s meaning, if clear and unambiguous,
cannot be
restricted or extended by anything else stated in the judgement. The
modern approach is not to undertake interpretation
in discrete stages
but as a unitary exercise in which the court seeks to ascertain the
meaning of a provision in the light of the
document as a whole and in
the context of admissible background material. This principle applies
to the interpretation of court
orders, as decisions of this Court
make plain.
”
20.
In view of the fact that the order was
granted in the unopposed motion court, no judgement or reasons were
provided by Van der Schyff
J. The only admissible background material
on which reliance can be placed is accordingly the founding affidavit
in the first application
which contains no reference to the servitude
road.
21.
The words “
fence-off
its land … from the … Reserve
”
is clear and unambiguous and can only have one meaning, namely that
the fence must be on the cadastral boundary between
the property and
the reserve.
22.
It accordingly follows that the applicants’
interpretation of the order is incorrect.
23.
The existence of the dispute means that the applicants have
failed to prove wilfulness and
mala fides
beyond reasonable
doubt. I cannot find that the first respondent did not genuinely
(although mistakenly) believe to be entitled
to act in the way it
did.
24.
During argument, Ms van der Westhuizen, who
acted on behalf of the applicants, conceded that the applicants are
not entitled to
a contempt order and accordingly sought an order that
the first respondent complies with the order within 30 days.
25.
The applicants in addition sought the
following relief (as enunciated in a draft order which was uploaded
to CaseLines after the
completion of argument):
“
The
first respondent should comply with … clause 17.2.1 of the …
Agreement by installing cattle grids to the exits
of the perimeter
fences which grids are to comply with the Gauteng Department of
Agriculture Big 5 Specifications
.”
26.
I am not prepared to grant this relief for
the following reasons:
26.1.
No such relief is sought in the notice of
motion.
26.2.
The affidavits in the application did not
deal with this aspect.
26.3.
Clause 17.2.1 of the agreement merely
provides that the new fence must be “
constructed
according to the same specifications as the perimeter fence to which
the new fence now becomes part
”.
There is no reference in clause 17.2.1 to “
cattle
grids
” which must “
comply
with the Gauteng Department of Agriculture Big 5 Specifications”
.
COSTS
27.
Although the respondents are substantially successful in that
I cannot find beyond reasonable doubt that the first respondent’s
non-compliance with the order was wilful and
mala fide
and I
have found that the first respondent’s interpretation of the
order is correct, I am not prepared to grant a costs order
in the
respondents’ favour.
28.
The fact remains that the first respondent
has failed to comply with the order. It should either have complied
with the order (in
accordance with its interpretation thereof, which
was correct) or it should have approached the court for
clarification.
29.
The
following was in this regard held by the Constitutional Court in
Municipal
Manager, OR Tambo Municipality v Ndabeni
:
[4]
“
[24] This court
in State Capture
[5]
reaffirmed
that irrespective of their validity, under s 165(5) of the
Constitution, court orders are binding until set aside.
Similarly, Tasima held that wrongly issued judicial orders
are not nullities.
[6]
They
are not void or nothingness, but exist in fact with possible legal
consequences. If the judges had the authority to make
the
decisions at the time that they made them, then those orders would be
enforceable.
[25] To distinguish
the role of the litigants from the courts, the majority
in Tasima said:
'The act of proving
something irresistibly implies the presence of a court. It is
the court that, once invalidity is proven,
can overturn the
decision. The party does the proving, not the disregarding. Parties
cannot usurp the court's role in making legal
determinations.'
[7]
[26] Court orders are
effective only when their enforcement is assured. Once court
orders are disobeyed without consequence,
and enforcement is
compromised, the impotence of the courts and the judicial authority
must surely follow. Effective enforcement
to protect the Constitution
earns trust and respect for the courts. This reciprocity
between the courts and the public is
needed to encourage compliance,
and, progressively, common constitutional purpose.
”
30.
I am accordingly of the view that it is just and equitable
that the parties pay their own costs.
31.
A
similar costs order was granted under the same circumstances in
Mphahlele
v The South African Board for Sheriffs
.
[8]
Labuschagne J dismissed the orders pertaining to contempt of court on
the basis of the Board for Sheriffs’ subjective belief
that the
relevant court order was suspended by an application for leave
to appeal and that the court order was moot. The
learned Judge held
that the Board for Sheriffs should have challenged the court order
head-on in court proceedings, in which event
the contempt application
would not have been necessary.
ORDER
32.
In the premises I grant the following
order:
32.1.
The first respondent is ordered to comply
with the order of Van der Schyff J, dated 12 November 2024, within 30
days of service
of this order on the first respondent by fencing-off
its property, at its costs, from the Dinokeng Game Reserve in terms
of clause
17.2.1 of the Dinokeng Land Incorporation Agreement, which
agreement was concluded between the first applicant and the first
respondent
on 16 April 2015.
32.2.
The fence between the first respondent’s
property and portion 45 of the Farm Welgevonden must be erected on
the cadastral
boundary between the two properties as depicted from
46A to 47B on the survey plan which is attached to the answering
affidavit,
marked “
AA3”
.
32.3.
All parties will bear their own costs.
HF
OOSTHUIZEN AJ
ACTING
JUDGE OF THE HIGH COURT
This
judgement was handed down electronically by circulation to the
parties’ and or parties’ representatives by email
and by
being uploaded to CaseLines.
Appearances
Counsel
for the First to Third Applicants:
Adv M
van der Westhuizen
instructed
by Gildenhuys Malatsi Inc
Counsel
for the First to Third Respondents:
Adv L
J Lowies
instructed
by Jacques van der Merwe Attorneys
Date
of Hearing:
29
January 2026
Date
of Judgement:
23
March 2026
[1]
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) par [42]
[2]
Par
[9]
[3]
2022
(1) BCLR 1
(CC) para [12]
[4]
2023 (4) SA 421 (CC)
[5]
Secretary,
Judicial Commission of Enquiry into Allegations of State Capture v
Zuma
2021
(5) SA 327
(CC) par 59
[6]
Department
of Transport v Tasima (Pty) Ltd
2017 (2) SA 622
(CC) par 182
[7]
Department
of Transport v Tasima (Pty) Ltd
s
upra
par
191
[8]
Unreported judgement. 24 February 2026. Case number
2025-245823