1
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE )
REPORTABLE: YES/NO (1)
(2)
(3)
OF INTEREST TO THE JUDGES: YES/NO
REVISED: YES/NO
VAN WYK ASL (AJ)
SIGNATURE
In the matter between:
SAND HAWKS (PTY) LTD
REG NO: 1999/010163/07
and
7 April 2026
CATE
65 TWIN PROPERTY2 (PTY) LTD
RBP SECURITY SERVICES
POLOKWANE LOCAL MUNICIPALITY
NETWORTH PROPERTIES (PTY) LTD
MINISTER OF POLICE
THE SHERIFF POLOKWANE
PHUMUDZO CONSOLIATION MAPHIRI
LETLADI MOLOTO
CASE N2: 1454/2025
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
SIXTH RESPONDENT
SEVENTH RESPONDENT
EIGHTH RESPONDENT
2
JUDGMENT
VAN WYK ASL {AJ):
INTRODUCTION
[1] Central to this application, the applicant, Sand Hawks (Pty) Ltd, applied to this
Court on an urgent basis on 18 June 2025, seeking inter a/ia that the first,
second, seventh, and eight respondents be declared in contempt of the order
issued Makoti AJ delivered on 18 February 2025 under case number
1454/2025. The applicant furthermore applied for ancillary relief relating to
and flowing from the purported contempt complained of.
[2] In determining whether the respondents referred to in paragraph 1 above are in
contempt of the court order by Makoti AJ as aforesaid and whether the
applicant is entitled to the ancillary relief relating to- and flowing from the
contempt complained of the history of this matter and previous litigation are
interrelated and connected with such determination.
[3] The succinct history of the matter is as follows:
3.1 The third respondent is the registered owner of the immovable property
known as the Undivided Portion of the Remainder of the Farm
3
Krugersburg 933 LS.
3.2 On the conspectus of the affidavits filed, it is either common cause or
not disputed, that the applicant was previously in occupation of the third
respondent's immovable property as described in paragraph 3.1 above
for more than 18 years in accordance with lease agreement(s) and the
subsequent renewals thereof.
3.3 The lease agreement between the applicant and the third respondent
terminated by effluxion of time and after a further five- year period the
parties continued with the lease on a month-to-month basis. On 28
August 2023 the third respondent issued a letter to the applicant
notifying it of its intention to cancel the lease with one month's notice.
Pursuant to the applicant receiving the notice of termination, the
applicant requested a 12-month extension, which extension was
granted to the applicant by the third respondent. The applicant was to
vacate the third respondent's immovable property on 14 September
2024.
3.4 The third respondent issued a notice for proposals from third parties
interested in leasing its immovable property. Following an eight-week
4
period to submit such proposals/tenders, same was received by the
third respondent and it entered into a notarial agreement with the
successful bidder, the fourth respondent "Networth Properties (Pty)
Ltd". The fourth respondent subleased the immovable property to the
first respondent.
3.5 On the applicant's version, when the lease agreement terminated it
enforced its security and enrichment lien for improvements made to the
third respondent's immovable property and as a result thereof the
applicant refused to vacate the immovable property until it was
reimbursed for such improvements. The applicant instituted claim for
these approvements against the third respondent under case number
10620/2024 which claim is sub-judice in this court. Although this is not
an issue for determination before me, I must emphasize that the
applicant in any event does not possess a retention or security lien over
rural land (rural immovable property) premised on the common law
(placaeten).
3.6 The applicant, at least until 11 February 2025, remained in peaceful and
undisturbed occupation and possession of the third respondent's
immovable property. On the 11 th of February 2025, the first and second
5
respondents spoliated and unlawfully dispossessed the applicant from
its possession.
3.7 On 18 February 2025, Makoti AJ granted a spoliation order in favour of
the applicant in terms whereof the applicant's possession and
occupation of the immovable property be restored ante omnia.
3.8 On 19 February 2025, the third respondent approached the urgent court
without notice to the applicant and obtained an ex parte eviction order
against them before Mathabathe AJ.
3.9 The applicant, upon being served with the ex parte order, instituted an
urgent reconsideration application to be heard within 48 hours. This
application was set down for hearing before Diamond AJ, who in turn
removed the matter from the urgent court roll and issued a directive,
directing the applicant to approach the office of the Judge President to
obtain and secure a preferential date for hearing of the application.
6
3.10 The reconsideration application was heard on the 26th of March 2025
before Mashifane AJ. The judgement was delivered on 25 April 2025 in
this regard. He held that the application for reconsideration lost its
urgency once removed from the urgent court's roll notwithstanding that it
was allocated in accordance with a d irective issued by the Judge
President. In conclusion he found that the applicant could not utilize the
reconsideration procedure contemplated in Rule 6(12)( c) any longer and
ought to have premised its relief in accordance with Rule 6 (8)
(anticipation).
3.11 The applicant proceeded to oppose the relief prayed for by the third
respondent. The initial return date was set for 13 May 2025. Thereafter
the matter was postponed and the rule nisi extended to the 7th of
October 2026.
3.12 The applicant, on an urgent basis, anticipated the rule nisi as aforesaid
to 3 June 2025. The application was set down for hearing before Bresler
AJ. On 9 June 2025 Bresler AJ discharged the rule n isi issued on 19
February 2025, dismissed the application in its entirety and ordered the
first, third and fourth respondents to pay the costs on an attorney and
client scale including the costs occasioned by the appointment of two
7
counsel, jointly and severally, the one paying the other to be absolved.
3.13 In her Judgment, Bresler AJ held that the current de facto position is that
the eviction order was duly executed. The property is fenced off and has
an access gate to which the applicant had no access.
3.13 On 10 June 2025, the First respondent filed and served an application
for leave to appeal against the whole judgement and orders of Bresler
AJ. I am aware that leave the application for leave to appeal was
refused on 3 July 2025.
3.14 Following the discharge of the rule n isi and dismissal of the eviction
application, the applicant approached this court for an order declaring
the first, second, seventh and eight respondents in contempt of the
order issued by Makoti AJ delivered on 19 February 2025.
[4] During argument I ruled that the matter was urgent and that I intend to deal
with the merits of the application. I regard contempt of court proceedings
inherently urgent, specifically when consideration is given to all the facts
8
contained in the affidavits filed by the parties.
The law
[5] In Fakie N.O. v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA
326 (SCA) at para 41 and 42 Cameron JA (as he then was)
explained that once an applicant in contempt proceedings has proved the
order, service or notice, and non-compliance the respondent bears an
evidential burden in relation to wilfulness and ma/a tides. He held further that:
"Should the respondent fail to advance evidence that establishes a
reasonable doubt as to whether non-compliance was wilful and ma/a tide,
contempt will have been established beyond reasonable doubt". I regard
contempt of court proceedings inherently urgent, specifically when
consideration is given to all the facts contained in the affidavits filed by
the parties.
[6] In Pheko and Others v Ekurhuleni Metropolitan Municipality (No2) 2015
95) SA 600 (CC) the Constitutional Court, with reference to Fakie, held that:
"[1 J The rule of law, a foundational value of the Constitution, requires the
9
dignity and the authority of court to be upheld. This is crucial, as the
capacity of the courts to carry out their functions depends on it. As
the Constitution commands, orders and decisions issued by a court
bind all people to whom and organs of state to which they apply, and
no person or organ of state may interfere, in any manner, with the
functioning of the courts. It follows from this that disobedience
towards court orders or decisions risks rendering our courts impotent
and judicial authority a mere mockery. The effectiveness of court
orders or decisions is substantially determined by the assurance that
they will be enforced.
[2] Courts have the power to ensure that their decisions or orders are
complied with by all and sundry, including organs of state. In doing
so, courts are not only giving effect to the rights of the successful
litigant but also and more importantly, by acting as guardians of the
Constitution, asserting their authority in the public interest. It is thus
unsurprising that courts may, as in the position in this case, raise the
issue of civil contempt of their own accord"
" a respondent in contempt proceedings, Fakie said, is not an 'accused
person' as envisioned by s 35 of the Constitution, and the protections
afforded to a contemnor should not supersede the capacity of a non-state
10
litigant who may not have the administrative might to establish motive.
Therefore, the presumption rightly exists that when the first three
elements of the test for contempt have been established, ma/a tides and
wilfulness are presumed unless the contemnor is able to lead evidence
sufficient to create reasonable doubt as to their existence."
[7] Considering that the applicant elected to bring the application by way of
motion proceedings the normal principles applicable to adjudication of
applications applies. This was confirmed in Fakie as follows:
" [55] That conflicting affidavits are not a suitable means for determining
disputes of fact has been doctrine in this court for more than 80
years. Yet motion proceedings are quicker and cheaper than trial
proceedings and, in the interests of justice , courts have been at
pains not to permit unvirtuous respondents to shelter behind
patently implausible affidavit versions or bald denials. More than 60
years ago, this Court determined that a Judge should not allow a
respondent to raise fictitious disputes of fact to delay the hearing of
the matter or to deny the applicant its order. There had to be a
bona tide dispute of fact on a material matter'. This means that an
uncreditworthy denial, or a palpably implausible version, can be
rejected out of hand, without recourse to oral evidence. In Plascon-
11
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd, this Court
extended the ambit of uncreditworthy denials. They now
encompassed not merely those that fail to raise a real, genuine, or
bona tide dispute of fact but also a/legations or denials that are so
far-fetched or clearly untenable that the Court is justified in
rejecting them merely on the papers."
[8] In Eskom Holdings SOC Limited v Matjhabeng Local Municipality and
Others (A60/2024) [2025] ZAFSHC 400 the following was said in para 10
thereof:
"[1 O] There is an out for an Applicant, sans proof of willfulness beyond
reasonable doubt. In Pheko and Others v Ekurhuleni Metropolitan
Municipality (No 2), the court said:
'However, where a court finds a recalcitrant litigant to be possessed
of malice on balance, civil contempt remedies other than committal
may still be employed. These include any remedy that would ensure
compliance, such as declaratory relief, a mandamus demanding the
12
contemnor to behave in a particular manner, a fine and any further
order that would have the effect of coercing compliance.'
[9] In The President of t he Republic of South Africa v DA and Others 2018
ZASCA 79 paras 11 and 12 said the following as regards mootness:
" The question of mootness of an appeal has featured repeatedly in
this and other courts. The cases demonstrate that a court hearing
an appeal would not readily accept an invitation to adjudicate on
issues that are of 'such a nature that the decision sought will have
no practical effect or result'. The Constitutional Court in National
Coalition for Gay and Lesbian Equality & Others v Minister of
Home Affairs 2000 (2) SA 1 (CC) para 21 at footnote 18 said:
A c ase is moot and therefore not justiciable if it no longer
presents an existing or live controversy which should exist if the
Court is to avoid giving advisory opinions on abstract position of
Jaw. Such was the case in JT Publishing (Pty) Ltd and
Another v Minister of Safety and Security and Others 1997
(3) SA 514 (CC), where Didcott J said the following in para [17]
13
"There can hardly be a clearer instance of issues that are
wholly academic, of issues exciting no interest but an
historical one, than those on which our ruling is wanted have
now become".
[9] The courts have exercised discretion t o hear a matter even where it was
moot. In Independent Electoral Commission v L angeberg Municipality
2001 (3) SA 925 (CC), the Constitutional Court held as follows at para 11:
"A prerequisite for the exercise of the discretion is that any order which
this court may make will have some practical effect either on the parties
or on others"
[1 O] The first to third, the seventh and eight respondents admits the existence of
the court order dated 18 February 2025 and that they had knowledge thereof.
The applicant alleges non-compliance with the court order under discussion
whilst the respondents deny wilfulness or ma/a tides in that regard.
[11] The main issues for determination are:
11.1 Whether the respondents acted wilful and ma/a tide by not complying
14
with the court order of Makoti AJ (spoliation order).
11.2 Whether the eviction order issued on 19 February 2025 by Mathabathe
AJ supersedes the order issued by Makoti AJ effectively rendering that
order moot.
11.3 Whether the respondents complied with the order granted by Makoti AJ
and restored possession to the applicant following the order issued on
18 February 2025.
[12] The first, second, seventh and eight respondents stated the following in
paragraph 23 of their answering affidavit: 'Immediately following the grant of
the spoliation order, the Applicant took back possession of the property. This
means that the first respondent obeyed the order. The applicant was thus
restored to possession until removed per an eviction order obtained not by
the first respondent but by the Municipality'. These respondents furthermore
stated in their answering affidavit that following the eviction order issued on
19 February 2025, they were placed back in possession of the immovable
property on 26 February 2025. The respondents stated that the first
respondent was advised by the third and fourth respondents pursuant to the
order for eviction that it may reclaim possession of the immovable property.
15
[13] The applicant in response to what the respondents declared said the
following in its replying affidavit : 'Almost immediately after the granting of the
spoliation order the first respondent with the assistance of the second
respondent again took possession of the property in terms of the now invalid
eviction order which the third respondent with the support of the first
respondent obtained on an underhanded and improper manner. The first and
second respondent accordingly did not factually return peaceful and
undisturbed possession of the property to the applicant as it immediately
thereof again took possession of the property. '
[14] The applicant did not challenge the respondent's version that the first
respondent reclaimed possession of the immovable property on 26 February
2025 following advice received from the Third and/or Fourth Respondents to
do so.
[15] On conspectus of all the facts presented in this application and specifically
those facts referred to herein above, it follows clearly that the first
respondent complied with the court order of Makoti AJ by restoring the
applicants' peaceful and undisturbed possession thereof following that order.
16
This occurred factually.
[16] Further, the applicant, albeit vaguely, reaffirmed that the immovable property
was in their possession following the spoliation order but complains that it
was again dispossessed thereof following the eviction order issued on 19
February 2025 by Mathabathe AJ. Considering the normal and trite
principles applicable to applications, I must accept the version of the
respondents that the immovable property was reclaimed by them on 26
February 2025.
[17] In consequence hereof I am of the view that the respondents factually
complied with the order issued on 18 February 2025 by Makoti AJ.
[18] On 19 February 2025, the third respondent approached this court and
obtained an eviction order on an ex parte basis. Whether the order was
warranted under the circumstances or not, or whether it was obtained
wrongly or underhandedly is of no consequence within the context of this
application. I did however consider these facts as regards costs of this
application.
17
[19] The point is that when the first respondent or any of the respondents for that
matter acted thereon and reclaimed possession of the immovable property
from the applicant it did so in accordance with a valid court order. It matters
not whether the applicant believed it to be invalid or incorrect, at that stage.
These are trite principles that don't necessitate reaffirmation.
[20] In sequence it follows that the applicant was unlawfully dispossessed of its
possession over the immovable property. The applicant obtained a spoliation
order, and its possession was factually restored. The applicant subsequently
lost its possession following an interim order of eviction which was later set
aside by Bresler AJ on 9 June 2025. The first respondent was objectively in
possession of the immovable property at least from 26 February 2025 until 9
June 2025.
[21] Notwithstanding the factual findings already made herein, I am of the view
that the eviction order issued on 19 February 2025 by Mathabathe AJ,
supersedes the order issued by Makoti AJ and renders the Makoti order
effectively moot within the factual context of this matter.
[22] I agree with Mr Nalane that the spoliation order was overtaken by subsequent
events in that the applicant's occupation as on 19 February 2025 or 26
18
February 2025, being the execution date of that order, was at least at that
stage lawfully terminated and the first respondent reclaimed possession in
accordance with that order.
[23] Notwithstanding the factual finding already made herein above, I agree that
the subsequent eviction order interrupted the factual and legal basis of the
possession that spoliation order sought to protect.
[24] As regards the history and facts of this matter, I am of the view that the order
of Makoti AJ became academic with matters exciting historical issues.
Following the eviction order of 19 February 2025, no live or existing
controversy exists between the parties as regards the spoliation order issued.
[25] Considering the factual position i.e. that the respondents complied with the
Makoti AJ order together with the facts supporting the mootness of that order,
following the subsequent eviction order by Mathabathe AJ, I am of the view
that there is no wilfulness or ma/a tides on the part of the respondents.
[26] I agree that insofar as the respondents deviated from the compliance with the
spoliation order, their conduct was neither deliberate nor mala tide and, at that
stage, they acted lawfully in accordance with the spoliation order.
19
[27] I must highlight that even if the factual position were that possession was not
restored to the applicant following the Makoti AJ order, the subsequent interim
eviction order issued although later discharged, and factual circumstances
that followed thereafter, does not entitle the applicant to rely on the spoliation
order specifically where that order became moot or ineffective.
[28] As a result, the application for contempt of the Makoti AJ court order must fail.
[29] Considering the facts of this matter, I am of the view that party-and party costs
should follow the result. I am not inclined to award punitive costs against the
applicant specifically if consideration is given to the history of this matter.
[30] On a conspectus of all the issues raised I make the following order:
30.1 The application is dismissed.
30.2 The applicant is ordered to pay the costs of the first to third
respondents and the seventh and eight respondents.
ASLVANWYK
Acting Judge of the High Court
Limpopo Division, Polokwane
HEARD ON
JUDGMENT DELIVERED ON
FOR THE APPLICANT
INSTRUCTED BY
FOR THE FIRST.SECOND
SEVENTH AND EIGHT
RESPONDENTS
INSTRUCTED BY
20
APPEARANCES:
18 JUNE 2025
7 APRIL 2026 . This judgment
was handed down electronically by
circulation to the parties' representatives
by email. The date and time for hand
down of the judgment is deemed to be at
14:20
FW BOTES SC with him
L VAN GASS
KAMPHERBEEK, TWINE & POGRUND
ATTORNEYS
POLOKWANE
FANA NALANE SC with him
MALOSE MONENE
RABELANI MUSHIANA- SIGWAVHULIMU
MPHELA MOTIMELE ATTORNEYS
POLOKWANE
FOR THE THIRD RESPONDENT
INSTRUCTED BY
21
VUSUMUZI T MOYO
KGATLA INCORPORAT ED
ATTORNEYS
POLOKWAN E