SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE NO: 1454/2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
DATE: 18 JUNE 2026
SIGNATURE:
In the matter between :
SAND HAWKS (PTY) LTD Applicant
Registration Number : 1999/010163/07
and
65 TWIN PROPERTY 2 (PTY) LTD First Respondent
RBP SECURITY SERVICES Second Respondent
POLOKWANE LOCAL MUNICIPALITY Third Respondent
NETWORTH PROPERTIES (PTY) LTD Fourth Respondent
MINISTER OF POLICE Fifth Respondent
THE SHERIFF OF POLOKWANE Sixth Respondent
PHUMUDZO CONSOLIATION MAPHIRI Seventh Respondent
LETLADI MOLOTO Eighth Respondent
JUDGMENT
VAN WYK ASL, (AJ)
[1] This is an Application for Leave to Appeal against my Judgment and Order
delivered on 7 April 2026 , in accordance with the provisions of Rule 49(1)(b) of the
Uniform Rules of the High Court.
[2] Applicant initiated an Urgent Application to this Court, which was set down for
hearing on Thursday, 19 June 2025, in which it applied for an Order that the First,
Second, Seventh and Eighth Respondents be declared in Contempt of the Order issued
by Makoti AJ on 18 February 2025, under case number 1454/20251.
[3] The Applicant applied for ancillary relief in terms of which :
3.1 The First and Second Respondents each be fined R100 000.00, to be paid
to the Registrar of this Court; and
3.2 The Seventh and Eighth Respondents each be sentenced to
imprisonment for 60 days.
[4] I delivered an extensive Judgment in which I found that the Respondents are not
in wilful or deliberate Contempt of the Order issued by Makoti AJ on 18 February 2025. I
furthermore found that the Respondents did not conduct themselves in a mala fide
manner, as they prima facie complied with the aforementioned order.
1 Paragraph 2 of the Notice of Motion incorrectly refers to “19 February 2025”.
[5] It is common cause that the Applicant’s possession in respect of the immovable
property known as Erf 6[...], East Ridge X3, being the undivided portion of the
remainder of the Farm Krugersburg 993 LS, Limpopo Province 2 was briefly restored,
pursuant to the Order made by Makoti AJ on 18 February 2025.
[6] The Third Respondent 3 initiated an Ex Parte Application on an urgent basis
which was enrolled for hearing on 19 February 2025 , under case number 1775/2025,
before Mathabathe AJ. Mathabathe AJ issued a rule nisi in terms of which the Applicant4
was effectively evicted from the property, without notice, i.e. on an ex parte basis.
[7] The Applicant’s possession of the property was therefore disturbed by virtue of
the Order made by Mathabathe AJ on 19 February 2025.
[8] The Respondents submit that they did not prevent the Applicant from taking
possession of the property, as the Applicant was evicted lawfully from the property by
virtue of the Order made by Mathabathe AJ on 19 February 2025.
[9] I found favour with the approach adopted by the Respondents inter alia because
the Order by Mathabathe AJ was executed on the 26th of February 2026 and because of
the Applicant’s acceptance thereof in its replying affidavit.
[10] The Applicant applied in paragraph 5 of its Notice of Motion for an Order that the
First, Second, Seventh and Eighth Respondents should restore its undisturbed and
peaceful possession of the property immediately.
[11] The Applicant submits that the aforementioned relief stands independent from
the relief it applied for in paragraphs 2, 3 and 4 of the Notice of Motion, i.e. Contempt of
Court.
2 Hereinafter referred to as “the property”.
3 As Applicant.
4 As First Respondent.
[12] The Respondents submit that the purpose of the application was premised on
Contempt of Court proceedings and not to restore the Applicant’s possession of the
property, as no such a case has been made out by the Applicant in its Founding
Affidavit.
[13] The Applicant dealt with this aspect succinctly in paragraphs 6.8 and 6.9 of its
Founding Affidavit, in terms of which the First and Second Respondents refused the
Applicant access to the property.
[14] I pause to mention that Bresler AJ made an Order on 9 June 2025 in terms of
which the Ex Parte Order made by Mathabathe AJ on 19 February 2025 and the rule
nisi contained therein was discharged in its entirety. Bresler AJ furthermore dismissed
the application initiated by the Third Respondent under case number 1775/2025 with
costs.
[15] The Applicant submits that I did not consider the relief which it applied for in
paragraph 5 of the Notice of Motion at all, as I focussed primarily on the aspect
pertaining to the Respondents’ alleged Contempt of the Order made by Makoti AJ on 18
February 2025.
[16] I understand the Applicant’s argument to be that the relief it applied for in
paragraph 5 of the Notice of Motion should be regarded as independent and self -
standing remedies, and that I conflated such relief with the determination of Contempt of
Court, thereby limiting the scope of the inquiry before this Court.
[17] The Applicant therefore submits that I failed to appreciate that the relief applied
for in paragraph 5 of the Notice of Motion pertains to the mandatory restoration of
possession of the property, whilst the relief contained in paragraph 6 of the Notice of
Motion stands as ancillary enforcement through the Fifth and Sixth Respondents.
[18] The Applicant, however, concedes that I correctly found that it was unlawfully
dispossessed of its possession over the property, as alluded to in paragraph 20 of my
Judgment.
[19] I furthermore found that the First Respondent was objectively in possession of
the property from at least 26 February 2025 until 9 June 2025, the latter being the date
upon which Bresler AJ made an Order referred to in paragraph 14 supra.
[20] I therefore found that the subsequent Eviction Order made by Mathabathe AJ on
19 February 2025 interrupted the factual and legal basis of the possession that the
Spoliation Order sought to protect. I dealt with this aspect in paragraph 23 of my
Judgment.
[21] I, therefore, found that the Order made by Makoti AJ on 18 February 2025
became academic with matters exciting historical issues and that no live or existing
controversy existed between the parties as regards to the Spoliation Order following the
Eviction Order issued by Mathabathe AJ on 19 February 2025.
[22] The Applicant, however, submitted that the Order made by Makoti AJ on 18
February 2025 stands, as same has not been set aside, or rescinded, or is the subject
matter of a pending Appeal, regard being had to the fact that the Order made by
Mathabathe AJ on 19 February 2025 was set aside and discharged in its entirety by
Bresler AJ on 9 June 2025.
[23] The Applicant relies on the Order made by Makoti AJ on 18 February 2025,
notwithstanding the int erruption thereof by virtue of the Order made by Mathabathe AJ
on 19 February 2025.
[24] The Applicant further submitted that I was obliged to grant effective relief to
vindicate the authority of the Court Order made by Makoti AJ on 18 February 2025 and
that I should have restored its possession of the property in accordance with the
aforementioned Order.
[25] The Applicant therefore submitted that I misdirected myself by limiting the inquiry
to past compliance and mootness, instead of determining whether it was entitled to
restoration of possession of the property, which remained a live and substantive issue,
apart from the relief which it applied for insofar as Contempt of the Court Order dated 18
February 2025 is concerned.
[26] Applications for leave to appeal are governed by rule 49(1) of the Uniform Rules
of Court and Sections 16 & 17 of the Superior Courts Act, No. 10 of 20135.
[27] In terms of rule 49(1)(b) when leave to appeal is required and it had not been
requested at the time of the judgment or order, application for such leave shall be made
and the grounds therefore shall be furnished within fifteen days after the date of the
order appealed against’.
[28] In terms of section 16(1)(a)(i) of the Act an appeal against any decision of a
Division as a court of first instance lies, upon leave having been granted if the court
consisted of a single judge, either to the Supreme Court of Appeal or to a full court of
that Division, depending on the direction issued in terms of section 17(6). Section
17(6)(a) of the Act provides:
‘If leave is granted under subsection (2) (a) or (b) to appeal against a decision of
a division as a court of first instance consisting of a single judge, the judge or
judges granting leave must direct that the appeal be heard by a full court of that
Division, unless they consider-
(i) that the decision to be appealed involves a question of law of
importance, whether because of its general application or otherwise, or in
5 Hereinafter referred to as “the Act”.
respect of which a decision of the Supreme Court of Appeal is required to
resolve differences of opinion; or
(ii) that the administration of justice, either generally or in the particular
case, requires consideration by the Supreme Court of Appeal of the
decision, in which case they must direct that the appeal be heard by the
Supreme Court of Appeal."
[29] Section 17 makes provision for leave to appeal to be granted where the presiding
judge is of the opinion that either the appeal would have a reasonable prospect of
success or there is some other compelling reason why the appeal should be heard,
including whether there are conflicting judgments on the matter under consideration.
[30] Considering the statutory and regulatory matrix, three questions for consideration
arise in the application for leave to appeal. These questions are not distinct but
interrelated. The first question is whether the applicant filed a proper notice of
application for leave to appeal which concisely and succinctly set out the grounds upon
which leave to appeal is sought. The second question is whether the appeal would have
a reasonable prospect of success or whether there are compelling reasons which exist
why the appeal should be heard such as the interests of justice. The third question is
whether the application for leave to appeal sets out expressly why the default position of
an appeal to a full court of the Division should not prevail, as well as the questions of
law or fact or ot her considerations involved which dictate that the matter should be
decided by the Supreme Court of Appeal.
[31] In the matter of S v Smith the Supreme Court of Appeal held as follows:
“What the test of reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law that the Court of Appeal could
reasonably arrive at a conclusion different to that of the Trial Court. In order to
succeed, therefore, the Appellant must convince this Court on proper grounds
succeed, therefore, the Appellant must convince this Court on proper grounds
that he has prospects of success on Appeal and that those prospects are not too
remote, but have a realistic chance of succeeding. More is required to be
established than that there is a mere possibility of success. That the case is
arguable on Appeal or that the case cannot be categorized as hopeless. There
must, in other words, be a sound, rational basis for the conclusion that there are
prospects of success on Appeal.”6
DID THE APPLICANT FILE A PROPER NOTICE OF APPLICATION FOR LEAVE TO
APPEAL
[32] The notice of application for leave to appeal must set out the grounds upon which
leave to appeal is sought. The rules do not define ‘grounds’, but authorities seem to
agree that it should be an error of law or facts alleged by the applicant as the defect in
the judgment appealed against upon which reliance is placed to set it aside.
See for example - Xayimpi & others v Chairman, Judge White Commission
(formerly known as Browde Commission) & others [2006] JOL 16596 (E).
[33] An appeal may also lie against the exercise of judicial discretion.
See – Knox D’Arcy Ltd and Others v Jamieson and Others 1996 (4) SA 348 (A)
[also reported at [1996] 3 All SA 669 (A)].
[34] The first enquiry is whether the notice clearly and succinctly set out in clear and
unambiguous terms the incorrect findings of law or fact, or the basis upon which it is
contended that the court did not act judicially. For an illuminating discussion on the
distinction between findings of law, findings of fact, and judicial discretion.
See Media Workers Association of South Africa and Others v Press Corporation
of South Africa Limited [1992] 2 All SA 453 (A) at pages 457 – 459.
6 2012 (1) SACR 567 (SCA) at para 7.
[35] Incorrect findings of fact cannot arise outside the record of proceedings because,
save in exceptional circumstances, an appeal court will not permit dispute s of face or
expert opinion to be raised for the first time on appeal.
See – Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others 2005 (2) SA 359 (CC) at 388F -389A. An applicant in an application for leave to
appeal needs to show that from the text of the decision appealed against ( ipsissima
verba) that an accepted fact differs from a common cause or undisputed fact in the
record of proceedings.
[36] The Constitution, legislation, the common law, and customary law are the laws
of the Republic. There is a clear hierarchy of laws, with the Constitution being the
supreme law of the Republic.
See – Section 2 of the Constitution. Common law and customary are subject to any
legislation consistent with the Constitution that specifically deals with it. See - Alexkor
Ltd and Another v Richtersveld Community and Others (CCT19/03) [2003] ZACC
18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October 2003) at par 51.
[37] An applicant in an application for leave to appeal who relies on an incorrect
finding of law must clearly and succinctly identify the incorrect legal principle applied by
the court, and the correct legal principle that should have been applied.
[38] This is, however, not the end of the enquiry, since an appeal can only be noted
against the judgment itself (i.e., the substantive order), not the reasons for the
judgment, or the way the Court arrived at the judgment.
See - Cape Empowerment Trust Ltd v Fisher Hoffman Sithole 2013 (5) SA 183
(SCA) at 198I–J. Even if an applicant in an application for leave to appeal succeeds in
convincing the Court that it erred in fact and / or in law, it must also show that the
judgment (substantive order) would have been different if the Court applied the correct
law or facts. The notice should therefore clearly specify what orders will be sought on
appeal.
[39] In the context of a judgment, legal issues and factual issues can never truly be
separated and the question of fact must first be answered before the court will know
which legal question must be dealt with. To determine whether the court acted judicially,
a determination needs to be made with reference to all the relevant facts and principles.
If an application is based on the contention that the Court failed to act judicially, the
notice should clearly and succinctly set out all the relevant facts and legal principles
which the applicant relies upon, and the decision which in the result should reasonably
have been made by the Court properly directing itself.
[40] I am satisfied that the Applicant filed a proper notice of application for leave to
appeal.
[41] The Supreme Court of Appeal held as follows in regard to the threshold which a
party seeking Leave to Appeal is required to satisfy :
“In order to be granted Leave to Appeal in terms of Section 17(1)(a)(i) and (ii) of
the Superior Courts Act, an Applicant for Leave to Appeal must satisfy the Court
that the Appeal would have a reasonable prospect of success or that there is
some other compelling reason why the Appeal should be heard. If the Court is
unpersuaded of the prospects of success, it must still enquire into whether there
is a compelling reason to entertain the Appeal. A compelling reason includes an
important question of law or a discreet issue of public importance that will have
an effect on future disputes. But here too, the merits remain vitally important and
are often decisive.”7
[42] The test of reasonable prospects of success postulates a dispassionate decision
based on the facts and the law that a Court of Appeal could reasonably arrive at a
7 Caratco (Pty) Ltd v Independent Advisory Ltd 2020 (5) SA 35 (SCA) at para 2.
conclusion different to that of the Trial Court. In other words, the Applicant needs to
persuade me on proper grounds that it has prospects of success on Appeal. These
prospects of success must not be remote, but there must exist a reasonable chance of
succeeding. A sound rational basis for the conclusion that there are prospects of
success must be shown to exist.
[43] Considering the grounds of appeal raised by the Applicant and because there is
no specific authority for the proposition that an Order gran ted previously (Makoti AJ -
Spoliation Order) became moot, ineffective, or academic in the face of a subsequent
Order (Mathabathe AJ - Eviction Order), which Order was thereafter set aside, I am
persuaded that the Appeal would have a reasonable prospect of success,
notwithstanding the findings and conclusions I arrived at in my Judgment.
[44] I remain mindful of the Orders made by Makoti AJ on 18 February 2025,
by Mathabathe AJ on 19 February 2025 and by Bresler AJ on 9 June 2025, which, in my
considered view, justifies the attention of the Supreme Court of Appeal.
[45] I consequently make an Order in the following terms :
1. Leave to Appeal is granted to the Supreme Court of Appeal; and
2. The costs of the Application for Leave to Appeal are costs in the Appeal.
ASL VAN WYK
Acting Judge of the High Court
Limpopo Division, Polokwane
APPEARANCES:
HEARD ON : 12 JUNE 2026
JUDGMENT DELIVERED ON : 18 JUNE 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 13:30
FOR THE APPLICANT FW BOTES SC
INSTRUCTED BY KAMPHERBEEK, TWINE & POGRUND ATTORNEYS
POLOKWANE
FOR THE FIRST,SECOND
SEVENTH AND EIGHT
RESPONDENTS GP MALULEKE
INSTRUCTED BY MPHELA MOTIMELE ATTORNEYS
POLOKWANE