OFFICE OF T HE CHIEF JUSTICE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION MIDDELBURG (LOCAL SEAT)
Case Number: 2025-127932
BEFORE THE HONOURABLE JUSTICE: SCHUTTE AJ
DATE: 05 AUGUST 2026
In the matter between
STRA TH RAE COLLIERY (PTY) LTD
and
THULANI ELVIS THUKWANA
JACOB MPYAKHE SIBIYA
SIPHESIHLE AUSTIN NKOSI
ANDILE MFNAFUTHI NDWANDWE
NHLANHLA SIYABONGA MAHLANGU
PERSONS UNLAWFULLY TRESPASSING ON
AND THREATENING NEAR FARM STRATHRAE
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
496, JS MPUMALANGA SIXTH RESPONDENT
SOUTH AFRICAN POLICE SERVICE SEVENTH RESPONDEN T
ORDER
The Judge heard the matter on 22 JULY 2026 and electronically circulated the judgment
on 05 AUGUST 2026 and gave an order as follows:
[46]1 therefore make the following order:
[1) For the reasons set out above, the rule nisi is discharged and the application dismissed
with costs on an attorney and client scale, which costs exclude the costs taxable under the
order granted by this Court on 7 Augu~t 2025.
I
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MIDDELBURG
( 1 ) Reportable : ¥es/No
(2) Of inte rest to other Judges: ¥es/No
(3) Revised: ¥es/No
-SIGNATURE
In the matter between:
STRATHRAE COLLIERY (PTY) LTD
and
THULANI ELVIS THUKWANA
JACOB MPYAKHE SIBIYA
SIPHESIHLE AUSTIN NKOSI
ANDILE MFNAFUTHI NDWANDWE
NHLANHLA SIYABONGA MAHLANGU
PERSONS UNLAWFULLY TRESPASSING ON
AND THREATENING NEAR FARM STRATHRAE
496, JS MPUMALANGA
CASE NO: 2025-12 7932
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
SIXTH RESPONDENT
r
SOUTH AFRICAN POLICE SERVICE SEVENTH RESPONDENT
Delivered: This judgment was handed down electronically by circulation to the parties'
legal representatives by email. The date and time for hand-down is deemed to be 05
August 2026 at 10h00.
JUDGMENT
Schutte AJ
Introduction
[1] In our division, courts are regularly called upon to resolve legal battles between
mining companies and their nearby local communities. This is one such case.
Litigation history
[2] In August 2025, the urgent court granted an interim interdict in favour of
Strathrae Colliery (Pty) Ltd (the applicant) against, amongst others, four identified
individuals. They are Mr Thukwana (the first respondent), Mr Nkosi (the third
respondent), Mr Ndwandwe (the fourth respondent), and Mr Mahlangu (the fifth
respondent). The urgent court also granted an interdict against unknown trespassers
(cited as the sixth respondent) and ordered the police (cited as the seventh
respondent) to enforce the order in conjunction with Strathrae's security company. No
order was granted against Mr Sibiya (the second respondent) because, by then,
Strathrae had withdrawn its application against him.
[3] Going forward, in this judgment, when I refer to the respondents, I will mean the
four remaining individuals identified by name. For ease of reading, I refer to Strathrae
as the mine.
2
The mine's founding papers
[4] The mine's founding papers constitute the first pleading and the factual basis
on which the mine's application rests. It is therefore apposite that I begin by discussing
it.
Mr Mabilo's founding affidavit
[5] Mr Mabilo, a director of the mine, states the following in his founding affidavit:
[5.1] The mine held access and mining rights to and over the farm on which it mines.
These rights constituted the mine's clear right to, without hindrance, conduct mining
activities on the farm. Mr Thukwana "and potentially various of the other Respondents
are known to [the mine's employees], as this is not the first occasion on which the
aforementioned persons have engaged in unlawful activities by intimidating and
making unlawful demands of mining operations".
[5.2] A company related to the mine had a few years earlier obtained an interdict
against Mr Thukwana and "potentially against various of the other Respondents". The
previous order shows that Mr Thukwana and "potentially all other Respondents ...
seem to target mining operations with demands of securing work and ultimately turning
to intimidation and threats."
[5.3] The respondents unlawfully gained access to the mine on 22 July 2025 "through
[unspecified] force" with a vehicle. Once on the property, the respondents chased the
[unidentified] mine's employees out of the [unspecified] working area and blocked and
restricted access to the mine's offices. The respondents also engaged in [unspecified]
intimidation and threats directed at the [unidentified] mine's employees and
contractors, demanding that the mine's managers meet with the respondents.
[5.4] The respondents gave the mine an ultimatum to either accede to their demand
for work, or they would return to shut down mining operations. The respondents also
handed various [unidentified] documents to the mine and threatened and intimidated
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the mine's [unidentified] security personnel. The respondents refused to leave, despite
demand by [unspecified person/s].
[5.5] The mine called the police for assistance, who, upon arrival, refused to
evacuate the respondents. The police did nothing in circumstances where the mine
expected assistance from them.
[5.6] The respondents indicated that they were there on the mandate of a certain
local community association. The association denied this.
[5. 7] At some stage the mine's site manager and another manager arrived and
engaged with the respondents. Mr Thukwana shouted at them and indicated that if the
mine does not employ the respondents, the respondents would return to shut down
mining operations. The respondents demanded employment and yellow machine
procurement opportunities. The respondents indicated that if they do not get these
business opportunities, the mine will "see". The mine considered this to be a veiled
threat.
[5.8] These events caused severe disruptions of mining activities and financial
losses of up to a million rand per day. The events also placed the mine's employees
at risk.
[5.9] The next day, Mr Thukwana delivered a letter of demand to the mine. Mr Mabilo
quotes what he considers to be the important part of the letter: "We demand that the
current mining activity at the site be halted and a meaningful consultation process be
initiated." I quote the letter in paragraph 6 below. It suffices for the present to say that
Mr Mabilo's quote is out of context.
[5.1 O] Mr Mabilo concludes that the mine has good reason to say that an injury was
committed or that the mine has a reasonable apprehension of harm. The mine has no
other available remedy, especially given the police's neutral stance.
Mr Thukwana's 23 July 2025 letter
4
[6] Mr Mabilo attached Mr Thukwana's letter to the founding affidavit. It is
important, for proper context, that I quote the letter.
"1. We been aware that Strathrae Colliery has been awarded a mining right located
approximately 80km east of Emalahleni along the N4 and the R33 connecting
Wonderfontein and Carolina town, Chief Albert Luthuli Local Municipality.
2. We have never been consulted at any stage of the application of the prospecting
and mining permits as required in terms of the Minerals and Petroleum Resources
Development Act 28 of 2002 ("MPRDA").
3. Further that we have on numerous occasions, requested to be provided with
information and/or documents relating to the granting of the prospecting and mining
permits without any success and/or co-operation from Strathrae Colliery.
4. As an interested party to this process (as defined in the applicable regulations to
MP RDA and Mine Community Resettlement Guidelines 2022), this being our ancestral
land where they still live and have interest to protect the sacred areas at risk of
desecration from the mining activities, material non-compliance through failure to
consult with interested / affected parties at all stages of the prospecting and mining
permits application, and/or submission of false and/or misleading information in
support of the above applications (this being a criminal offence), We demand that the
current mining activity at the site be halted and a meaningful consultation process be
initiated. [*Mr Mabilo quoted the last sentence.]
5. In order to preparing for such consultation process, we request to be provided with
the following documents:
[Several documents are then listed. I do not repeat the list here.]
6. On receipt of the above documents, we will schedule an initial consultation meeting
at which the full consultation process will be discussed and agreed between the
parties.
7. The main purpose of demanding a meaningful consultation is to ensure that we can
parties.
7. The main purpose of demanding a meaningful consultation is to ensure that we can
protect our interests and not meant to unduly delay or frustrate the mining activity.
5
8. Should we receive no response which includes the requested documents in
paragraph 5 above, we intend to take all necessary steps to protect our rights and
interests, including, but not limited to alerting the Department of Mineral Resources
and Energy, interdicting the mining activity currently underway and bringing to review
the prospecting and mining licence award process." (My emphasis.)
Mr Strauss and Ms Maseko
[7] Mr Strauss, the mine's manager, and Ms Maseko, a manager at the mine,
confirmed Mr Mabilo's founding affidavit in as far as it relates to them. They basically
confirm the events that unfolded at the meeting with the respondents on 22 July 2025.
Mr Manuel
[8] Mr Manuel, the mine's contracted protection manager, says in his confirmatory
affidavit that the respondents gained access to the mine through [unspecified] force
and that they had chased [unidentified] employees out of their [unidentified] working
area. The respondents then blocked access to the mine's offices and engaged in
[unidentified] "intimidation and threats", demanding that management meet the
respondents. They also threatened the mine's private security team and refused to
leave.
The answering affidavit
[9] In his answering affidavit, Mr Thukwana says:
[9.1] The mine does not hold any mining rights. The mine had on multiple occasions
undertaken to provide proof of its mining rights but had failed to do so. Various
meetings with the mine were held, amongst others at Alzu Petroport and at the mine's
offices in Emalahleni. Mr Thukwana also conducted some investigations and came
across a newspaper article, wherein one of the mine's representatives had been linked
to illegal mining activities, but at a different location. Mr Thukwana identified this
person by name. I do not repeat the name here because that person nor his version
is before court.
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[9.2] The respondents were at the mine to follow up on the mine's empty promises
(ostensibly regarding proof of mining rights). Mr Thukwana denies demanding any
work and explains that he already owns mining equipment, one of which was operating
at the mine. He also denies any allegations of threats, violence, intimidation or
interruption of mining operations. He also denied refusing to leave the mine.
[9.3] Only the respondents were present on the day. Mr Sibiya - the respondent
against whom the mine had withdrawn its application - was not present.
[9.4] The previous interdict was irrelevant for current purposes. The police took a
neutral stance because they witnessed no unlawful activity.
[9.5] On the day in question, when informed that the managers were not immediately
available, the respondents waited outside the mining area. The police and the mine
manager found them there. The security then escorted them to the mine's office for
the meeting and, later, out again.
[9.6] Mr Thukwana denies shouting or demanding work. He says there was no need
to shout, since the respondents had already decided to put their grievances in writing.
He denies saying that the mine will "see".
[10] The next day, they delivered the grievance letter, wherein he referenced
shutting down the mine, but lawfully, amongst others, to convince the mining
regulators to serve a stoppage notice on the mine. After the delivery of the letter of
grievances, he had a telephonic discussion with the representative of the mine who
allegedly had ties to illegal mining. This representative berated Mr Thukwana, saying
that "it won't end well".
[11] Mr Thukwana denies that the mine has suffered any losses because of the
respondents' visit. Mr Thukwana insists that he, as a member of the community, has
a right to oppose illegal mining. The mine's application was simply the mine "trying
their luck".
7
[12] Messrs Ndwandwe, Nkosi, and Mahlangu filed confirmatory affidavits,
confirming that Mr Thukwana's version was true and correct.
The replying papers.
[13] In his replying affidavit, Mr Mabilo says that Mr Thukwana's answering affidavit
amounts to a bare denial and that evidence tendered in the founding affidavit stands
uncontested. Mr Mabilo denied large parts of Mr Thukwana's affidavit. He, for instance,
denied the meetings held at Alzu Petroport and in Emalahleni. But he also failed to
respond to several of the respondents' allegations. I will discuss the denied and
omitted facts later when I consider the body of facts.
The requirements for a final interdict
[14] It is trite that an applicant for a final interdict must prove a clear right, that an
injury was actually committed or reasonably apprehended, and the absence of any
other satisfactory and available remedy. 1
The mine's clear right
[15] The respondents denied that the mine had any right to mine. I am thus obliged
to consider whether the respondents' denial raises a serious dispute of fact. Here, I
am guided by the principle laid down in Soffiantini v Mould,2 wherein it was said:
"It is necessary to make ·a robust, common-sense approach to a dispute on motion as
otherwise the effective functioning of the Court can be hamstrung and circumvented
by the most simple and blatant stratagem. The Court must not hesitate to decide an
issue of fact on affidavit merely because it may be difficult to do so. Justice can be
defeated or seriously impeded and delayed by an over-fastidious approach to a dispute
raised in affidavits." (My emphasis.)
1 Se/loge/av Setlogelo 1914 AD 221.
2 So/fiantini v Mould 1956 (4) SA 150 (E) at 154G-H.
8
[16] If the answering affidavit is read in context with the 23 July letter, it becomes
clear that the respondents do not deny that a mining right had been issued. Their issue
with the right is that it had been granted unlawfully, amongst others because the mine
did not consult affected communities. The mine's failure to provide the respondents
with the documents relevant to the mining right fuelled the respondents' belief.
[17] At the hearing, counsel for the respondents differed from me, maintaining that
the mine does not have any right to mine because it failed to attach the permit to the
founding papers. I pointed out to counsel for the respondents that his stance places
Mr Thukwana, the first respondent, in a precarious position. This, because Mr
Thukwana's mining equipment was operating at the mine. If Mr Thukwana's stance,
that the mining activities were unlawful, is to be accepted, then it would mean that Mr
Thukwana was earning income from these illegal mining activities, which would
question Mr Thukwana's issue with the illegal mining.
[18] I also pointed out to the respondents' counsel that it was evident from
Mr Thukwana's 23 July letter that Mr Thukwana has above average knowledge of
mining rights. Mr Thukwana would have been perfectly placed to attend to the office
of the mining regulators and enquire about the mine's mining right. Mr Thukwana did
not do that.
[19] In my view, the argument advanced by the respondents' counsel on this issue
does not align with the underlying facts. Questions about the lawfulness of the mining
right do not invalidate it; it remains enforceable until set aside. I am satisfied - if I apply
a robust approach to the papers - that the respondents do not genuinely dispute the
mine's clear right and that the mine has established that it had a clear right to mine.
An injury actually committed or reasonably apprehended
[20] The 22 July events are what lies at the heart of the application, but the parties'
[20] The 22 July events are what lies at the heart of the application, but the parties'
versions of events are mutually destructive. To resolve this, I am obliged to apply the
9
principle articulated in P/ascon-Evans Paints Ltd v Van Riebeeck Paints {Ply) Ltd,3
commonly referred to as the Plascon-Evans rule. The principle provides as follows:
"It is correct that, where in proceedings on notice of motion disputes of fact have arisen
on the affidavits, a final order , , , may be granted if those facts averred in the applicant's
affidavits which have been admitted by the respondent, together with the facts alleged
by the respondents, justify such an order. The power of the Court to give such final
relief on the papers before it is, however, not confined to such a situation. In certain
instances the denial by respondent of a fact alleged by the applicant may not be such
as to raise a real, genuine or bona fide dispute of fact. .. If in such a case the respondent
has not availed himself of his right to apply for the deponent concerned to be called for
cross-examination ... and the court is satisfied as to the inherent credibility of the
applicant's factual averment, it may proceed on the basis of the correctness thereof
and include this fact among those upon which it determines whether the applicant is
entitled to the final relief which he seeks ... Moreover, there may be exceptions to this
general rule, as, for example, where the allegations or denials of the respondent are
so far-fetched or clearly untenable that the Court is justified in rejecting them merely
on the papers ... "
[21] My understanding of the Plascon-Evans rule is that I must list those facts
admitted by the respondents and add thereto the remainder of the respondents'
version. I must then robustly peruse the respondents' versions for any obvious lies or
improbabilities and remove them from the list. The facts remaining on the list will
constitute the facts on which I must determine the mine's case.
[22] At the hearing, counsel for the mine confirmed that Mr Mabilo had not been an
eyewitness to the 22 July events. He confirmed that the two managers were the mine's
eyewitness to the 22 July events. He confirmed that the two managers were the mine's
only eyewitnesses to the meeting. He argued that Mr Manuel, the security officer, was
an eyewitness. I disagree and will hereunder show that there is no room in Mr Manuel's
affidavit to infer that Mr Manuel had been an eyewitness to the events of 22 July.
[23] The fact that Mr Mabilo was not an eyewitness presents serious evidentiary
issues for the mine, because Mr Mabilo was the only witness on behalf of the mine to
3 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A} at 634E-635C.
10
file a replying affidavit. Whatever Mr Mabilo has said in his replying affidavit with regard
to the 22 July events is inadmissible hearsay and not an answer to the respondents'
answering affidavit. The answering affidavits are - with regard to the events of 22 July
- uncontested before me.
[24] Here is why I say the papers do not disclose that Mr Manuel had been an
eyewitness, notwithstanding him saying in the opening paragraph of his affidavit that
the facts contained therein fall within his personal knowledge. In paragraph 3 of his
affidavit, Mr Manuel confirms that he had read Mr Mabilo's founding affidavit and
confirms paragraphs 29 to 36 thereof. In those paragraphs, Mr Manuel's name is not
once mentioned. The closest reference to Mr Manuel is that Mr Mabilo alleges that the
respondents (thus including Mr Sibeko) "engaged with the Applicant's private security".
Mr Manuel's confirmation that Mr Mabilo's affidavit was true and correct insofar as it
related to Mr Manuel is clearly meaningless.
[25] Mr Manuel proceeds in his confirmatory affidavit but never, not once, says
words that could, even on a liberal application, be interpreted as to mean that he had
witnessed anything.
[26] Mr Mabilo's (hearsay) replying affidavit has no standing against the
respondents' answering affidavits, wherein they pertinently denied that Mr Manuel had
witnessed the events of 22 July.
[27] The only eyewitnesses on behalf of the mine are the two managers who met
the respondents. Their contribution relates to the events that unfolded during the
meeting.
[28] I will now apply the P/ascon-Evans rule to determine whether the mine has
proven the second requirement for a final interdict.
[29] Firstly, I list the facts admitted by the respondents. The respondents admit that
they:
[29.1] Were at the mine on 22 July 2025.
11
(29.2] Met with the two managers.
(29.3] Discussed amongst others their concerns about the mining permit.
(29.4] Were escorted out of the rnine (after the meeting) by the mine's security.
(29.5] Delivered the 23 July letter and the contents thereof.
(29.6] The mine previously interdicted Mr Thukwana.
[30] Secondly, I add the remainder of the respondents' version. These are:
(30.1] The respondents have previously, at different locations, rnet the mine's
management to raise their concerns about the mining operations.
(30.2] They have previously requested information frorn the rnine but have not been
provided therewith.
(30.3] On 22 July they did not enter the mine by force but were escorted onto the mine
property by the mine's security.
(30.4] They deny disrupting mining operations or shouting at the mine's managers.
(30.5] They also deny threatening or intimidating anyone.
(30.6] They deny that the 23 July letter constitutes any threat.
(30.7] They deny that the previous interdict is relevant to the current proceedings.
(30.8] The respondents say that the person implicated in other illegal mining activities
called the first respondent after delivery of the 23 July letter.
12
[30.9] The respondents deny that Mr Mabilo (the director) nor Mr Manuel (the security
contractor) were present on 22 July. The respondents deny that any other member of
the community - other than the four respondents - were at the mine on 22 July.
[31] Thirdly, I robustly scrutinise the respondents' version for any lies, far-fetched or
clearly untenable allegations, or improbabilities. However, I do not do that in isolation.
I use the mine's replying affidavit as a starting point. (For present purposes, I leave
aside the fact that the replying affidavit is hearsay.) In Mr Mabilo's replying affidavit,
he says that the respondents' version was a bare denial. I disagree because it is
evident that the respondents have engaged the mine's version.
[32] In Wightman Ila JW Construction v Headfour (Pty) Ltd and Another,4 the
Supreme Court of Appeal had this to say about bare denials:
"A real, genuine and bona fide dispute of fact can exist only where the court is satisfied
that the party who purports to raise the dispute has in his affidavit seriously and
unambiguously addressed the fact said to be disputed. There will of course be
instances where a bare denial meets the requirement because there is no other way
open to the disputing party and nothing more can therefore be expected of him. But
even that may not be sufficient if the fact averred lies purely within the knowledge of
the averring party and no basis is laid for disputing the veracity or accuracy of the
averment. When the facts averred are such that the disputing party must necessarily
possess knowledge of them and be able to provide an answer (or countervailing
evidence) if they be not true or accurate but, instead of doing so, rests his case on a
bare or ambiguous denial the court will generally have difficulty in finding that the test
is satisfied. I say "generally" because factual averments seldom stand apart from a
broader matrix of circumstances all of which needs to be borne in mind when arriving
at a decision."
at a decision."
[33] Ironically, the replying affidavit is, in large part, a bare denial. The mine did not
engage the respondents' version that they were escorted onto the mine by the mine's
security, nor did it engage the respondents' version that several meetings were
previously held with mine management. The mine did not engage the respondents'
4 Wightman Ila JW Construction v Head/our {Ply) Ltd and Another 2008 (3) SA 371 (SCA) at para 13.
13
version that the person associated with illegal mining activities had contacted the
respondents. The mine did not engage the respondents' version that Mr Mabilo and
Mr Manuel were not present on the day in question. But even more telling is that the
mine has failed to identify a single employee who had been chased away by the
respondents, nor did it identify which operations had been interfered with.
[34] In Soffiantini, 5 the court said the following about bare denials:
"In the case of Room Hire Co. (Ply.) Ltd v Jeppe Mansions (Ply.) Ltd., 1949 (3) SA
1155 (T), at p. 1165 MURRAY, then A.J.P., said:
'A bare denial of applicant's material averments cannot be regarded as sufficient to
defeat applicant's right to secure relief by motion proceedings in appropriate cases.
Enough must be stated by respondent to enable the Court to conduct a preliminary
examination ... and to ascertain whether the denials are not fictitious intended merely
to delay the hearing.'
(or for some other purpose)
'The respondent's affidavits must at least disclose that there are material issues in
which there is a bona fide dispute of fact capable of being decided only after viva voce
evidence has been heard.'
If by a mere denial in general terms a respondent can defeat or delay an applicant who
comes to Court on motion, then motion proceedings are worthless, for a respondent
can always defeat or delay a petitioner by such a device.
It is necessary to make a robust, common-sense approach to a dispute on motion as
otherwise the effective functioning of the Court can be hamstrung and circumvented
by the most simple and blatant stratagem. The Court must not hesitate to decide an
issue of fact on affidavit merely because it may be difficult to do so. Justice can be
defeated or seriously impeded and delayed by an over-fastidious approach to a dispute
raised in affidavits.
5 Soffiantini fn 2 at 154E-H.
14
The respondent has set out his case in the greatest detail. In reply the appellant has
made a bald denial to some allegations; others he has not denied at all."
[35] Of concern is Mr Mabilo's quotation of part of the 23 July letter, ostensibly
because he felt that the quoted part supports his version that the respondents
threatened to shut down the mine. But he has failed to quote or address the part of the
letter wherein the respondents say that "[t]he main purpose of demanding a
meaningful consultation is to ensure that we can protect our interests and not to unduly
delay or frustrate the mining activity."
[36] The mine has also failed to file affidavits of any employee who had been chased
away or of any security officer who saw the respondents entering the mine with force.
This information falls squarely within the mine's peculiar knowledge.
[37] There is another issue of even greater concern in the mine's application. The
four witnesses on behalf of the mine identified Mr Sibiya - the erstwhile second
respondent - as a person who entered the mine area with force, chased the mine's
employees away and who was present during the meeting when the managers were
threatened. Notwithstanding this, the mine withdrew the application against Mr Sibiya,
without tendering any evidence as to how ii came about that Mr Sibiya was mistakenly
identified.
[38] The objective probabilities also do not favour the mine. It is, objectively seen as
difficult to believe that the police would take no steps if mine employees complain to
the police that they were intimidated and chased out of their workplace. It is also
objectively seen as improbable that, where trespassers had by force gained access to
a property, the police would not have been shown damage to, for instance, the mine's
gate. The probabilities without doubt favour the respondents.
[39] On behalf of the mine, the two managers stated what had happened during the
meeting on 22 July, but the four respondents dispute that. It is impossible on the
meeting on 22 July, but the four respondents dispute that. It is impossible on the
papers to reject the respondents' version as false, far-fetched, untenable or
improbable. The same principle applies to the photos produced by the parties. The
mine alleges that the photo it provided depicts the respondents' vehicle on the mine.
15
The respondents deny this, alleging that the photo they attached depicts the vehicle
outside the mine,
[40] Having scrutinised the answering affidavits robustly, I cannot identify a single
lie, far-fetched or untenable allegation, or improbability, The respondents' version
remains unscathed, The evidence remaining on my list leaves me no choice but to find
that the mine has failed to prove any injury or imminent injury,
The absence of any other satisfactory and available remedy
[41] Given my finding on the second requirement, the third requirement has become
moot. If I had not found the way I did regarding the second requirement, I would have
found that no other remedy was open to the mine, It is common cause that the police
had not taken any steps, albeit the parties hold opposite views as to the reasons for
the police's neutral stance,
The sixth and seventh respondents
[42] Because of the conclusion I have reached with regard to the second
requirement for a final interdict, it follows that the application against the sixth and
seventh respondents - the unknown trespassers and the police - is also to be
dismissed.
Costs
[43] Ordinarily, in matters like the current one, costs follow the result whilst punitive
cost orders are only to be made in circumstances where the conduct of a litigant
warrants a deviation from the ordinary rule. Nothing in the conduct of the mine
suggests that a punitive order is warranted,
[44] But another issue arises here, which I have canvassed with counsel at the
hearing, The interim order provides that the respondents be held liable for the costs
(until and including 7 August 2025) on an attorney and client scale, That cost order is
a self-contained order and not subject to the rule nisi. If I order that the remaining costs
16
be paid by the mine on a party and party scale, it will effectively mean that - although
the respondents have succeeded in the end - they will be liable for the larger part of
the costs. This is because costs on a party and party scale are substantially lower than
an attorney and client costs.
[45) For that reason, and in the interest of fairness, I will award the costs relating to
the events after 7 August 2025 to be paid by the mine on an attorney and client scale.
For the taxing master's benefit, I confirm that had I granted a party and party cost
order, I would have ordered it to be payable on scale B. Although serious, the matter
is not that complex to warrant costs on scale C. The matter also does not present
novel legal principles or constitutional issues.
Order
[46] For the reasons set out above, the rule nisi is discharged and the application
dismissed with costs on an attorney and client scale, which costs exclude the costs
taxable under the order granted by this Court on 7 August 2025.
SCHUTTE AJ
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MIDDELBURG
17
Appearances
For the applicant: Adv Maritz
For the first, third,
fourth and fifth respondents: Mr Mahlangu
Date heard: 22 July 2026
Judgment delivered: 05 August 2026
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