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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
(2)
(3)
REPORTABLE : YES/NO
OF INTEREST TO THE JUDGES : YES/NO
REVISED.
CASE NO: 2026-130603
DATE: 20/08/2026 SIGNATURE ..
In the matter between:
ELI STROH FAMILY HOLDINGS (PTY) LTD
STROH FAMILIE LANDGOED (PTY) LTD
And
NAKEDI SOLUTIONS (PTY) LTD
SEBOIKANA VICTOR CHEPAPE
HENDRIK WILLEM LE ROUX
First Applicant
Second Applicant
First Respondent
Second Respondent
Third Respondent
Delivered: This judgment is handed down electronically by circulation to the parties
through their legal representatives' email addresses. The date for the hand-down is
deemed to be 20 AUGUST 2026.
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JUDGMENT
Makoti AJ
Introduction
[1] This is an opposed application that was heard as part of this court's urgent roll.
The applicants want the court to declare the respondents to be in contempt of
court for their failure to comply with a court order of 8 July 2025. The applicants
want imprisonment to be imposed on the second respondent for a period of six
(6) months but want the sanction to be suspended for 4 months on the
condition that the respondents purge their contempt.
[2] The applicants' complaint is that the respondents are engaging in mining
activities that have been prohibited in terms of the said order. The actions
relate to activities at farms known as Bronkhorstsfontein and Baden despite the
court ordering them to desist from any such activity. They also allege that, in
failing to comply with the court's order, the conduct of the respondents
constituted willful and malicious disobedience of the said order.
[3] The spectrum of the issues to be traversed in this judgment is the following:
[2.1] The question of urgency;
[2.2] Whether the respondents are in contempt of court. If so, what would be
the appropriate relief; and
[2.3] the question of costs.
[4] I will address the issues in the order as they appear in the preceding
paragraph. For the sake of convenience, I will refer to the applicants as Eli
Stroh and to the respondents by their abbreviated names. They are Nakedi,
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Victor and Hendrick, respectively. The first and second respondents actively
oppose the application.
Whether the application is urgent
[5] Urgency is to be viewed primarily through the averments that are made by Eli
Stroh. Two considerations reign paramount. The first concerns the allegations
that the applicant avers render the application urgent. The second
consideration interrogates the question of whether the applicant will have
substantial redress if the matter were to be heard on a date in the future.1
[5] Eli Stroh alleges that the application is urgent because contempt applications
are treated as such. To that extent, the applicants are wrong and misguided. An
application is not urgent because of its nature but because there exist facts
which, objectively viewed, render the case urgent. On this note I am in full
accord with the expression of Wilson J in Volvo Financial Services Southern
Africa (Pty) Ltd v Adamas Tkolose Trading CC. 2
[6] Regardless of the nature of a case, a party seeking to jump the queue of
litigation must invoke the court's discretion by providing the court with
satisfactory facts. An applicant that simply throws generic references such as
'inherently urgent' to litigation will hardly satisfy the court that its case deserves
a front-row seat.
[7] Over fourteen years ago, Weppenar J cautioned in In Re: Several Matters of
the Urgent Court Ro/13 about abuses of urgent court processes. He said, inter
alia, the following:
1 Luna Meubel Vervaardigers v Makin and Another 1977 (4) SA 135 (W); Nelson Mandela Metropolitan
Municipality v Greyvenouw CC (3263/02) [2003] ZAECHC 5; 2004 (2) SA 81 (SE) (21 February 2003) at
paras [37] to [40].
2 Volvo Financial Services Southern Africa (Pty) Ltd v Adamas Tkolose Trading CC (2023/067290) [2023]
ZAGPJHC 846 (1 August 2023) para [6].
3 In re: Several matters on the urgent court roll [2012] ZAGPJHC 165; [2012] 4 All SA 570 (GSJ); 2013 (1)
SA 549 (GSJ) (18 September 2012).
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"(8] ... Practitioners are setting matters down in the urgent court for flimsy
and inadequate reasons. This practice needs to be discouraged."
[8] Sadly, this abusive practice by litigants has not stopped. The participating
respondents opposed the application on the grounds also that the application is
not urgent. Despite this, the applicants did not bother to advance the case for
urgency further. Perhaps this was because of their mistaken belief that they
deserved to be in urgent court, because the case concerned disrespect to a
court order.
[9] It is apt that I quote what Wilson J said in Volvo Financial Services, supra,
about the notion that contempt proceedings are inherently urgent. He said the
following:
"7 It is sometimes said that contempt of court proceedings are inherently
urgent . . . I do not think that can be true as a general proposition. I
accept that the enforcement of a court order may well qualify as urgent,
in situations where time is of the essence, but it seems to me that
contempt proceedings entail the exercise of powers which often
demand the kind of careful and lengthy consideration which is generally
incompatible with urgent proceedings. For example, it cannot be sound
judicial policy to commit someone to prison, even where the committal
is suspended, or to impose a fine, on an urgent basis, simply because
that might be the only way to enforce a court order. There must, in
addition, be some other feature of the case that renders it essential that
the court order be instantly enforced, such that the penalties associated
with contempt require immediate imposition."
[1 O] I share the views of Wilson J's sentiments that there is no category of cases
that are inherently urgent, and I do not see the need to add more to the dicta
expressed above. This case lacks urgency. The applicant did a poor job of
addressing why this application should be treated as such. Ordinarily, this
should be the end of the proceedings, as there is simply not enough to sustain
should be the end of the proceedings, as there is simply not enough to sustain
urgency. I, however, proceed to deal with the substance of the application, as I
believe that the parties will benefit from a decision on the merits.
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The court order in respect of which contempt is based
[11] This application is founded on the back of an order that was granted against
the respondents ex parte. The court order prohibited the respondents from
pursuing mining activities, or anything connected with mining, on the farms
Bronkhorstfontein and Baden. The order partially reads as follows:
"Interdicted and restrained and/or their employees/contractors or agents
from conducting any mining activities and any activities preparatory,
ancillary or incidental to mining, including without limitation to any
cutting or clearing of vegetation, any establishment of roads, any
construction or installation of buildings, infrastructure or equipment and
any drilling, excavation, digging, or removal of soil or coal, ore or any
mineral on farms Bronkhorstfontein No. 42 RL and Baden No. 90 RL,
situated in the Blouberg Local Municipality ( ... ) ... unless and until at
least, cumulatively, the following have transpired:
3.1.1 Directing the Fourth Respondent, the Department of Water and
Sanitation to provide any directive or notices issued to the First
Respondent, within twenty-one days of the date of this order to
the applicants.
3.1.2 Directing the Fourth Respondent, the Department of Water and
Sanitation to provide their report and letters as to the outcome of
the investigations of the mining area within (21) twenty-one days
of the date of this order to the Applicants.
3.1.3 Directing the Second Respondent, the Department of Minerals
and Energy to provide the following information or documents
within twenty-one days of this order to the applicants:
3.1.3.1 The mining rights application submitted to the Second
Respondent by the Second Respondent.
3.1.3.2 The Mining Work Program for the mining area authorised
by the Second Respondent.
3.1.3.3 The Environmental Management Plan.
3.1.3.4 Proof of compliance with section 10 of the Mineral
Petroleum Resources Development Act, 28 of 2002;
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3.1.3.5 Proof of compliance with the Interim Protection of
Informal Land Rights Act, 31 of 1996 ("IPILRA").
"
[11] The expansive nature of the order is palpable. When they get that extensive
and limiting of established rights, court orders ought not to be sought ex parte. I
do not seek to determine the question whether the court order was granted
correctly or inappropriately, lest I get into the temptation of reviewing another
court's decision. Eli Stroh accuses the respondents of maliciously disrespecting
the court's order by performing functions and activities on the farms that relate
to the prohibited mining activities.
[12] Although Eli Stroh obtained the court order ex parte, with a rule nisi that was
returnable on a specified date, they did not do enough to ensure that the
Departments are brought to its knowledge and actually comply with its terms or
the directives contained in its paragraphs 3.1.1 to 3.1.3. That essentially meant
that the relevant government departments and functionaries stood no chance of
complying with the court's order, and to do so within the stipulated period of 21
days. That period has long passed.
[13] The applicants had no good answer when asked about service of the order, or
rather the failure to serve, of the court's order. In the meantime, the rule nisi in
terms of the court order was, on 16 September 2025, extended to 28 January
2027.
[14] While the first rule nisi was operational, in December 2025, per Ngobeni J, an
amendment of the order was granted in the case. The respondents did not
oppose the application for amendment. The order that was granted in
December 2025 retained the substance of the earlier order. The amended
order still prohibited the respondents from performing any mining activities or
anything that is connected to or ancillary to mining. The applicant in the second
case was one Hendrik Willhem Roux. He is a party and respondent in this
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application. Thus, with knowledge of the initial order, he filed an application
under a different case seeking the same relief.
[15] Eli Stroh approached the court and asked for orders that clearly required
compliance by the cited state departments in 21 days. It is not fathomable why
the court order was not served on the two state departments. There can simply
be no excuse for such failure. When probed on whether the applicants served
the order on the State Departments, their lawyer responded by saying that it
was 'not for the applicant to take any steps with regard to what the court
ordered vis-a-vis the State Respondents '. The applicant did not confirm that it
had served the orders on the Departments, rendering a response that can best
be described as of an evasive nature.
[16] The picture that emerges, worryingly, is that the applicants may be using the
court order and rule nisi to prevent the first respondents from using the affected
farms in any manner whatsoever. I struggle to understand how, on 16
September 2025, Eli Stroh asked the court to extend the return date for the rule
nisi to January 2027. They obtained the order urgently and ex parte, but the
urgency died to a point where the rule nisi was extended by a period of more
than a year. I leave the point at this stage as I am not called upon to decide that
issue.
Whether the respondents are guilty of contempt
[17] In defense of the application, Nakedi stated that it did not mine nor extract any
minerals from the affected farms. The respondents found the order to be
confusing and had to obtain a legal opinion from senior counsel on how to deal
with it. On advice from senior counsel, Nakedi sought to comply with the court
order. Not entirely, it seems. Apart from that, the respondents also embarked on
a separate application to have the orders and the rule nisi anticipated and
discharged or set aside.
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[18] The respondents also averred that they had perceived that the order had
reached its finality. This was since the date on which the State Departments
had to deliver documents had passed. Such confusion was cleared by an
opinion that they obtained from their legal representative. Eli Stroh, appearing
confused itself, says that Nakedi ought to comply with the order at least from 26
February 2026. That is the date on which clarity was provided to the
respondents about the implications of the order.
[19] I delve not, for purposes of this application, into the problems that the
respondents contend engulf Eli Stroh's application and the orders that were
granted. The question that I should address is whether, given the conduct of
the respondents, an order holding them in contempt should be granted. The
law on contempt proceedings in civil matters has become settled. The principal
issue in these contempt proceedings is whether the respondents are in
contempt of the Court order. For this type of relief, the applicant must prove the
following:
[19.1] the existence of a court order;
[19.2] service or notice thereof;
[19.3] non-compliance with the terms of the court order; and
[19.4] wilfulness and mala tides beyond reasonable doubt.
[20] To find in favour of the applicants and against the respondents, I must find the
existence of the four elements listed above. There is no controversy in respect
of the first two elements. This is because Nakedi has not admitted that it has
failed to comply with the court order.
[21] In our law, once the three elements have been established, a presumption may
be held that the non-compliance was ma/a fide and willful. In such a case the
contemnor would have to adduce sufficient evidence to create a reasonable
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doubt about the existence of willfulness and malice. Should the contemnor
prove unsuccessful in discharging this evidential burden, contempt will be
established.
[22] At the heart of this application lie both the third and fourth elements. More so
the fourth element. The authority in terms of the seminal Fakie NO. v CCII
Systems (Pty) Ltd4 provides the test or guidance. In that case, the court held,
inter a/ia, that:
"9. 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)." [Notes excluded ]
[23] As I understand it, it is not just the mere failure to obey a court order that would
lead to a finding of guilt for contempt. The disobedience must have been willful
and in bad faith. Cameron JA made that point clear in the subsequent
paragraph, as follows:
"10. These requirements - that the refusal to obey should be both wilful and
mala fide, and that unreasonable non-compliance, provided it is bona
fide, does not constitute contempt - accord with the broader definition
of the crime, of which non-compliance with civil orders is a
manifestation. They show that the offence is committed not by mere
disregard of a court order, but by the deliberate and intentional violation
of the court's dignity, repute or authority that this evinces. Honest belief
that non-compliance is justified or proper is incompatible with that
intent." [Emphasis added]
[24] I also understand it to be part of the defense that the order, at least up to 26
February 2026, was confusing. Eli Stroh seems to accept this to be the
February 2026, was confusing. Eli Stroh seems to accept this to be the
position, at least from the correspondences that have been exchanged
4 Fakie NO v CCII Systems (Pty) Ltd (653/04) [2006] ZASCA 52; 2006 (4) SA 326 (SCA) (31 March 2006).
between the parties. It suggested that Nakedi ought to have complied with the
court order from the said date.
[25] Loyalty to the law on contempt must be understood to not being merely for
punishing the contemnor but to see to it that the rule of law is protected. The
Constitutional Court in S v Mamabo/o5 held that the purpose of a finding of
contempt of court is to protect the fount of justice by preventing unlawful
disdain for judicial authority. Discernibly continual non-compliance with court
orders imperils judicial authority.6 Where the judiciary cannot function properly,
the rule of law will die.
[26] An order that is not fully understandable may result in its terms not being
complied with. In such circumstance, the failure to comply with an order can
hardly be said to be contemptuous. Thus, where non-compliance is proven, the
next step should be to inquire if the failure to act in accordance with its terms
was willful and ma/a fide. From the facts that I have already traversed, the
alleged non-compliance with the court order could not have been ma/a fide, at
least up to 26 February 2026.
[27] Nakedi explained its activities in its answering affidavit. It says that the activities
that it conducted on the farms were not mining. Eli Stroh, on the other hand,
contends that the activities have been prohibited by the Court order as they are
incidental to mining. The activities include keeping the mining site maintained.
In addition, Nakedi indicated that it had conducted dry testing of equipment. For
that purpose, it used material that was previously extracted from a pre-existing
mining dump. On its understanding, Nakedi refuted that any of those activities
amounted to mining activities that were prohibited in terms of the court order.
[28] Eli Stroh contends that the admission that Nakedi performed those activities is
proof that it and its directors are guilty of contempt. This is quite simplistic as an
5 2001 ZACC 17; 2001 (3) SA 409 (CC) at para 24.
5 2001 ZACC 17; 2001 (3) SA 409 (CC) at para 24.
6 Matjhabeng Local Municipality v Eskom Holdings Limited and Others 2018 ( 1) SA 1 (CC) at paras 4 7 & 48.
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approach. I say so because the evidence provided by the respondents was that
it had already ordered equipment from China by the time when the order was
first obtained. The equipment was in shipment, and it received it on the
premises. Further, when delivery was made, the machine had to be tested for
functionality , hence the dry testing.
[29] Reality dictates that the respondents could, at the very least, be expected to
receive a shipment that they had ordered. How else were the respondents to
receive delivery, if not at the designated address? To hold otherwise would be
to lose pragmatism. Assuming that the shipment could be received at a storage
facility, that would mean that the respondents were to incur the costs of storage
and related costs. The established facts in my view belie the notion of willful
and malicious non-compliance.
[30] Eli Stroh relied on photographic images for the contention that Nakedi was
busy with prohibited activities. The respondents raised two contentions about
the photographs. First, that the photographs were inadmissible evidence, and
second, that, even if they were to be admitted, they still did not prove the case
for contempt.
[31] Concerning the works that Eli Stroh had complained about, the respondents
indicated that the premises had previously had extensive works. There were
also stockpiles of manganese that the previous owner had left on the mine
premises. Further, it cleared vegetation on the property as a maintenance or
safety measure. The essence of Nakedi's contention was that the images
displayed were consistent with an area of an already mined property. Further,
Nakedi argued that the photographs did not constitute evidence of something
that happened after the date of the court order.
[32] In its terse reply, Eli Stroh attached still images that were allegedly taken from
July 2025 to June 2026. It sought to rely on the images, including Google
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Images, for a contention that mining activities were increased during the period
under consideration. The contention was also that Nakedi was not truthful with
its statement that it only cleared vegetation from the property. Of importance,
Eli Stroh did not address the question of admissibility of the photographic
images that were relied on for founding the application. It simply produced
more photographs, with the deponent to the affidavit asserting some
competence as a valuer. I do not get to deal with this question in this judgment.
[33] Backed by the admissions that Nakedi received equipment, dry-tested the
equipment, cleared vegetation, etc., I accept that there were elements of failure
to fully comply with the terms of the order. I however, on the established facts,
any non-compliance with the order was not willful nor malicious. For some time,
the order was confusing and the respondents believed that it had been
overtaken by events.
[34] In Lujabe v Moruatona,7 to which Nakedi relied, the Court held, amongst
others, as follows:
"[17] The issue that arises in a case where the settlement agreement has been
made an order of Court and in the context of contempt proceedings is
whether such an order is executable or enforceable. The basic principle
is that for an order to be executable or enforceable, its wording must be
clear and unambiguous. An order that lacks clarity in its wording or is
vague is incapable of enforcement. The other basic principle is that the
order should as soon as it is made, be readily enforceable. In other
words, the order must give finality to the dispute between the parties
and not leave compliance therewith to the discretion of the party who is
expected to comply with such an order."
[35] As I pointed out, the order was neither clear nor unambiguous. This is because
the order, while it prohibited resumption of mining, would have had to engage in
an interpretive exercise to understand its full implications. The question that
an interpretive exercise to understand its full implications. The question that
7 Lujabe v Maruatona (35730/2012) (2013] ZAGPJ HC 66 (15 April 2013).
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comes to mind is what, in the context of the order, could Nakedi do on the
farms? It contended that its clearing of vegetation was a necessary
maintenance exercise. I agree with the viewpoint. I have already dealt with the
question relating to receiving the equipment. The notion that the equipment
should not have been received at the farms because it is an activity that is
incidental to mining, inter a/ia, has pragmatic difficulties. I struggle to fathom
how to accept and work with that contention. Where would it have been kept,
and at whose costs?
[36] The explanations proffered by the respondents are understandable. More than
that, they are acceptable. Eli Stroh relied on Meadow Glen Home Owners
Association and Others v City of Tshwane Metropolitan Municipality and
Another3 to suggest that the respondents ought to have made good faith
endeavours to comply with the order. This is binding authority. However, the
applicants ignore the fact that the respondents initially understood the order to
have expired after 21 days. Also, they did take legal advice from their lawyers,
after which it was confirmed that the order still had to be complied with. It is not
upon me to criticize them for taking what may not have been the best choice.
[37] There are photographs that Eli Stroh used as proof of mining. The submissions
made by the respondents in respect of the photographs and the undisputed
factual averments made in the answering affidavit establish a reasonable
doubt. On that basis, also, I am unable to find the respondents guilty of
contempt of court.
Court's order
[38] The following order is made:
"[a] The application is dismissed with costs on a party-and-party scale "B".
8 2015 (2) SA 413 (SCA).
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[e] The costs are to include the costs for the employment of counsel.
APPEARANCES
FOR APPLICANTS
FOR RESPONDENTS
HEARD ON
DELIVERED ON
MOKGERWA MAKOTI
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
J MATTHEE
MACROBERT ATTORNEYS INC
c/o ESPAG MAGWAI ATTORNEYS
POLOKWANE
HWS MARTIN
WJJ BADENHORST INC
c/o DU TOIT SWANEPOEL STEYN
AND SPRUYT ATTORNEYS
POLOKWANE
23 JUNE 2026
20 AUGUST 2026