IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not reportable
Case no:2026-167870
In the matter between:
MALAMANI MINING AND EXPLORATION
(PTY) LTD APPLICANT
and
BATSHWENENG COMMUNAL PROPERTY
ASSOCIATION FIRST RESPONDENT
BATSHWENENG DUE RISE VENTURES
(PTY) LTD SECOND RESPONDENT
ANY AND ALL PERSONS ASSOCIATING
THEMSELVES WITH THE FIRST
AND/OR SECOND RESPONDENTS
AND/OR ACTING ON THEIR
INSTRUCTIONS IN THE UNLAWFUL
2
ACTIONS DETAILED IN THE
FOUNDING AFFIDA VIT THIRD RESPONDENT
PROVINCIAL COMMISSIONER,
SOUTH AFRICAN POLICE SERVICE,
NORTH WEST PROVINCE FOURTH RESPONDENT
THE STATION COMMANDER:
OTTOSHOOP SAPS FIFTH RESPONDENT
Coram: Wessels AJ
Heard: 7 August 2026
Delivered: This judgment was handed down electronically, circulated to the
parties’ representatives via email, uploaded to CaseLines, and released to
SAFLII. The date and time for the handing down of the judgment are deemed to
be 14h00 on 31 August 2026.
Summary: Urgent interdict restraining removal of historical rock dumps pending
a mineral rights dispute – prima facie right, apprehension of harm and balance of
convenience favour the applicant – rule nisi granted with interim effect – costs of
an earlier postponem ent recalled under Uniform Rule 42(1)(a) and awarded
against the applicant.
JUDGMENT
3
Wessels AJ
Introduction
[1] This is a semi-urgent application in which the applicant (‘Malamani’), seeks
a rule nisi with interim interdictory relief pending a return date. The relief sought
restrains the first to third respondents from removing, disposing of or otherwise
dealing with certain historical rock dumps and tailings on the Remaining Exten t
of the Farm Windheuwel 86 JO (‘the property’), restores Malamani’s undisturbed
access to the property and interdicts interference with its prospecting and bulk
sampling operations there. The fourth and fifth respondents are cited only for
enforcement purposes and take no substantive position.
[2] The first respondent is the Batshweneng Communal Property Association
(‘the CPA’), the registered owner of the property. The second respondent,
Batshweneng Due Rise Ventures (Pty) Ltd (‘Due Rise’), is the CPA’s commercial
arm. I refer to the first and second respondents collectively as ‘the respondents’,
and individually where I need to differentiate. The papers before me do not
identify any role for the third respondent distinct from that of the CPA and Due
Rise, and nothing turns on the third respondent for present purposes.
[3] Malamani holds a prospecting right over the property, granted in respect of
aggregate, copper ore, gold ore and silver ore, together with permission for bulk
sampling. The prospecting right’s initial term expired on 27 November 2023, but
a renewal application was lodged before expiry and remains outstanding, so that
the prospecting right remains in force by reason of s18(5) of the Mineral and
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Petroleum Resources Development Act1 (‘the MPRDA’), pending determination
of that application.
[4] The dispute between the parties concerns historical rock dumps and tailings
on the property, which Malamani alleges contain gold-bearing material worth
more than R225 million. Malamani claims the exclusive right to deal with this
material on the strength of the prospecting right and a written agreement termed
a Binding Heads of Agreement concluded with the CPA on 1 Mar ch 2017, as
amended on 8 November 2017 (‘the 2017 agreement’). The respondents state that
the dumps are historical assets that fall outside the scope of the prospecting right
and belong to the CPA as landowner.
[5] What triggered the application, on Malamani’s version, was a sequence of
events that unfolded over a period of about five weeks. On 22 June 2026
Malamani discovered that Due Rise had obtained a hazardous waste transporter
certificate from the North West Department of Economic Development,
Environment, Conservation and Tourism. That certificate permits the holder to
remove material classified as hazardous waste. Once Malamani became aware of
this certificate, it requested the CPA to give an undertaking that the dumps would
not be removed while the parties’ dispute remained unresolved. The CPA refused
to give such an undertaking. Shortly after that refusal, a tractor loader backhoe
(‘TLB’) appeared at the dumps. Malamani states that a TLB is used to load and
remove bulk material and is not what one would expect to see if the dumps were
simply being cleared for grazing. Then, on 28 July 2026, on Malamani’s version,
its representative was physically denied access to the property. Malamani placed
this ultimate event before this Court by way of a supplementary affidavit, which
it filed on 29 July 2026, after the founding, answering and replying affidavits had
1 Mineral and Petroleum Resources Development Act 28 of 2002.
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already been exchanged. On Malamani’s version, taken together, these four
events indicate that what had been a longstanding dispute had, within a few
weeks, turned into a situation where removal of the material was no longer a
possibility but an immediate threat. Malamani relies on this to establish the
urgency of the application.
[6] The matter first came before me on 31 July 2026 and was postponed to 7
August 2026, when it was argued. I deal at the end of this judgment, under a
separate heading, with the reason and costs of that postponement.
Urgency
[7] Rule 6(12)(a) requires an applicant in an application for urgent relief to set
out explicitly the circumstances rendering the matter urgent and why substantial
redress cannot be afforded in the ordinary course. The respondents state that the
ownership dispute is longstanding and that parties attended unsuccessful
mediation facilitated by the Department of Mineral Resources and Energy as far
back as 28 April 2026. Additionally, Malamani admits that removing the rock
dumps and tailings cannot be achieved overnight.
[8] A long-standing ownership dispute exists between the parties. However,
Malamani’s specific allegations regarding the hazardous waste transporter
certificate, the refusal of an undertaking, and machinery appearing at the dumps
are recent events. These events relate more to the urgency of removal rather than
the dispute’s merits. I am convinced that the urgency of the application warranted
a deviation from standard timeframes and procedural rules. I will now consider
the merits.
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Requirements for an interim interdict
[9] The following requirements for an interim interdict are trite: a prima facie
right, though open to some doubt; a well- grounded apprehension of irreparable
harm if interim relief is not granted and the applicant ultimately succeeds; that
the balance of convenience favours the grant of interim relief; and the absence of
any other satisfactory remedy. Where the right is prima facie established on that
basis, the court is not required, at the interim stage, to resolve any underlying
disputes.
Prima facie right
[10] The test for a prima facie right in an application for an interim interdict was
authoritatively stated in Webster v Mitchell
2 as follows:
‘The use of the phrase 'prima facie established though open to some doubt' indicates I think
that more is required than merely to look at the allegations of the applicant, but something short
of a weighing up of the probabilities of conflicting versions is required. The proper manner of
approach I consider is to take the facts as set out by the applicant, together with any facts set
out by the respondent which the applicant cannot dispute, and to consider whether, having
regard to the inherent probabilities, the applicant could on those facts obtain final relief at a
trial. The facts set up in contradiction by the respondent should then be considered. If serious
doubt is thrown on the case of the applicant he could not succeed in obtaining temporary relief,
for his right, prima facie established, may only be open to 'some doubt'. But if there is mere
contradiction, or unconvincing explanation, the matter should be left to trial and the right be
protected in the meanwhile, subject of course to the respective prejudice in the grant or refusal
of interim relief.’
2Webster v Mitchell 1948 (1) SA 1186 (W) at 1189.
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[11] Malamani contends that the prospecting right extends to minerals in, on and
under the property and that the dumps are on the property. Malamani furthermore
contends that the MPRDA’s definitions of ‘mine’ and ‘residue deposit’ bring
historical dumps within its prospecting right regardless of when they arose.
[12] The respondents’ answer focuses on the wording of the prospecting right
itself. It grants permission, under s 20(1) of the MPRDA, to remove minerals
found during prospecting operations, but only in such quantities as are required
for testing, identification or analysis. Sections 5(1)(c) and 19(1)(c)
correspondingly confine a prospecting right holder to material found in the course
of prospecting, and not to bulk removal, save where the Minister has given written
permission for bulk sampling under s 20(2). The respondents point out that
Malamani’s founding papers concede that the dumps are historical and pre -date
its prospecting activity and that no ministerial permission covers the bulk
removal. To this, Malamani answers that its screening and re-stockpiling activity
since 2018 converted the dumps into the product of its own prospecting
operations. I am not enjoined to resolve that dispute now. It is sufficient that the
proper construction of the prospecting right is an arguable point.
[13] Malamani also relies on the 2017 agreement, which it says grants
undisturbed access for prospecting purposes and evidences the CPA’s knowledge
of, and consent to, its work on the dumps. The CPA states that the 2017 agreement
was validly cancelled on 5 August 2024 for breach and is in any event invalid for
want of authorisation under s12(1) of the Communal Property Associations Act
3,
which calls for the encumbrance of communal land only with the consent of the
majority of the members of the CPA present at a general meeting of members.
Malamani disputes the cancellation as an unaccepted repudiation. This dispute is
3 Communal Property Associations Act 28 of 1996.
8
not before me at this stage, but it illustrates the contested character of the
underlying rights dispute.
[14] I am satisfied that Malamani has established a prima facie right, open to
some doubt, sufficient to meet the first requirement for interim relief.
Apprehension of harm
[15] The apprehension of harm is well made out in the application. It is common
cause on the papers before me that t he material is finite and valuable . O n
Malamani’s version, the respondents have already contracted with a third party,
Pulamadibogo, for its removal on a profit-sharing basis.
[16] The respondents rely, in part, on the hazardous waste transporter certificate
obtained by Due Rise as justification for removing the dumps. I must mention
that the respondents place too great an emphasis on the purpose of this certificate.
It is a permit to move a substance, once lawfully entitled to do so. This certificate
is silent on who is entitled to instruct that the material be moved, sold or otherwise
dealt with, which is what is in dispute between the parties. Nor does labelling the
dumps as hazardous waste for the purposes of that certificate resolve the dispute.
Whether this residue material falls within Malamani ’s prospecting right is itself
part of the dispute I have already found to be arguable and the hazardous waste
certificate does not resolve that question. If anything, the timing of the certificate,
obtained shortly before the machinery appeared on site and the Pulamadibogo
arrangement came to light, supports Malamani’s apprehension that the true
purpose of the hazardous waste removal is commercial.
[17] What further bolsters the commercial flavour of the removal of the
hazardous waste is that t he respondents allege the dumps were being moved to
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create grazing land. However, c learing land for grazing does not ordinarily
require obtaining a hazardous waste transporter certificate and concluding a
profit-share agreement with a third party to take the material away. No evidence
was put before this Court quantifying the grazing need that is said to be achieved.
I highlight this to show that the grazing explanation does very little, if anything,
to reduce the apprehension of harm on which Malamani relies. There is no
evidence that any genuine grazing need could not be met without removing the
disputed material.
[18] I am satisfied that Malamani has shown a well- grounded apprehension of
harm that is irreparable in the sense relevant to this enquiry, being, once removed
and sold, the material cannot be restored.
Balance of convenience and alternative remedy
[19] The balance of convenience favours preserving the status quo. An interdict
preventing removal pending the return date causes the respondents no real
prejudice beyond delay, since the material is left in place. Malamani, on the other
hand, faces the permanent loss of the subject matter of the dispute if the material
is removed and sold before the rights question is determined.
[20] An award of damages is not a satisfactory alternative remedy either. To this
end, I take into consideration t he one set of financial statements before me,
relating to an entity through which the CPA is said to administer its financial
affairs. It discloses total assets of R4 170 261 as at 28 February 2017, of which
R3 733 500 is game and livestock and only R281 333 is property, plant and
equipment. Even taking the full balance sheet into account, I am not persuaded
that the respondents are presently in a position to satisfy a judgment approaching
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the value of the rock dumps and tailings, most of the entity's assets being illiquid
and unrelated to the dispute.
[21] On the conspectus of evidence presented to this Court, Malamani is entitled
to the rule nisi it seeks, operating with immediate interim effect pending the return
date.
Conclusion
[22] For these reasons, the interim relief set out in paragraphs 1 to 3 of the notice
of motion stands to be granted. I turn now to the costs of the postponement of 31
July 2026.
Costs
[23] When the matter first served before me on 31 July 2026, I had been given
access to the file on Caselines only late the afternoon of 30 July 2026 and had not
been able to read the papers due to an already congested roll for 31 July 2026.
The matter was postponed to 7 August 2026 to allow me the opportunity to do so,
and no order as to costs was made on that occasion. Although Adv Scholtz
appeared for Malamani on 7 August 2026, Adv B Riley was on brief and appeared
for Malamani on 31 July 2026. Importantly, only Adv B Riley appeared before
me on 31 July 2026 and did not protest when I confronted him with the late access
granted to the Court.
[24] To avoid confusion, it should be recorded that Adv B Riley is a different
person from Adv N Riley, who appeared throughout for the respondents. Counsel
for the respondents applied for the order of 31 July 2026 to be recalled and
replaced with an order that Malamani pay the wasted costs of the postponement.
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His submission was that the respondents were ready to proceed on 31 July 2026
and were not the cause of the postponement, which resulted from Malamani’s
attorneys uploading the court bundle to CaseLines at a very late stage. He
informed this Court that he had been present at Court in person on 31 July 2026,
not on the virtual platform. He had not appreciated that the hearing was to
proceed on a virtual platform and was not present on the virtual platform to
address me on the issue of costs on 31 July 2026.
[25] Counsel for Malamani resisted this submission by respondents’ counsel,
submitting that the difficulty in giving timeous access to the Court to the
Caselines court bundle lay with the Registrar rather than with Malamani’s
attorneys and that I should not disturb an order made on 31 July 2026. Being an
officer of the Court, I have no difficulty accepting this submission of counsel for
the respondents. Because counsel for the respondents was not before this Court
when the order of 31 July 2026 was made and was not heard on the question of
costs, that order was granted in the absence of a party affected by it within the
meaning of Uniform Rule 42(1)(a), and I am accordingly entitled to revisit it.
[26] This division’s roll is heavily burdened, and it is released to practitioners in
early course so that a matter enrolled before a particular judge can be prepared
and brought to that judge’s attention soon after the roll closes in the previous
week. This was not a matter of such urgency that it could be brought to this Court
overnight. The application had to be ready and prepared by the time the roll
closed on 24 July 2026 and brought to my attention as soon as possible thereafter.
On 28 July 2026 at 14:52 the Registrar released the roll to all practitioners
concerned, indicating that the matter was to be served before me. There could,
consequently, be no excuse for access to the papers to be granted only in the
consequently, be no excuse for access to the papers to be granted only in the
afternoon of 30 July 2026. Access to the court file on Caselines was squarely
within the applicant’s control. I am not persuaded that a mishap in the office of
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the Registrar accounts for what was, in substance, a failure to bring the matter to
my attention timeously once the roll had closed.
[27] An order that a party pay the costs occasioned by its own want of diligence,
where that want of diligence caused a properly prepared respondent to attend
court unnecessarily, should in these circumstances not attract a punitive order. It
simply follows the ordinary rule that costs follow the cause of the wasted
appearance. I accordingly recall the order of 31 July 2026 and replace it with an
order that Malamani pay the wasted costs of the postponement of 31 July 2026,
on a party-and-party scale, Scale B.
[28] The costs of the application argued on 7 August 2026 stand on a different
footing as the underlying dispute remains to be determined on the return date and
it is appropriate that those costs be reserved for determination then, together with
the costs of the return day itself.
Order
[29] For these reasons, the following order is made:
1 A rule nisi is issued, returnable on 11 February 2027, calling upon the first
to fifth respondents to show cause, if any, why an order should not be made
in the following terms:
(a) the first, second and third respondents are interdicted and restrained
from removing, disposing of or otherwise dealing with the rock
dumps, tailings and stockpiles situated on the Remaining Extent of
the Farm Windheuwel 86 JO (‘the property’);
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(b) the applicant’s undisturbed access to the property is restored;
(c) the first, second and third respondents are interdicted from
interfering with the applicant’s prospecting and bulk sampling
operations on the property.
2 Pending the return date, paragraph 1 operates as an interim order with
immediate effect.
3 Should the first, second and third respondents fail to comply with
paragraph 1 of this order, the sheriff is authorised, assisted if necessary by
the fourth and fifth respondents, to enforce compliance.
4 The order made on 31 July 2026 that there be no order as to costs is recalled
and set aside and is replaced with an order that the applicant pay the wasted
costs occasioned by the postponement of the matter on that date, such costs
to be taxed on Scale B.
5 The costs of the application argued on 7 August 2026 are reserved for
determination on the return date.
_____ _________
M WESSELS
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
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Appearances
For the applicant: Adv H Scholtz
Instructed by: CJP Oelofse Attorneys
Mahikeng
For the first and second
respondent: Adv N Riley
Instructed by: Morweng Attorneys
Mahikeng