IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO: 2025-102983
In the matter between:
NAMBITI PRIVATE GAME RESERVE (PTY) LTD Applicant
and
GANGENI SAFARIS CC First Respondent
RICHARD LEMMER Second Respondent
ANELLE LEMMER Third Respondent
_________________________________________________________________
ORDER
The following order is granted:
1. The rule nisi issued on 8 July 2025 is confirmed, on an interim basis, in the
terms of paragraphs 2.1, 2.2, 2.3, 2.4, 2.5 and 2.6 of the notice of motion, pending
the final determination of the actions instituted by the applicant under case number
2026-057854 and by the first respondent under case number 2026 -078895, or
until varied or discharged by a court of competent jurisdiction, whichever occurs
first.
2. The third respondent is finally interdicted and restrained from:
2.1 harassing, intimidating or threatening the applicant's management staff and
guards; and
2.2 publishing or uttering, whether orally, in writing or on any social media
platform, any statement imputing that the applicant's management staff or
guards are complicit in, or turn a blind eye to, poaching or other unlawful
2
activity on the reserve, or that the applicant's management is dishonest in
its dealings with the first respondent.
3. The respondents shall pay the applicant's costs of the application up to and
including 8 July 2025.
4. The costs of the application from 9 July 2025 to date, including the costs of
the opposed hearing, shall be costs in the action in case number 2026 -057854
and case number 2026 -078895, to be determined by the trial court seized with
those actions.
________________________________________________________________
JUDGMENT
Marion AJ
Introduction
[1] This is the extended return day of a rule nisi granted by consent on 8 July
2025, in terms of which the applicant, Nambiti Private Game Reserve (Pty) Ltd
(Nambiti), sought interim and final interdictory relief against the first respondent,
Gangeni Safaris CC (Gangeni), and the second and third respondents, Mr Richard
Lemmer and Mrs Anelle Lemmer (Mrs Lemmer) , the sole members of Gangeni
(the first, second and third respondents will collectively be referred to as ‘the
respondents’).
[2] The applicant sought the following relief in its notice of motion:
‘2.1. that, for so long as the written agreement, concluded between the Applicant and
the First Respondent which is annexure “A” to the Founding Affidavit, remains extant, the
Respondents be and are hereby interdicted and restrained from, in any way, interfering
with or preventing the Applicant's access to the First Respondent's property described as
Portion 5 (of 3) of the Farm Driefontein 1092, in extent 657,3954 Hectares (“the First
Respondent's property”), which access is provided for in clause 5 of the agreement;
2.2. that, for so long as the written agreement, concluded between the Applicant and
the First Respondent which is annexure “A” to the Founding Affidavit, remains extant, the
Respondents be and are hereby interdicted and restrained from, in any way, interfering
Respondents be and are hereby interdicted and restrained from, in any way, interfering
with or preventing the anti -poaching guards employed by the Applicant from their access
3
to the First Respondent's property, which access is required in the performance of their
duties as provided for in clause 9.4 of the agreement;
2.3. that the Respondents be and are hereby directed to remove or take down any and
all signage put up by the Respondents, that serve to prohibit the Applicant's ingress to and
egress from the First Respondent's property;
2.4. that the Respondents be and are hereby interdicted and restrained from interfering
with or preventing access to and traversing of the First Respondent's property by game
viewing vehicles of the Applicant or the lodges on Nambiti Private Game Reserve;
2.5. that the Respondents be and are hereby interdicted and restrained from interfering
with or preventing the driving on and traversing of the First Respondent's property by the
management of the Applicant;
2.6. that the Respondents be and are hereby interdicted and restrained from interfering
with or preventing the four game guards employed by the Applicant and located on the
First Respondent's property from their access to the First Respondent's property and from
performing their security and anti-poaching duties;
2.7. that the Third Respondent be and is hereby interdicted and restrained from —
2.7.1. harassing, intimidating or threatening the Applicant's management staff and
guards;
2.7.2. making defamatory, derogatory, and insulting comments and allegations in
respect of the Applicant's management staff and guards;
2.8. that the Respondents, jointly and severally, pay the costs of the application on
Scale B.’
[3] The relief sought, in essence, compels the respondents to permit Nambiti
continued access to, and use of, the property known as Portion 5 (of 3) of the
Farm Driefontein 1092, KwaZulu-Natal, in extent 657,3954 hectares (the property),
pursuant to a written agreement concluded between Nambiti and Gangeni on 14
October 2015 (the agreement) . The access is provided for in clause 5 of the
October 2015 (the agreement) . The access is provided for in clause 5 of the
agreement. Prayers 2.1 and 2.2 address the final relief sought by the applicant.
Prayers 2.3 to 2.6 is for interim interdictory relief. The order seeks to prevent the
respondents from stopping the applicant’s access to the property in any form or
manner. Prayer 2.7 deals specifically with final relief, in respect of interdicting Mrs
Lemmer, because of her prior action s, from harassing, intimidating or threatening
Nambiti's management staff and guards.
4
[4] The application has a lengthy interlocutory history. It was launched urgently
on 8 July 2025 and opposed by the respondents by way of a preliminary
answering affidavit . The applicant filed a preliminary replying affidavit, and the
matter was resolved on an interim basis by a consent order, taken on 8 July 2025.
The rule nisi was thereafter extended on 4 September 2025 by Seegobin J, on
which occasion the matter was adjourned sine die, the rule nisi extended pending
confirmation or discharge, and the applicant directed to file its replying affidavit by
3 October 2025, with costs reserved. Comprehensive answering and replying
affidavits were subsequently exchanged, and the matter was set down and argued
as an opposed application . Both parties delivered heads of argument and a joint
list of common cause and disputed issues in terms of practice directive 9.4.2. Ms
Beket appeared on behalf of Nambiti and Mr Pietersen appeared on behalf of
Gangeni. I am indebted to counsel for their heads of arguments and submissions.
Common cause facts
[5] The parties helpfully narrowed the dispute in their joint list of issues filed.
The following are common cause:
‘1.1 on 14 October 2015 the parties concluded a written agreement in terms of which
Nambiti was entitled to use of Gangeni's property for various purposes particularised in
clauses 5.1 to 5.5 of the agreement;
1.2 the terms of the agreement;
1.3 the respondents disallowed access to the property by the applicant;
1.4 the respondents disallowed such access without first complying with the breach
procedure in clause 17 of the agreement (a breach notice being necessitated prior to any
entitlement to cancel the agreement);
1.5 a compliant breach notice was only sent on 24 July 2025, when the first
respondent’s attorneys, Grant and Swanepoel Attorneys sent a breach notice in terms of
clause 17 of the agreement;
1.6 the first respondent purported to terminate the agreement on 3 September 2025;
1.6 the first respondent purported to terminate the agreement on 3 September 2025;
1.7 during April 2026 an action was instituted by the first respondent seeking
declaratory relief for the cancellation of the agreement inter alia;
1.8 the applicant similarly instituted action against first respondent during March 2026;
and
1.9 both these actions remain pending.’
5
Issues in dispute
[6] The parties identify the following issues as being in dispute:
(a) whether Nambiti breached the agreement by traversing the property on 12
June 2025 and on other occasions;
(b) whether Nambiti failed to manage the habitat on the property, including
alien vegetation control and burning;
(c) whether Nambiti failed to control the elephant population;
(d) whether Nambiti failed to maintain roads on the property;
(e) whether Nambiti's anti-poaching guards conducted themselves properly;
(f) whether Mrs Lemmer harassed or intimidated Nambiti's staff or guards;
(g) whether there are material disputes of fact; and
(h) who should be liable for the costs and on what scale.
[7] I will confine my judgment to the disputes that are applicable to specific
issues in this matter, which will become clearer as the judgment unfolds.
The applicable legal principles
[8] Since the applicant seeks both final relief , in prayers 2.1, 2.2 and 2.7, and
interim relief, in prayers 2.3 to 2.6, it is necessary to set out the requirements
applicable to each form of relief, and the different approach a court adopts to a
dispute of fact depending on which form of relief is sought.
[9] The requisites for a final interdict, established in Setlogelo v Setlogelo ,1
and restated more recently in Hotz v University of Cape Town ,2 are: (a) a clear
right; (b) an injury actually committed or reasonably apprehended; and (c) the
absence of any other satisfactory remedy available to the applicant.3
[10] Where final relief is sought by way of notice of motion, and the respondent
raises a genuine, bona fide dispute of fact on a material issue, the well -known rule
1 Setlogelo v Setlogelo 1914 AD 221 (Setlogelo).
2 Hotz and Others v University of Cape Town [2016] ZASCA 159; 2017 (2) SA 485 (SCA) para 29.
3 See also D E van Loggerenberg Erasmus: Superior Court Practice (RS 30, 2026) (Erasmus) at
D6-18–D6-19.
6
in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 4 applies, namely,
the relief sought can be granted only if the facts stated by the respondent, together
with the admitted facts in the applicant's own affidavits, justify the order. A
respondent's version may be rejected on the papers only where it is so far -fetched
or clearly untenable that it can confidently be rejected without resort ing to oral
evidence.5
[11] The position is different where interim relief is sought. In such a case , the
applicant's right need not be shown on a balance of probabilities. As was held in
Webster v Mitchell:6
‘In an application for a temporary interdict, applicant's right need not be shown by a
balance of probabilities; it is sufficient if such right is prima facie established, though open
to some doubt. The proper manner of approach is to take the facts as set out by the
applicant together with any facts set out by the respondent which 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 up in contradiction by respondent
should then be considered, and if serious doubt is thrown upon the case of applicant he
could not succeed. In considering the harm involved in the grant or refusal of a temporary
interdict, where a clear right to relief is not shown, the Court acts on the balance of
convenience. If, though there is prejudice to the respondent, that prejudice is less than
that of the applicant, the interdict will be granted, subject, if possible, to conditions which
will protect the respondent.’
[12] The requirements of a n interim interdict, as set out in Setlogelo, are trite.
The requirements were summarised as follows in Wypkema NO and Another v
Wypkema NO and Others:7
‘An applicant must establish:
(i) a prima facie right which requires protection in the interim period. As the Constitutional
Court put it, “It is a right to which, if not protected by an interdict, irreparable harm would
ensue. An interdict is meant to prevent future conduct and not decisions already made...
the applicant must demonstrate a prima facie right that is threatened by an impending or
imminent irreparable harm.” (emphasis added)
4 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) (Plascon-Evans)
at 634E–G.
5 Ibid at 635C-D.
6 Webster v Mitchell 1948 (1) SA 1186 (W) (Webster) from the headnote at 1186.
7 Wypkema NO and Another v Wypkema NO and Others [2025] ZAGPJHC 1243 para 94.
7
(ii) a well-grounded apprehension of irreparable harm if the interim relief is not granted
and the ultimate relief is eventually granted
(iii) that the balance of convenience favours the granting of an interim interdict; and
(iv) that the applicant has no other satisfactory remedy.’ (Footnote omitted.)
[13] Not every conflict of fact constitutes a genuine dispute. In Room Hire Co
(Pty) Ltd v Jeppe Street Mansions (Pty) Ltd,8 it was stated that a real dispute of
fact will arise in one of three ways. The three ways a real dispute of fact will arise
were summarised as follows in SA Football Association v Mangope:9
‘Firstly, the respondent may deny one or more of the material allegations made by the
applicant and produce evidence to the contrary, or may apply for the leading of oral
witnesses who are not presently available or who though averse to making an affidavit,
would give evidence if subpoenaed. Secondly, the respondent may admit the applicant's
affidavit evidence but allege other facts which the applicant disputes. Thirdly, the
respondent, while conceding that he has no knowledge of one or more material facts
stated by the applicant, may deny them and put the applicant to the proof, and himself
give or propose to give evidence to show that the applicant and his deponents are
untruthful or their evidence unreliable.’
[14] The grant of an interdict remains a matter for the court's discretion, to be
exercised judicially, having regard to all the facts of the case.10 The harm that is
protectable by an interdict must be irreparable in the sense that it cannot be
reversed.11
[15] Where a party purports to cancel an agreement and that cancellation is
genuinely disputed by the other party, the disputing party is not without a remedy
pending resolution of that dispute. It may seek specific performance, alternatively
interim relief preserving its position under the agreement pending trial. The party
interim relief preserving its position under the agreement pending trial. The party
asserting an entitlement to cancel bears the onus to allege and prove the breach
relied upon and compliance with any contractual cancellation procedure .12 Until
8 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) ( Room Hire) at
1163–1165.
9 SA Football Association v Mangope (2013) 34 ILJ 311 (LAC) (SA Football Association) para 11.
10 EA and Others v AA and Others [2025] ZAWCHC 588 para 24.
11 Tshwane City v Afriforum and Another [2016] ZACC 19; 2016 (6) SA 279 (CC) para 59.
12 Masterspice (Pty) Ltd v Broszeit Investments CC [2006] ZASCA 54; 2006 (6) SA 1 (SCA) paras
21 and 31.
8
that onus is discharged at trial, the party purporting to cancel acts at its own risk,
since if the ground relied upon is not ultimately established, the agreement was
never validly terminated. It is for this reason that a court, exercising an interdictory
jurisdiction, may preserve the contractual status quo pending determination of a
disputed cancellation, so that the party disputing the cancellation is not deprived,
in advance of any adjudication, of the practical benefit of the agreement it disputes
has come to an end. 13 This is no more than an application, in the contractual
context, of the ordinary function of an interlocutory interdict, which is to ‘freeze’ the
parties' position until the court decides where the right lies.14
Analysis: the disputed cancellation and the applicant's entitlement to relief
[16] The respondents' central contention, both in their comprehensive answering
affidavit and in their heads of argument, is that Nambiti is in breach of the
agreement in several material respects . They state that Gangeni validly cancelled
the agreement on 3 September 2025 , following a compliant breach notice on 24
July 2025, and that the validity of that cancellation being genuinely disputed can
only properly be determined by a trial court hearing evidence in the two pending
actions. On that basis , the respondents contend that this application should be
dismissed with costs, alternatively adjourned sine die pending the outcome of the
actions, with costs reserved.
[17] Nambiti's response is that whatever the ultimate merits of the competing
breach allegations, the respondents were not entitled to take the law into their own
hands and deny access before a compliant breach notice had even been sent, still
less before any cancellation had been validly effected or judicially confirmed. It is
common cause that access was denied from 12 June 2025, that a compliant
breach notice was sent only on 24 July 2025, and that purported cancellation
breach notice was sent only on 24 July 2025, and that purported cancellation
followed only on 3 September 2025. On Nambiti's argument, since the entitlement
to cancel remains disputed and unresolved, and since no declarator confirming the
13 Erasmus at D6-4–D6-5; Jordan and Another v Penmill Investments CC and Another 1991 (2) SA
430 (E) (Jordan) at 43 8F; and, applying the same principle to a disputed cancellation of an
agreement, Dovepire Properties (Pty) Ltd v Insurance Sector Education and Training Authority
[2023] ZAGPJHC 316 paras 34 and 43.
14 Jordan at 438F.
9
cancellation has been sought or granted, Gangeni cannot rely on the disputed
cancellation to justify continuing to exclude Nambiti from the property pending trial.
[18] In my view , this argument has real force and is dispositive of the narrow
question of access pending trial, without requiring this court to resolve the merits
of the breach and cancellation dispute itself. The respondents accept, as they
must, that access was denied before any compliant breach notice was given.
Clause 17 of the agreement is unambiguous . It is only once a defaulting party fails
to remedy a breach within 15 days of a compliant demand that the aggrieved party
may, without further notice, cancel and claim damages, or claim specific
performance. Access was already denied by the time the first compliant notice was
sent. Whatever the eventual outcome of the pending actions on the question of
breach, the respondents have not shown, nor could they show on these papers, a
contractual basis for denying access as at the date the rule nisi was sought.
[19] Applying the principles set out in paragraphs 9 and 10 above to prayers 2.1
and 2.2, which the applicant characterises as final relief , the following is clear: the
respondents' version, that the agreement was validly cancelled on 3 September
2025 on account of Nambiti's alleged breaches, following the compliant breach
notice of 24 July 2025, cannot be said to be so far -fetched or clearly untenable
that it falls to be rejected on the papers. It raises a genuine and bona fide dispute
of both fact and law which only the trial court, hearing oral evidence in the two
pending actions, can resolve. Applying Plascon-Evans, it follows that final relief
cannot presently be granted in respect of prayers 2.1 and 2.2, notwithstanding the
label the applicant has attached to that relief in its notice of motion. A court is not
bound by the label a litigant places on relief sought, but must have regard to the
substance, rather than the form, of the relief in question.15
substance, rather than the form, of the relief in question.15
[20] The more difficult question is what is to be done about the period after the
purported cancellation of 3 September 2025. Here the respondents are correct
that the validity of that cancellation is genuinely disputed and is not an issue this
court can or should resolve on these papers. The breach allegations relied upon
by the respondents, the events of 12 June 2025 and the further alleged traversing
15 BHT Water Treatment (Pty) Ltd v Leslie and Another 1993 (1) SA 47 (W) at 55A–F.
10
of the property, the management of alien vegetation and burning, the size and
management of the elephant population, the maintenance of roads, and the
conduct of the anti -poaching unit are all factually contested. These disputes are
supported on each side by documentary and photographic material, technical
management plans, correspondence and denials, that cannot be resolved on
paper, without impermissibly making credibility findings against deponents. These
are, in substance, the very issues now before the trial court in two pending actions
instituted by the parties against each other, each seeking a declarator on
cancellation and, in the first respondent ’s case, damages. I make no finding on,
and it would be inappropriate for me to attempt to resolve, whether the
cancellation was validly effected; that question, like the antecedent breach
allegations on which it depends, must be determined by the trial court on the
pleaded actions.
[21] What can and must be determined at this stage, however, is the narrower
and anterior question ; whether, pending that determination, Gangeni was entitled
unilaterally to give effect to a cancellation whose validity is itself in dispute, by
continuing to deny Nambiti access to the property. For the reasons given in
paragraph 15 above, it was not. A party who purports to cancel an agreement on a
disputed ground does so at its own risk, and cannot rely on that unproven
cancellation to justify withholding contractual performance pending trial.
[22] Equally, however, it would not be appropriate simply to dismiss this
application or discharge the rule nisi, since that would have the practical effect of
endorsing Gangeni's unilateral conduct in excluding Nambiti from the property on
the strength of a cancellation whose validity is squarely in dispute and still to be
tried. Consistent with the principle set out in paragraph 15 above, the appropriate
course is to preserve the contractual status quo access on the terms of the
course is to preserve the contractual status quo access on the terms of the
agreement, pending the final determination of the two pending actions, rather than
to grant open-ended final relief that would foreclose the respondents' right to have
the cancellation dispute properly tried, or to grant no relief at all and thereby permit
Gangeni to obtain, in advance of any adjudication, the practical benefit of a
cancellation it has not yet established.
11
[23] It follows from what is set out above that, although prayers 2.1 and
2.2 were sought as final relief, the relief that can presently be granted in
respect of the applicant's access to the property, including under prayers
2.3 to 2.6, is interim only. I therefore turn to whether the requirements for
interim relief, set out in paragraphs 11 and 12 above, are satisfied in
respect of prayers 2.1 to 2.6:
(a) A prima facie right , though open to some doubt : Nambiti's right of
access is sourced in an extant written agreement. The terms of clause 5 are
not themselves in dispute, only their application to particular, contested
events. Taking the facts set out by Nambiti, together with the facts
advanced by the respondents which Nambiti cannot dispute, and having
regard to the inherent probabilities, Nambiti could, on those facts, obtain
final relief at trial. That is sufficient at this stage; Nambiti need not show
more.
(b) A well -grounded apprehension of irreparable harm : continued
exclusion from the property, for the balance of the two pending actions,
would deprive Nambiti of the practical benefit of the agreement it disputes
has been lawfully terminated, would compromise the anti -poaching, fire
management and habitat management functions the agreement was
designed to secure, and is not a form of prejudice capable of being made
good by an award of damages after the event.
(c) The balance of convenience : the prejudice to Gangeni in permitting
continued access on the terms already applicable under the agreement, for
the duration of the pending actions, is no greater than the ordinary prejudice
inherent in any order preserving contractual performance , pending
determination of a dispute about that contract's continued existence. The
prejudice to Nambiti of continued exclusion, by contrast, extends beyond
commercial loss to the security and conservation functions at stake on the
reserve. The balance favours Nambiti.
reserve. The balance favours Nambiti.
(d) The absence of any other satisfactory remedy : an action for damages
would neither restore Nambiti's access to the property nor protect the anti -
poaching and conservation functions at risk during its exclusion and is
accordingly no substitute for interdictory relief.
12
[24] I am satisfied that each of the four requirements have been met, and that
interim relief should accordingly be granted in respect of prayers 2.1 to 2.6,
pending the final determination of the two pending actions.
The discrete breach allegations
[25] For completeness, I deal briefly with the individual breach allegations relied
upon by the respondents, not to resolve them as that remains for the trial court,
but because they inform the exercise of my discretion.
[26] As to the events of 12 June 2025 , the respondents' complaint is that a
wildlife management operation resulted in game traversing the property while it
was closed to Nambiti's vehicles and aircraft. Nambiti's answer, relying on clause
5 of the agreement, is that access for management purposes is unrestricted at any
time, and that the 12 June operation was a management function rather than
game viewing. This turns on the proper interpretation and application of clause 5
to disputed facts about the nature of the operation and is not capable of resolution
on the papers. Given that genuine dispute, Plascon-Evans precludes the grant of
final relief in reliance on Nambiti's construction of clause 5 in respect of this
incident. Applying Webster, however, the dispute does not deprive Nambiti of the
prima facie right established in paragraph 2 3 above. Nambiti's construction of
clause 5 is not so improbable, on the papers, that it could not succeed at trial, and
the considerations of irreparable harm and balance of convenience set out in
paragraph 23 apply with equal force to this discrete allegation. It follows that, while
final relief cannot be granted in respect of the 12 June operation specifically, that
dispute is no bar to the interim relief already found to be warranted.
[27] As to further traversing, habitat management, alien vegetation, burning, the
elephant population, road maintenance, and the conduct of the anti -poaching unit:
in each instance the respondents advance factual allegations, and Nambiti
in each instance the respondents advance factual allegations, and Nambiti
advances a detailed factual response supported by management plans,
correspondence, and records, disputing both the underlying facts and, in some
respects, the inferences the respondents seek to draw from them (for example, the
appropriate elephant carrying capacity of the reser ve, and the adequacy of the
alien eradication programme). These are not bald or uncreditworthy denials of the
13
kind contemplated in Room Hire . These are substantive, supported factual
disputes properly resolved by oral evidence, and it would be wrong for this court to
attempt to adjudicate them in motion proceedings, still less when the same
disputes are already before a trial court in the two pending actions.
[28] I do not accept, however, the respondents' submission that these disputes
render the present application incapable of any determination. The disputes go to
whether Gangeni was entitled to cancel the agreement, not to whether Gangeni
was entitled, unilaterally and pending resolution of that dispute, to deny Nambiti
access to the property. On the latter, narrower question which is dispositive of the
interim relief granted abov e there is, as set out above, no genuine dispute of fact
of the kind contemplated in Room Hire and SA Football Association.
The relief against the third respondent
[29] Two distinct forms of relief are sought against Mrs Lemmer under prayer
2.7. First, an interdict restraining harassment, intimidation or threats directed at
Nambiti's management staff and guards . S econd, an interdict restraining
defamatory, derogatory or insulting comments or allegations concerning them. I
consider each in turn, applying the requirements for a final interdict set out in
paragraph 9 above, since this relief is sought in final form and does not depend on
resolution of the cancellation dispute.
Harassment and intimidation
[30] Mrs Lemmer's answer, on the papers, is that she engaged with Nambiti's
guards on one occasion, on 30 June 2025, to establish whether they were
patrolling in terms of the agreement, and that this did not amount to intimidation or
harassment. Nambiti's founding affidavit, however, is not confined to that occasion.
It sets out a pattern of conduct by Mrs Lemmer occurring against the backdrop of,
and escalating alongside, the parties' deteriorating relationship over access to the
and escalating alongside, the parties' deteriorating relationship over access to the
property, both before and after the purported cancellation. That fuller account is
not substantially disputed in the respondents' answering papers, which address
only Mrs Lemmer's characterisation of her own conduct on the single occasion she
admits to and are silent on the balance of Nambiti's allegations.
14
[31] An interdict is not a remedy for past invasion of rights; it is concerned with
present or future infringements. 16 Where an infringement complained of appears,
prima facie, to have occurred once and for all, and is finished and done with, the
applicant must allege facts justifying a reasonable apprehension that the harm is
likely to be repeated. Unlike the position in Openshaw, where the respondent gave
an unequivocal statement of his future intentions , which was not put in issue by
the applicant, Mrs Lemmer has given no undertaking, in her answering affidavit or
otherwise, that she will not repeat the conduct complained of. Read against the
unresolved and increasingly acrimonious dispute between the parties over access
to the property, which is common cause will continue for the duration of the two
pending actions, there is an objective basis, going beyond Mrs Lemmer's own
assertions, for a reasonable apprehension that the conduct complained of is likely
to recur. I am satisfied, on the essentially undisputed facts, that Nambiti has
established a clear right not to be harassed or intimidated, an injury actually
committed and reasonably apprehended to continue, and the absence of an
adequate alternative remedy, given the nature of the conduct in question, which is
properly addressed by an interdict rather than an action for damages after the fact.
Defamatory, derogatory or insulting comments
[32] The founding papers further allege that Mrs Lemmer, on more than one
occasion, described Nambiti's guards, in the hearing of Gangeni's own staff and in
communications to at least one neighbouring landowner, as complicit in, or turning
a blind eye to, poaching on the reserve, and accused Nambiti's management of
dishonesty in its dealings with Gangeni. These further allegations are not
addressed at all in the respondents' answering affidavit, which is confined to the
30 June 2025 incident.
[33] The test for whether a statement is defamatory is an objective one ,17 thus
[33] The test for whether a statement is defamatory is an objective one ,17 thus
whether a reasonable person, having regard to the context in which the words
were used, would understand them to convey a meaning that undermines the
reputation of the person concerned. To accuse persons responsible for the
16 National Council of Societies for the Prevention of Cruelty to Animals v Openshaw [2008] ZASCA
78; 2008 (5) SA 339 (SCA) (Openshaw) para 20.
17 Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as
Amici Curiae) [2011] ZACC 4; 2011 (3) SA 274 (CC) para 89.
15
reserve's anti-poaching security of complicity in, or turning a blind eye to, the very
conduct they are employed to prevent, and to accuse Nambiti's management of
dishonesty, are, objectively assessed, defamatory of them. Once publication of a
defamatory statement is established and it is not disputed that these statements
were communicated to persons other than Nambiti, wrongfulness and intention are
presumed, and the onus shifts to the respondent to rebut that presumption by
establishing a recognised defence. 18 Mrs Lemmer has advanced no defence to
these allegations, still less discharged that onus.
[34] For the reasons given in paragraph 31 above, I am satisfied that this is not
a once-off matter finished and done with, but conduct that has continued against
the backdrop of the parties' unresolved and deteriorating relationship, in respect of
which Nambiti has established a clear right to protection of its management and
guards' reputations, an injury actually committed and reasonably apprehended to
continue, and the absence of any other satisfactory remedy. Consistent with the
caution courts exercise before restraining future publication in broad or general
terms, I have confined the relief in the order below to the specific imputations
established on the papers, rather than granting an interdict against defamatory
statements in general terms.
Urgency
[35] The issue of urgency is moot, the rule nisi having been granted by consent
on 8 July 2025. It only has bearing on the issue of costs. On the papers I am
satisfied that urgency was properly invoked . It is not disputed that anti -poaching
activities were required on the property, that the fire season had commenced, and
fire management access was required, and that the ordinary motion roll would not
have afforded substantial redress in time. The urgent approach to court was
justified.
Costs
18 Ibid para 85.
16
[36] In Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and
Others19 it was held that:
‘The Supreme Court has, over the years, developed a flexible approach to costs which
proceeds from two basic principles, the first being that the award of costs, unless
expressly otherwise enacted, is in the discretion of the presiding judicial officer, and the
second that the successful party should, as a general rule, have his or her costs.’
(Footnotes omitted.)
[37] Nambiti has succeeded in preserving its contractual access pending trial,
and in obtaining final relief against the third respondent, but has not succeeded in
obtaining the final, unqualified relief originally sought . The ultimate question of
breach and cancellation remains for the trial court. In these circumstances and
given that the outcome reflects a measure of success for each side in that the
respondents have correctly identified that a final determination of the cancellation
dispute is not appropriate in these proceedings, I consider it just that Nambiti, as
the substantially successful party in resisting Gangeni’s self-help denial of access,
should have its costs of the application up to and including 8 July 2025 . The costs,
thereafter, including the costs of the opposed hearing, should be costs in the
pending actions, to be determined by the trial court together with the merits of the
cancellation dispute to which they are inextricably linked.
Order
[38] In the result, I make the following order:
1. The rule nisi issued on 8 July 2025 is confirmed, on an interim basis, in the
terms of paragraphs 2.1, 2.2, 2.3, 2.4, 2.5 and 2.6 of the notice of motion, pending
the final determination of the actions instituted by the applicant under case number
2026-057854 and by the first respondent under case number 2026 -078895, or
until varied or discharged by a court of competent jurisdiction, whichever occurs
first.
2. The third respondent is finally interdicted and restrained from:
first.
2. The third respondent is finally interdicted and restrained from:
2.1 harassing, intimidating or threatening the applicant's management staff and
guards; and
19 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others [1996] ZACC
27; 1996 (2) SA 621 (CC) para 3.
17
2.2 publishing or uttering, whether orally, in writing or on any social media
platform, any statement imputing that the applicant's management staff or
guards are complicit in, or turn a blind eye to, poaching or other unlawful
activity on the reserve, or that the applicant's management is dishonest in
its dealings with the first respondent.
3. The respondents shall pay the applicant's costs of the application up to and
including 8 July 2025.
4. The costs of the application from 9 July 2025 to date, including the costs of
the opposed hearing, shall be costs in the action in case number 2026 -057854
and case number 2026 -078895, to be determined by the trial court seized with
those actions.
_________________________
MARION AJ
18
Date of hearing: 12 June 2026
Date of judgment: 4 September 2026
Counsel for the applicant: N S Beket
Instructed by: Clarke Smith Attorneys Inc.
16 Westville Centre
Ref: ZAR 1/0035
C/O Viv Greene Attorneys Inc
132 Roberts Road
Clarendon
Ref: V Greene/ks/ MAT5468
Email: kerisha@vglaw.co.za
Counsel for the respondents: W J Pietersen
Instructed by: Grant and Swanepoel Attorneys
Suite1, The Mews
Redlands Estate
Ref: M Swanepoel/rufaida/02LOO1225
Email: michael@sgalaw.co.za
rufaida@sgalaw.co.za