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[1]          The main issue in this appeal is whether the court a quo correctly dismissed an application by the appellant, Modikwa Platinum Mine (Modikwa), an unincorporated joint venture between Rustenburg Platinum Mines (Pty) Limited (RPM) and Arm Mining Consortium Limited (ARM MC)[1], against the first respondent, Nkwe Platinum Limited (Nkwe).

[2]          On 4 June 2021, Modikwa launched an urgent application in the Limpopo Division of the High Court, Polokwane against Nkwe, and the second respondent, Genorah Resources (Pty) Limited (Genorah), in which the following relief was sought: 

‘1         . . .

2          that a Mandament van Spolie is granted ordering the First and Second Respondents to restore possession to the Applicant of the spoliated area, spoliated by the First and Second Respondents from the Applicant, on the Farm Maandagshoek 254 KT, as defined on the plan marked “LM 3” annexed hereto, and the Applicant’s rights in respect of the spoliated area, to the Applicant, free of any restriction or constraint, alternatively;

3          ejecting the First and Second Respondents and anyone occupying Maandagshoek through or under them, from Maandagshoek 254 KT and ordering them to remove all property which they may have, or have control over, on the Farm Maandagshoek 254 KT including, without limiting the generality of the aforegoing, fencing, vehicles, plant and temporary structures;

4          further, alternatively to prayers 2 and 3 above, an order directing First and Second Respondents and/or their employees, agents and/or subcontractors to vacate Maandagshoek 254 KT and take down and remove from the Farm Maandagshoek 254 K[T] any property, including, without limiting the generality of the aforegoing, any fencing, plant, equipment, structures and vehicles belonging to them, or any contractor under their control from the Farm Maandagshoek 254 KT; and

5          that the First and Second Respondent[s] to pay the costs of this application, jointly and severally, the one paying the other to be absolved, including the costs of two counsel.’

The application was dismissed by Makgoba JP, who subsequently granted leave to Modikwa to appeal to this Court.