VLG Accounting CC v Koloni Consulting Enterprise CC
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | MJ Lowe J |
| Judgment Date | 07 September 2021 |
| Court | East London Circuit Local Division |
| Hearing Date | 26 August 2021 |
| Docket Number | 95/2021 |
Lowe J:
INTRODUCTION:
This matter, an application for the re-instatement of a rule nisi, was set down before me on 26 August 2021.
This application was launched on 22 June 2021, notice to oppose being given for Respondents on 28 June 2021, the papers being some 51 pages all in all.
The history of the matter can be shortly stated.
On 2 February 2021 Applicants instituted an urgent anti-dissipation application against Respondents.
A Judge's directive authorised the set down of the matter.
On 2 February 2021 and ex parte Norman AJ issued the following order in the form of a rule nisi as follows:
"IT IS ORDERED THAT:
Condoning that the usual forms and services be abridged and that the application be heard on the basis of urgency
A rule nisi hereby issue calling upon the Respondents to show cause on the 2 March 2021 at 09h30 or soon thereafter as the matter may be heard why an order in the following terms should not be made final:
2021 JDR 2289 p3
Lowe J
2.1
The amount of R9 548 256.40 (Nine million five hundred and forty-eight thousand two hundred and fifty-six rand forty cents) and interest thereon be kept and/or held in the:
2.1.1
First Respondent's banking account number 409 800 3903 which is held at the Vincent Branch of Absa in East London or
2.1.2
First Respondent's banking account number 6230 553 4530 which is held at the Vincent Branch of First National Bank or any other bank account held by First, Second and Third Respondents with ABSA Bank, FNB Bank or Capitec Bank to which it has been transferred pending the outcome of action proceedings which have been instituted by the Applicants against the First, Second and Third Respondents for the recovery of the money owing to Applicants and other ancillary relief.
Paragraphs 2.1 and 2.2 shall operate as an interim relief and mandamus in the Applicant's favour.
Costs of the application shall be determined in the action proceedings instituted by the Applicant under case no. 95/2021 against the First Respondent, on a date within 30 (thirty) days from the date of this order."
Paragraphs 2.1 and 2.2 of the order, that the amount of R9,548,256.40 held in First Respondent's bank accounts, be kept and held therein pending the outcome of an action instituted against First to Third Respondents for the recovery of the money allegedly owing to Applicants, was to operate with immediate effect.
The matter was opposed and answering and replying papers filed.
2021 JDR 2289 p4
Lowe J
The Rule operated until 2 March 2021 and appears to have been extended to 20 May 2021 when the matter was set down for hearing.
On 20 May 2021 the matter came before Mnqandi AJ and an order was made that the matter "is removed from the roll" with no order as to costs [1] .
On 1 June 2021, presumably having been again placed on the roll it was again "struck off the roll" by Rusi AJ.
On 13 July 2021 Tokota J postponed this matter (the reinstatement application) to 26 August 2021, Applicants to file their replying affidavit by 18 July 2021.
The reply was in fact filed on 20 July 2021.
The need for the reinstatement application arose from the proceedings having been removed from the roll on 20 May 2021, no order being made extending the rule nisi on that date. Applicants allege that this was through no fault of theirs but by oversight of their legal representative.
There was a delay in bringing the reinstatement application from 20 May 2021 to its launch on 22 June 2021, just more than a month later.
2021 JDR 2289 p5
Lowe J
As the matter was opposed and by order of Tokota J on 13 July 2021, when it was originally to be heard, was postponed to 26 August 2021 coming before me.
The main application itself, which had been struck off on 1 June 2021, was not set down before me and I was informed that by agreement with the Registrar this was to be heard on 9 September 2021 before the Duty Judge on that day as an opposed motion. This renders the need to give their judgment urgently, in less time than I would have liked.
THE RULE NISI:
A rule nisi is an order calling upon Respondents to show cause, if any, on a fixed date why the rule should not be made final. It may, or may not, have interim effect.
A rule will almost always be granted in an ex parte application as in this matter.
Such interim order is temporary and provisional [2] .
On the return day of the rule Applicant moves for it to be made final.
2021 JDR 2289 p6
Lowe J
The postponement of a rule nisi does not, so it has been held, of itself end the rule but automatically has the effect of excluding the rule according to Crundall Brothers (Pvt) Ltd v Lazarus NO and Another [3] .
However, in my view as a rule nisi is an interim order, and in this matter given ex parte, it is conditional upon confirmation by the Court. It seems to me that a Court has no authority to mero motu extend the life of a lapsed order whether or not a rule [4] .
On the return day of a rule accordingly if a matter is postponed, or as in this case, removed from the roll with no extension of the rule and no date for the matter to be heard in the future, the rule must automatically lapse – discharging Respondents from the duty of compliance [5] .
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