VLG Accounting CC and Another v Koloni Consulting Enterprise CC and Others (95/2021) [2021] ZAECELLC 22 (7 September 2021)

VLG Accounting CC and Another v Koloni Consulting Enterprise CC and Others (95/2021) [2021] ZAECELLC 22 (7 September 2021)

The court held that the rule nisi lapsed automatically when the matter was removed from the roll without extension on 20 May 2021. Although Rule 27(4) provides for revival of a rule discharged by default of appearance, the circumstances here did not strictly fall within its ambit, as the removal was not solely due to non-appearance. Even if revival were possible, the substantial delay and the fact that the bank accounts were unfrozen in the interim meant that revival would cause prejudice to the respondents. The applicants' oversight did not justify revival, and the interests of justice and procedural fairness required dismissal of the application. The court was functus officio and could...

Citation
[2021] ZAECELLC 22
Parties
Applicant: VLG Accounting CC; Applicant: Tunimart (Pty) Ltd; Respondent: Koloni Consulting Enterprise CC; Respondent: Pumeza Gwija; Respondent: Vukile Pokwana; Respondent: ABSA Bank; Respondent: First National Bank; Respondent: Capitec Bank
Court
Eastern Cape High Court, East London Local Court
Jurisdiction
South Africa
Judgment Date
7 September 2021
Case Number
95/2021
Procedural Posture
Urgent Application / Application for Revival of Rule Nisi After Lapse Due to Removal From Roll
Outcome
Application for revival of the rule nisi refused; costs awarded against applicants.
Judges
M.J. Lowe
Legal Topics
Rule Nisi, Revival of Interim Orders, Prejudice to Respondent, Rule 27 4, Anti Dissipation Interdict
Civil Procedure Rule Nisi Revival of Interim Orders Prejudice to Respondent Rule 27 4 Anti Dissipation Interdict

Case Brief

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Parties

VLG Accounting CC

Applicant

Tunimart (Pty) Ltd

Applicant

Koloni Consulting Enterprise CC

Respondent

Pumeza Gwija

Respondent

Vukile Pokwana

Respondent

ABSA Bank

Respondent

First National Bank

Respondent

Capitec Bank

Respondent

Procedural Posture

Urgent Application / Application for Revival of Rule Nisi After Lapse Due to Removal From Roll

Legal Issues

  1. 1 Whether the court may revive a rule nisi that lapsed due to removal from the roll without extension.
  2. 2 Whether Rule 27(4) applies where the lapse was not strictly due to default of appearance by the applicant.
  3. 3 Whether revival of the rule would cause prejudice to the respondents, particularly regarding the use of bank accounts.

Ratio Decidendi

The court held that the rule nisi lapsed automatically when the matter was removed from the roll without extension on 20 May 2021. Although Rule 27(4) provides for revival of a rule discharged by default of appearance, the circumstances here did not strictly fall within its ambit, as the removal was not solely due to non-appearance. Even if revival were possible, the substantial delay and the fact that the bank accounts were unfrozen in the interim meant that revival would cause prejudice to the respondents. The applicants' oversight did not justify revival, and the interests of justice and procedural fairness required dismissal of the application. The court was functus officio and could...

Court Disposition

Application for revival of the rule nisi refused; costs awarded against applicants.

Orders

  • The application for the revival of the rule nisi is refused.
  • Applicants are to pay First to Third Respondents’ costs jointly and severally, the one paying the other to be absolved, including reserved costs in respect of this application.