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[2016] ZAECBHC 3
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Wele v Economic Freedom Fighters and Others (509/15) [2016] ZAECBHC 3 (23 February 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE HIGH
COURT, BHISHO)
CASE NO: 509/15
In the matter between:
THEMBA
WELE
First
Applicant
and
ECONOMIC
FREEDOM FIGHTERS
First
Respondent
EASTERN
CAPE PROVINCIAL
LEGISLATURE
Second
Respondent
SPEAKER
OF THE EASTERN CAPE
PROVINCIAL
LEGISLATURE
Third
Respondent
JUDGMENT
MBENENGE J:
[1]
The applicant was, at all times relevant hereto, a member of the
Economic Freedom Fighters, a
political party cited in these
proceedings as the first respondent (otherwise referred to herein
after as “the EFF”)
and, by virtue of his senior status
in the political party, one of the two representatives of the EFF at
the Eastern Cape Provincial
Legislature, the second respondent (the
Legislature).
[2]
It came to pass, during March 2015, that the applicant was, by letter
dated 3 March 2015, received
by him on 6 March 2015, informed of a
decision that had been taken placing him under temporary suspension
with immediate effect
“
pending
the hearing and finalisation of disciplinary proceedings against
[him].
”
The suspension was said to be premised upon “
complaints
received and involving a number of offences
”.
Some of these offences are adumbrated in the letter itself, but
because nothing, for present purposes, hinges thereon,
nothing more
of the offences will be said. Nor does anything hinge on the
suspension, which was overtaken by the expulsion
of the applicant
from the EFF. By virtue of section 106 (3) of the Constitution
of the Republic of South Africa,
[1]
the process of removing the applicant as the EFF’s
representative in the Legislature was set in motion.
[3]
The expulsion, which is what I hasten to deal with, in turn
culminated in the launch of urgent
proceedings on 05 October 2015,
with the applicant seeking two kinds of relief. In Part A of
his notice of motion, the applicant
sought temporary relief
effectively preventing the respondents from giving effect to the
decision expelling him from the EFF’s
membership and
participation at the legislature, pending the final determination of
the relief sought in Part B. In Part
B, the applicant is
seeking the review and setting aside of the decision expelling him
from the EFF (the review application).
[4]
On 06 October 2015 the applicant obtained the order he sought under
Part A incorporating a rule
nisi.
In so far as relevant
hereto, the order reads:
“
1.
That
a
rule
nisi
do hereby issue, calling upon the
respondents to appear on 19 October 2015 at 09h30 to show cause
why, pending the review
proceedings, the following order should not
be made:
1.1
That the first respondent is hereby
interdicted and restrained, either through an agent or employee, from
terminating the membership
of the applicant to both the first and
second respondent;
1.2
That the second and third respondents are
hereby interdicted and restrained, either through an agent or
employee, from terminating
membership of the applicant to the second
respondent;
1.3. The first
respondent is hereby;
(a)
order to restore the applicant’s membership to it and permit
the
applicant to take his seat in the Eastern Cape Provincial
Legislature,
(b)
interdicted from causing and member of the first respondent from
being
sworn in as a member of the second respondent in substitution
of the applicant, and;
(c)
interdicted from dressing correspondence, written communications or
making
statements to the second respondent in substitution of the
applicant, and
2.
That the contents of paragraphs 1.1 to 1.3 above shall operate as an
interim interdict forthwith.”
[2]
[5]
Because the application had been brought
ex parte
, the
respondents were also granted leave to anticipate the return day of
the rule
nisi
on 24 hours’ notice to the applicant.
The return day was, however, not anticipated. It is not clear
from the
papers whether the terms of the interim order were given
effect to, or not.
[6]
The review application is still pending.
[7]
The mainstay of the applicant’s claim is that the decision
expelling him from the membership
of the first respondent was arrived
at without him having been afforded the opportunity of stating his
side of the story.
More particularly, and whilst acknowledging
that he did receive notification of the pending disciplinary
proceedings against
him, the applicant contends that he never
received notification of the place, date and time of the ultimate
hearing at which the
decision finding him guilty of misconduct and
expelling him from the EFF was arrived at.
[8]
At another level, the applicant contends that the expulsion has had
the effect of preventing him
from fulfilling his duties as a member
of the second respondent, from executing the mandate of his
constituency, and from receiving
the concomitant benefits (including
remuneration) associated with being a member of the Legislature.
[9]
The second and third respondents have elected to abide the decision
of the Court. Only the
first respondent is resisting the grant
of the interim relief being sought. The first respondent
(hereinafter also referred
to as the respondent) contends that the
applicant did receive notification of the relevant hearing, but
spurned the opportunity
to state his side of the story by absenting
himself from such hearing; the fact that the applicant will lose his
position in the
legislature is a consequence of his lost membership
of the EFF, which does not, in and by itself, give rise to
irreparable harm;
in the event of the applicant being successful in
the review proceedings, he will be reinstated to his position and
recover any
past financial losses incurred; the balance of
convenience favours not the applicant.
[10]
In his replying affidavit the applicant sought to challenge the
authority of Gordich Gardee (the Secretary-
General of the EFF),
contending that, being an artificial person that can only act through
its members and absent proof of authority
on the part of Mr Gardee to
depose the opposing affidavit for and on behalf of the EFF, the first
respondent was not “
properly
”
opposing the proceedings. On the authority of
Eskom
v Soweto City Council,
[3]
I
found the contention unnecessary and wasteful.
[4]
Little wonder that Mr Sishuba, who appeared the first respondent,
when the matter was being heard was quick to abandon this
ill-conceived point.
[11]
The facts established in the papers upon which a pronouncement will
be made may briefly be summarised as
follows:
(a)
On 13 March 2015 the National Prosecutor of the EFF (the National
Prosecutor) brought charges
[5]
against the applicant. According to the relevant charge sheet
the misconduct hearing would proceed in the applicant’s
absence, were he not to attend the hearing. This correspondence was
served on the applicant by the Sheriff.
(b)
The disciplinary hearing was initially set down for 25 March 2015.
Notice to that effect
was also served on the applicant by the
Sheriff. Day before the hearing (24 March 2015), the applicant
submitted a medical
certificate penned by Dr Jubase and pointing to
the applicant as suffering from lower abdominal pain and being “
unfit
for work … from 24/03 up to and including 28/03
”.
Resulting from this state of affairs, the hearing did not take
place.
(c)
A letter was thereupon written informing the applicant that “
[his]
medical certificate [had] been noted
”
and that it had been “
decided
to postpone the disciplinary hearing against [himself] to the 08
th
day April 2015 @ 11h00 at the same address communicated to [him]
.”
The letter was transmitted to the applicant
via
email to “
th[...]@gmail.com
”.
(d)
08 April 2015 was subsequently changed at the instance of the
National Disciplinary Committee
and a fresh date, 20 July 2015,
arranged. Another medical certificate signed by Dr Sokupa dated
16 July 2015 and recording
that the applicant would be “
fit
for duty
” on 1 August 2015 was submitted. For that
reason, the matter did not proceed on 20 July 2015.
(e)
Meanwhile, on 16 July 2015, the National Prosecutor had transmitted
another letter to the applicant,
once again
via
“
th[...]@gmial.com
,” acknowledging receipt of
the applicant’s medical certificate on 16 July 2015 and
notifying the applicant that the
hearing was scheduled for 17 August
2015 at 11:00 am, at the same venue.
(f)
On 31 July 2015 another medical certificate, also penned by Dr Sokupa
and stating that the
applicant was unfit for work between 31 July
2015 and 15 September 2015, was submitted.
(g)
The EFF eventually convened the hearing for 21 September 2015.
The relevant notification
letter also transmitted to the applicant
via
email to “
th[...]@gmail.com
”, in part,
reads:
“
2.
The NDC has taken a decision to grant you a final opportunity to
appear
before it on Monday 21 September 2015 at 14h00 at the EFF
headquarters in Braamfontein, as previously indicated. Should
you
once again fail to appear, for any reason it will be assumed that
you have no intention to do so and the prosecution will make an
application for the hearing to proceed in your absence.
3.
Should the application be granted, you are in jeopardy of a
finding
being made without your version serving before the NDC and/or, if
applicable, without taking opportunity to present evidence
in
mitigation of sentence, if any
4.
This letter is sent to you as a matter of courtesy and fairness
in
order for you to appreciate the anticipated course of action.
5.
Please indicate as soon as possible, but by no later than 14
September 2015, whether or not you will attend the hearing, together
with the name, details and membership number of your representative,
if any.
6.
We await your urgent response.”
(i)
A follow up letter emphasising that the enquiry would proceed on 21
September 2014 as previously
communicated was transmitted by the
National Prosecutor to “
th[...]@gmail.com”
on 18
September 2015.
(j)
The disciplinary hearing was eventually convened on 21 September
2015. The applicant did
not attend. It is common cause
that in the morning of the same day another medical certificate
booking the applicant off
duty from 17 September 2015 to 17 October
2015 was submitted. Having been of the view that the absence
was deliberate and
merely a stratagem designed to evade the hearing,
the National prosecutor successfully applied that the hearing proceed
in the
applicant’s absence. The application was granted.
(k)
Witnesses who testified in support of the misconduct charges were
called. In the final analysis
the applicant was found guilty of
misconduct. Deliberations on mitigating and aggravating
circumstances followed. A
sanction of expulsion from the EFF
was imposed.
(l)
By letter dated 28 September 2015, the third respondent informed the
applicant of his expulsion
from the EFF. Attached to the letter
was the following correspondence:
·
letter dated 27 September 2015 penned by
Secretary of the EFF and addressed to the third respondent informing
the Speaker’s
Office that, by reason of his expulsion pursuant
to the outcome of a disciplinary hearing, the applicant was no longer
a member
of the EFF, as also that the outcome of “
a
party disciplinary hearing
” and
letter had been sent to the applicant;
·
letter ostensibly sent to the applicant
with address given as “
C 5[...]
O[...] G[...], Greenfields East London
”
and informing the applicant of his expulsion from the EFF pursuant to
the disciplinary hearing of 21 September 2015; and
·
the ruling of the National Disciplinary
Committee (the NDC) finding the applicant guilty of misconduct and
imposing a sanction expelling
the applicant from the EFF, dated 26
September 2015, ostensibly confirmed by the Central Command Team of
the EFF (the CCT) on 27
September 2015.
[12]
Clause 6 of the EFF’s Code of Conduct and Revolutionary
Discipline (the Code) provides
that members facing disciplinary
proceedings shall be entitled to be informed of the date and place
where the disciplinary hearing
is scheduled to take place.
Neither the Code nor the Constitution of the EFF prescribes the mode
of service of disciplinary
proceedings notices and processes.
On no less than two occasions, notices were served on the applicant
by the Sheriff.
On other occasions notices were transmitted to
the applicant
per
email. There are also occasions when
correspondence was addressed to the applicant’s known physical
and official addresses.
None of the correspondence / notices
not served by the Sheriff was sent by registered post.
[13]
A further aspect of the case requiring comment relates to the
postponement of the disciplinary
hearing on dates preceding 21
September 2015. On 25 March 2015 and 20 April 2015, the hearing
was postponed at the instance
of the applicant. Medical
certificates pointing to his unfitness “
for duty
”
were “
submitted
” or “
tendered”
.
No detail is furnished regarding who, on behalf of the applicant,
tendered or submitted the medical certificates or interacted
with the
National Prosecutor on the relevant occasions. The hearing was
postponed at the instance of the NDC of the EFF on
one occasion- 08
April 2015. Even though , at some point, the misconduct had
been set down for hearing on 17 August 2015,
it did not proceed, and
there is no evidence of the hearing having convened at all on that
day, as indeed the applicant had previously
submitted a medical
certificate of his being indisposed from 3 July 2015 to 15 September
2015.
[14]
Against this background, a determination has to be made regarding
whether the applicant is entitled
to the interlocutory interdict he
is seeking, the requirements to be satisfied being the following:
(a)
a
prima facie
right;
(b)
a well-grounded apprehension of irreparable harm if the interim
relief is not granted and the ultimate relief
eventually granted;
(c)
a balance of convenience in favour of the granting of the
interim relief; and
(d)
the absence of any other satisfactory remedy.
[6]
[15]
It is trite law that the right to be set up by an applicant for an
interlocutory interdict need
not be shown by a balance of
probabilities; if it is “
prima
facie established though open to some doubts
”
that is enough. It should further be highlighted that
“
irreparable
harm
”
has been defined as the loss of property in circumstances where its
recovery is impossible or improbable. The court
must weigh the
prejudice to the applicant
[7]
if
the interim interdict is refused against the prejudice to the
respondent if it is granted. It has also been held that
in a
determination of whether the balance of convenience favours the
granting of interim relief, the court has to consider the
prospects
of success in the main action and the balance of convenience.
The stronger the prospects of success, the less need
for the balance
of convenience to favour the applicant. The weaker the
prospects of success, the greater the need for the
balance of
convenience to favour the applicant.
[8]
[16]
The parties do not seem to have locked horns in relation to whether
or not there is other satisfactory
remedy. In any event, the
applicant is on record as having referred the dispute besetting the
parties to the National People’s
Assembly,
[9]
prior to resorting to the instant proceedings, to no avail.
[17]
That leaves this court having to determine three issues namely,
whether on the facts of this
matter –
(a)
the applicant has established a
prima
facie
right;
(b)
it has been shown that there is a well-grounded apprehension of
irreparable harm; and
(c)
balance of convenience favours the granting of the iterim interdict
sought.
[18]
In terms of the EFF’s Constitution the applicant, besides being
entitled to being informed
of the date and place where the
disciplinary hearing is scheduled to take place, has the right to be
adequately warned of the consequences
of his unauthorised failure to
appear on the specified date, that the hearing may proceed without
his participation
[10]
and,
upon being found guilty, to lead evidence in mitigation of
sentence.
[11]
[19]
A question presenting itself from the papers, which must be posed and
answered, is whether the
applicant received notification of the
proceedings of 21 September 2015. The applicant denies that he
received the email
transmitted to “
th[...]@gmail.com”
.
He states that in the course of time this email account fell into
disuse and that the respondent ought to have utilised
his official
email address “
tw[...]@eclg.gov.za
”, which they
are aware of to notify him of the hearing date (21 September 2015).
[20]
The respondent has urged me to draw inferences from the conduct of
the applicant in submitting
a medical certificate on the day of the
hearing. The inference is irresistible, argues the respondent,
that the only basis
for sending that medical certificate was that the
applicant was aware that the matter would proceed on that day.
In my view,
such approach would be overly simplistic. The
matter of whether an email has been received by the addressee in this
information
age ought to be capable of resolution without the drawing
of inferences.
[21]
In
Jafta
v Ezemvelo KZN Wildlife
[12]
it was held, based on the provisions of the Electronic Communications
and Transactions Act
[13]
, that
the critical moment in electronic communication is when the message
enters a system outside the control of the sender.
Although the
ECTA deems a message sent when that happens, it does not create a
presumption; an addressee may deny receipt, but
must then adduce
sufficient evidence to shift the burden of proof to the sender to
demonstrate that the email was in fact received
by the addressee.
[22]
Absent proof that the applicant received the relevant notice
transmitted to “
th[...]@gmail.com
”, I am unable to
find that the applicant was aware that the hearing would proceed on
that day. I am also not in position
to reject, out of hand, the
applicant’s assertion that the email to which the notice was
sent fell into disuse. I believe
that it would have been a
matter of relative ease for the respondent, in seeking to rebut the
applicant’s version of non-receipt
of the email, to engage a
technician to investigate and report on whether the email in question
was received and downloaded.
I venture to take judicial notice
of the fact that sent emails may sometimes not be received by the
intended recipients due, amongst
other things, to the fact that the
inbox of the recipient is full and not able to download further
messages.
[23]
I am accordingly of the view that the applicant has established with
the requisite degree (at
a
prima facie
level) that the
respondent invaded the applicant’s right to be afforded the
opportunity of being heard prior to it being
decided to expel the
applicant from the EFF. Because of the lack of information, as
already pointed out, it is hard for me
to make a pronouncement
regarding the degree of strength of the applicant’s case in the
pending review application.
Quite apart from all else, the
applicant has elected not to foreshadow other review grounds in his
founding papers to assist the
court assess the strength of his case.
[24]
That, however, does not bring the matter to an end. It is
incumbent on the applicant to
also establish the two other requisites
for the grant of the interlocutory interdict he is seeking.
[25]
The applicant claims to be suffering prejudice in that as a bread
winner he is not receiving
the concomitant benefits derived from his
membership of the Legislature. It is not his case that he is
the sole bread winner
and that he lacks other sources of income.
Were he to be reinstated in the final analysis, recovery of lost
income would
not be impossible or improbable. For this reason,
I am unable to find that the balance of convenience favours the grant
of
interim relief.
[26]
Even if I am wrong in finding that the applicant has not established
the requisites for an interlocutory
interdict, the court possesses a
general and overriding discretion whether to grant or refuse an
application for interlocutory
relief.
[14]
[27]
It has been held that failure or undue delay on the part of the
applicant to press on with the
main action after a rule
nisi
has been obtained may lead to dismissal of the rule.
[15]
This matter has a curious feature. The applicant approached
court on an
ex
parte
urgent basis on 5 October 2015, having been informed of the impugned
decision on 30 September 2015. He obtained the rule
nisi
subject to these proceedings on 06 October 2015. The
respondent’s answering affidavit was delivered on 16 October
2015. The replying affidavit was delivered on 4 November 2015.
Thereafter, the applicant rested on his laurels, and
did nothing to
either set down the interlocutory application for hearing or to
pursue the review application. The respondent
took the
initiative to apply for allocation of a hearing date on 20 November
2011. Once 11 February 2016 was allocated by
the Registrar as
hearing date, the respondent proceeded to issue a notice setting the
matter down for hearing on 11 February 2016.
The respondent’s
heads of argument were delivered on 5 February 2016
[16]
and those
of the applicant,
out of time, on 09 February 2016, despite the fact that the heads had
been
drawn by counsel on 3 January 2016. Since obtaining the rule
nisi
,
the applicant has not lifted a finger to press on with the review
application.
[28]
In any event, on the authority of
Fisher
v Fisher
,
[17]
the rule
nisi
granted on 6 October 2015 not having been extended to a particular
date lost its validity and lapsed on 20 October 2015, on which
day
the matter was postponed “
sine
die
”,
without the rule
nisi
having been extended to a particular date, and not subsequently
revived.
[18]
It is a
salutary practice for counsel and attorneys appearing to postpone a
matter wherein there is an order incorporating
a rule
nisi
to bring to the attention of the court the existence of the rule
nisi
to enable the court to extend the rule
nisi
to a specific date – the date to which the matter stands
postponed, otherwise the rule simply lapses in an instance such
as
here, where the parties consented to an order postponing the matter
sine
die
.
[29]
Even though strictly speaking there is in fact no rule
nisi
to
discharge, the application encapsulated in Part A of the notice of
motion has to be brought to its logical conclusion, leaving
the
applicant to consider his position regarding what should become of
the review application (part B). The respondent has
attained
substantial success on this bout. When this court issued the
rule
nisi
, it was also ordered that the costs occasioned by
the interlocutory application stand over for determination in the
review application.
The respondent did not feature at that
stage. The parties adopted a different approach when the matter
was being heard.
They each contended that the costs incurred at
this stage should follow the result. In any event, that is the
proper course
to follow.
[30]
The respondent pressed for a punitive cost order pointing to
mendaciousness on the part of the
applicant. I disagree.
An explanation, which was acceptable to the court which granted the
rule
nisi
, was tendered as to why the proceedings were brought
on an
ex-parte
basis. The respondents were, in any
event, granted leave to anticipate the return day. The first
respondent elected
not to do that, but instead to pursue its
opposition to the confirmation of the rule
nisi
.
Nothing, in the formulation of the replying affidavit, points to
mendaciousness on the part of the applicant. On the
respondent’s own showing, the mainstay of the applicant’s
case has been that the applicant never received the notice
of hearing
for 21 September 2015. I have already upheld that version as
not being fanciful or untenable. No case has
thus been made for
a punitive cost order. Nothing was Fachieved by the parties’
appearance on 20 October 2015, on which
date the rule
nisi
lapsed in the hands of both parties, who were legally represented.
None of the parties is entitled to a cost order for that
day.
[31]
In the result, I grant the following order:
1.
The application for the grant of the interlocutory interdict
encapsulated in Part A of the applicant’s
notice of motion is
dismissed.
2.
The applicant shall pay the costs of the application incurred to
date.
3.
Each party shall pay its own costs for 20 October 2015.
S M MBENENGE
JUDGE OF THE HIGH
COURT
Counsel
for applicant:
Mr
M H Sishuba,
Instructed
by
S
N Jiba Attorneys
East
London
C/O
Potelwa & Co
King
William’s Town
Counsel
for the first respondent:
Mr
T Ngcukaitobi,
Instructed
by
Dandala
Attorneys
King
Williams’ Town
Date heard: 11
February 2016
Date
Delivered: 23 February 2016
[1]
The
section reads:
“
(3)
A person loses membership of a provincial legislature if that
person—
(a)
ceases to be eligible;
(b)
is absent from the legislature without permission in circumstances
for which the rules and orders of the legislature prescribe loss of
membership; or
(c)
ceases to be a member of the party that nominated that person as
a
member of the legislature.”
[2]
Order
granted by Ndzondo AJ on 06 October 2015.
[3]
1992
(2) SA 703.
[4]
In
the
Eskom
matter (
Ibid
),
where an interlocutory application had been delivered under the name
and signature of the respondent’s attorneys, it
was held that,
if the attorney had been authorised to bring the application on the
respondent’s behalf, then the application
was that of
respondent, irrespective of whether the deponent to the supporting
affidavit had also been authorised ‘
to
bring this application close
.’
The court held, further, that the deponents evidence could not be
ignored because he had not been ‘authorised’:
If the
attorney had authority to act on the respondent’s behalf, then
the attorney was entitled to use any witness who,
in his opinion,
would advance the respondent’s case – a witness may
testify even if she has no authority, withdraw
or otherwise deal
with the application itself. (See also
Ganes
v Telecom Namibia Ltd
2004 (3) SA 615 (SCA)).
[5]
In
all, six counts of misconduct were preferred against the applicant
[6]
Setlogelo
v Setlogelo
1914 AD 221
at 2217;see also
National
Treasury v Opposition to Urban Trollip Alliance
2012 (6) SA 223
(CC) at 235 D-E.
[7]
Ndauti
v Kgami
1948 (3) SA 27
(W) at 36-7
;
Edrei Investments Ltd (in liquidation) v Dis-Chem Pharmacis (Pty)
Ltd
2012 (2) SA 553
(ECP) at 557 H-I.
[8]
Camps
Bay Residents and Ratepayers Association v Augoustides
2009 (6) SA 190
(WCC) at 195I – 196 A and
SA
Taxi Securitisation (Pty) Ltd v Chesane
2010 (6) SA 557
(GSJ) at 564D –F.
[9]
Clause
25 of the Code reads:
“
The
decision the CCT to confirm a suspension or expulsion may, on
application by the offender, be placed before the National People’s
Assembly as a subject of final review/appeal
”
[10]
Clause
8 of the EFF’s Constitution.
[11]
Ibid
clause
12.
[12]
[2008]
10 BLLR 954 (LC).
[13]
25
of 2002. (The ECTA.) Section 23(a) and (b) of the ECTA reads:
“
23
A data message-
a)
used in the conclusion or performance of
an agreement must be regarded as having been sent by the originator
when it enters an
information system outside the control of the
originator or, if the originator and addressee are in the same
information system,
when it is capable of being retrieved by the
addressee;
b)
must be regarded as having been received by the addressee when the
complete data message enters an
information system designated or
used for that purpose by the addressee and is capable of being
retrieved and processed by the
addressee
”
.
[14]
Limbada
v Dwaka
1957 (3) SA 60
(N) at 62 B-F;
Compore
Knox D’ Arcy Ltd v Jamieson
[1996] ZASCA 58
;
1996 (4) SA 348
(A) at 360 A-H.
[15]
Sandell
v Jacobs
1970 (4) SA 630
(SWA) at 635 B-E;
Chopra
v Avalon Cinemas SA (Pty) Ltd
1974 (1) SA 469 (D) 472 E.
[16]
In
terms of the Practice Directions of the Eastern Cape Division the
applicant had to file his heads of argument on 04 February
2016.
He only filed them on 09 February 2016.
[17]
1965
(4) SA 644 (W).
[18]
In
the
Fisher
matter it was held that a rule
nisi
is
an order of court to which a fixed period of validity has been
assigned. Once that period of validity has expired the
rule
lapses.