IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 2025 -050045
In the matter between
THE BODY CORPORATE OF MOOIVERWACHT APPLICANT
SCHEME NO. SS61/1988
AND
IRVIN JOHNSON SWART RESPONDENT
Heard: 27 June 2025
Delivered: 02 July 2025
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JUDGMENT
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THULARE J
ORDER:
(a) The rule nisi issued on 9 April 2025 and lapsed on 11 June 2025 is revived and
extended to the date to be arranged in accordance with clause (b) of this order .
(b) Within 5 court days of this order, the parties shall arrange a date suitable to both in
consultation with the Registrar responsible for the semi -urgent roll as the return date for
the rule nisi.
(c) No cost order is made.
[1] This is an opposed urgent application for the revival of a rule nisi which was
discharged on the return date, 11 June 2025 . The rule nisi was issued on an ex parte
basis on 9 April 2025 . It was discharged due to non -enrollment of the matter for hearing.
The applicant prayed that the rule be revived pending enrolment and finalization of the
return date therein on the semi -urgent or opposed roll or as anticipated by the
respondent.
[2] The rule operated as an interim interdict pending the finalization of action
proceedings between the parties, and prohibited the respondent and/or his agents,
employees, contractors and the like, from accessing or making ingress onto the
applicant’s property ; effecting any demolition or building works on or to the border
between the applicant’s property and that of the respondent and that the respondent
and/or his agents, employees, contractors an d the like, were compelled to restore the
boundary wall between the parties’ properties and parts already demolished on 9 April
2025 and to cease with the removal of trees belonging to the applicant.
[3] The parties were engaged in settlement negotiations which failed on 17 June 2025.
When the negotiations failed, the respondent proceeded to prepare foundations and to
build supporting pillars for the intended boundary wall for which the respondent has
approved building plans. The respondent advised the app licants of what he was doing
and was advised that the applicant intended bringing this application and out of respect
for the court process he temporarily held further construction over. There are action
proceedings currently pending between the parties wh erein the applicant claimed
applicant’s encroachment on his property, and the applicant has a counterclaim of
acquisitive prescription in respect of the alleged encroachment. As things stand, the
respondent’s approach is that he is building a boundary wall which can be moved in due
course, on his property, and in terms of approved build ing plans. The respondent
demolished the boundary wall which was the subject of the pending litigation. The
respondent’s reason was that he did so after he was advised by the City of Cape Town
that his building plans were approved , that his actions were not unlawful or mala fide
and that the wall was situated on his property, and that the wall was erected by the
applicant unlawfully and without any building plans.
[4] Rule 27(4) of the Uniform Rules of Court provides as follows:
“27 Extension of time and removal of bar and condonation
(4) After a rule nisi has been discharged by default of appearance by the
applicant, the court or a judge may revive the rule and direct that the rule so
revived need not be served again.”
A rule nisi is an unusual indulgence to the applicant . It permits a court, at the
instance of unchallenged and untested averments of an applicant , the exception
to condemn a respondent in their absence and without being heard . It is an
indulgence that pierces at the heart of the sacred principle of a court hearing the
other side before deciding on an issue. The rule allows the court to run against
the general grain of fairness in the judicial process . Amon gst others, it is for this
reason that the rule should be strictly temporary and for a fixed limited duration
(National Director of Public Prosecutions v Walsh and Others 2009 (1) SACR 603
(T); Does the life of a rule nisi automatically extend on postponement of return
date? Sinazo Ntshangase, De Rebus, May 1st, 2019 , DR 10). It i s solely the duty
of the applicant , on the return day, to bring to the attention of the court the
existence of the rule to enable the court to make an appropriate order to avoid
the rule lapsing. The applicant omitted to deal with the life of the rule on the
return date .
[5] The hearing of an application for the revival of a lapsed rule is not the right time to
show cause why the rule should not have been made or should not be made final. The
time for such is the return or anticipated date. The revival is limited to whether the rule
should be brought to life again, to become active. Where a respondent, like in the
present case, has already filed o pposing papers, it is natural that they would strive to
have the issues crystallised in the rule itself , adjudicated upon in the revival application.
This confuses issues. The revival is at the discretion of the judge hearing the
application. The reasons f or the default of appearance or failure for enrollment, the
nature of the issues between the parties, the need to maintain the status quo, prejudice
against any of the parties and the interests of justice are some of the factors to consider.
[6] I for on e, frown upon legal practitioners throwing mud at each other or involving
themselves in what I call character assassination of the other in order to look good ,
including on the reasons why a rule lapsed . Whilst there is a need to highlight and even
address dereliction of duty or even sheer incompetence, we should never lose sight of
the fact that legal representatives act on the complex paradox of the duality of
instructions and legal advice. A litigation strategy which seemed simple, cost effective
and ach ievable, like the pursuit of settlement out of court in a pending case, may
suddenly and with the change of heart of the other side, with the benefit of hindsight,
appear complex, costly and beyond reach. In this matter t here is pending litigation
involvin g the extent of the two adjacent properties of the parties, which litigation was
initiated by the respondent in action proceedings. The respondent is aware that the
boundary is contested. The respondent proceeded to act in accordance with his view of
the boundary, and this necessitated the applicant to approach the courts to secure the
rule. It may be so that the issue by the Municipality to the respondent, of approved plans
for the boundary wall may have fortified his views and change of heart on settlemen t,
but it did not resolve the live dispute s between the parties . The two dispute s are still
live. The second dispute is whether the respondent should be stopped from proceeding
with the construction of the wall pending the determination on the boundary . The first
dispute is the correct substa ntive boundary between the parties . It is in the interests of
justice that the two disputes, in the absence of settlement by the parties, be resolved by
the courts . The respondent was well within his rights to have a change of heart during
the settlement negotiations after the return date, but he cannot be heard to complain
when such change brings about consequences in the litigation strategy of his adversary.
Ordinar ily the applicant sought an indulgence from the court and would be liable for the
costs. However, the respondent, in elevating the approved plans to resolution of the
dispute, and his hardened attitude to what should be a simple flow of process, cannot
go unnoticed and without any significance. For these reasons the order was made :
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DM THULARE
JUDGE OF THE HIGH COURT