IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
Case No: 2026-02/336
In the matter between:
SANELISIWE MZIBA Applicant
and
CAPITEC BANK Respondent
JUDGMENT
MOLONY AJ:
Introduction
[1] The applicant has launched this application, on an urgent basis, requesting a
rule nisi (which, somewhat confusingly, is returnable on 5 February 2026), in
order for the respondent to show cause as to why the following order should
not be made final:
(a) That the respondent be declared to be in contempt of three (3) orders of
the Ngcobo Magistrates’ Court, dated 18 December 2025, 14 January
2026 and 26 January 2026.
(b) That the respondent be directed to immediately unfreeze all accounts
belonging to Miss Nokuzola Mziba (‘Ms Mziba’) and to transfer the total
available balance to the first applicant’s1 Capitec Bank account.
(c) That the respondent be ordered to pay the costs of the application, on
scale C.
[2] It was requested that prayer (b) above operate as an interim interdict with
immediate effect pending the return date of the rule nisi.
[3] Pursuant to a directive obtained on 2 February 2026, the applicant served the
application papers on the respondent on 2 February 2026, with the matter
being heard on 5 February 2026. The respondent did not, in the very short
time afforded, oppose the application.
Background
[4] A reading of the papers reveals that, due to a pre -existing dispute between
the applicant and Ms Mziba (who is the applicant’s mother), the applic ant
sought an anti-dissipation order, which was granted on 18 December 2025 in
the Ngcobo Magistrates’ Court, and which froze Ms Mziba’s account with the
respondent, and ordered that the respondent pay the funds in Ms Mziba’s
account into the bank account of the applicant (the applicant’s bank account
also being with the respondent).
[5] On 14 January 2026 the applicant and Ms Mziba settled the issues between
them and signed a settlement agreement. The settlement agreement
reflected the following:
1 Ms Mziba was intended to be the second applicant, however this did not occur.
(a) The applicant and Ms Mziba agreed that the applicant would launch an ex
parte application in the Ngcobo Magistrate’s Court (with both parties
consenting to the jurisdiction of the Ngcobo Magistrates’ Court and
agreeing that the matter should be resolved in the Ngcobo Magistrates’
Court) which would set aside the order freezing Ms Mziba’s bank account,
with it being agreed that Ms Mziba 2 would then immediately transfer the
money available in her account to the applicant’s account.
[6] Pursuant to the above -mentioned agreement the applicant obtained another
order from the Ngcobo Magistrate’s Court (on 14 January 2026) which
ordered the respondent to unfreeze Ms Mziba’s account and uplift all
restrictions with immediate effect. The respondent was also ordered to
‘facilitate and assist’ Ms Mziba ‘to immediately transfer the full amount
available in her Bank Account’ into the applicant’s bank account.
[7] According to the founding affidavit Ms Mziba declined to become involved in
this matter as a second applicant (or as a respondent), inter alia due to the
existence of the settlement agreement. She has also not provided a
confirmatory affidavit, nor has she been cited as a respondent in this
application, and the application has not been served upon her.
[8] On 15 January 2026 a letter was sent by the applicant’s attorneys of record to
the respondent’s legal compliance department, demanding compliance with
the order of 14 January 2026 and threatening to approach this court should
the respondent not comply. In response t he respondent, in essence, cited
internal administrative requirements which had to occur prior to the account
being unfrozen.
[9] A few days later the respondent paid an amount of R 400.00 into the
applicant’s account, apparently, according to the applicant, remaining silent in
regard to ‘the substantial funds held in the subordinate accounts’ . No further
2 The parties agreed that the respondent would attend to this, the respondent in the settlement
agreement being Ms Mziba.
information was provided in regard to the number of accounts involved, any
details relating to these accounts, nor the total funds held in these accounts.
[10] The applicant thereafter followed up with the respondent and was informed,
via email on 19 January 2026, that the unfreezing would only apply to the
account number specified in the court order. There is no account number
specified in regard to any of Ms Mziba’s accounts in the court order (with only
the applicant’s account number being provided), however the order refers to
Ms Mziba’s account (singular). The respondent was of the view that if funds
needed to be transferred from any additional accounts, a n amended court
order would need to be provided.
[11] The applicant obtained an amended order on 26 January 2026, which ordered
the respondent to unfreeze Ms Mziba’s ‘main Banking Account and all
Accounts that are under her name and uplift all restrictions o n all those
accounts with immediate effect’ , and to facilitate and assist Ms Mziba to
immediately transfer the funds in those accounts to the applicant.
[12] On 30 January 2026 the respondent conveyed to the applicant that the value
of the matter exceeded the jurisdiction of the Magistrates’ Court, and
requested that the applicant obtain a High Court order to this effect.
[13] The applicant views the respondent’s stance as mala fide , and a delaying
tactic, averring that the respondent unfreezing Ms Mziba’s ‘main account’, and
not the ‘subordinate accounts’ constitutes contempt of court. The relationship
between the ‘main account’ and the unknown number of ‘subordinate
accounts’ (containing an unknown amount of funds), is not explained in the
application.
[14] It is also unclear why Ms Mziba herself, being the holder of the relevant
accounts, could not directly instruct the respondent to make the necessary
transfers as the order of 14 January 2026 applied, according to the
respondent, only to the ‘main account’ (whic h apparently contained only R
respondent, only to the ‘main account’ (whic h apparently contained only R
400.00).
Urgency
[15] The applicant averred that the funds are necessary to support her minor
children financially (including paying their school fees as they attend a private
school), as well as to provide medical care to Ms Mziba3 who suffers from
‘chronic ailments’.
[16] No further information was provided in regard to the number of minor children
involved, their ages, the nature of Ms Mziba’s chronic ailments, or the
financial position of the applicant.
[17] It was also submitted during the hearing of this matter that contempt
proceedings always contain an element of urgency.4
[18] Applicants in urgent applications must give proper consideration to the degree
of urgency in a matter, and tailor the notice of motion accordingly.5
3 Who is incorrectly referred to as th e second applicant in para 31 of the founding affidavit at p. 9 of
the papers.
4 See Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption
and Fraud in the Public Sector including Organs of State v Zuma and Others 2021 (5) SA 327 (CC) at
paras 31 – 36.
5Practice rule 12 of the Eastern Cape Joint Rules of Practice states as follows:
‘(a) In all applications brought other than in the ordinary course in terms of the Rules of Court, the
legal practitioner who appears for the applicant must sign a certificate of urgency which is to
be filed of record before the papers are placed before the Judge and in which the reasons for
urgency are fully set out.
(b) The certificate of urgency shall set ou t the grounds for urgency with sufficient particularity for
the question of urgency to be determined solely therefrom without perusing the application
papers.
(c) In matters contemplated in Rule 12 (a) above, the registrar shall issue the papers and shall
place the matter on the roll of cases as may be provided for in the notice of motion
commencing the application.
(d) In all urgent applications in which it is sought to enrol the matter other than on a day normally
reserved for the hearing of motion court matters:
(i) The practitioner who appears for the applicant must sign a certificate of urgency
which is to be filed of record before the application papers are placed before the
Judge and in which the reasons for urgency are fully set out. In this regard , sufficient
particularity is to be set out in the certificate for the question of urgency to be
determined solely therefrom and without perusing the application papers.
[19] An apposite and often cited judgment in this division is that of Caledon Street
Restaurants CC v D'Aviera 6,in which the following is stated in regard to the
proper approach to urgent applications:
‘Subject to the provisions of Rule 6(12) of the Uniform Rules of Court, the provisions of
Rule 6(5) are peremptory. Rule 6(5)(a) provides that an application must be in a form as
near as may be in accordance with Form 2(a). In terms of Rule 6(5)(b) an applicant is
obliged to nominate a day, at least five days a fter service on the respondent, on or before
which the respondent must notify the applicant of intended opposition. Rule 6(5)(d)(ii)
provides that within 15 days of such notification, the respondent, who is opposing, must
file opposing affidavits. Sub -rule (5)(f) provides for the application thereafter to the
registrar for a date for the hearing of the matter, the date on which the registrar may be so
approached depending on whether or not replying papers are filed by the applicant, which
is also to be done within a prescribed time period.
Rule 6(12) provides, however, that in the case of an urgent application the matter may be
disposed of by way of extraordinary adjudication.
.....
In the assessment of the validity of a respondent's objection to the proce dure adopted by
the applicant the following principles are applicable. It is incumbent on the applicant to
persuade the court that the non -compliance with the rules and the extent thereof were
justified on the grounds of urgency. The intent of the rules is that a modification thereof by
the applicant is permissible only in the respects and to the extent that is necessary in the
circumstances. The applicant will have to demonstrate sufficient real loss or damage
were he to be compelled to rely solely or substantially on the normal procedure.
The court is enjoined by rule 6(12) to dispose of an urgent matter by procedures "which
shall as far as practicable be in terms of these rules". That obligation must of necessity be
shall as far as practicable be in terms of these rules". That obligation must of necessity be
discharged by way of the exercise of a judicial discretion as to the attitude of the court
(ii) The certificate of urgency will be placed before the Judge who will make a
determination solely from that certificate as to whether or not the matter is sufficiently
urgent to be heard at any time other than the normal motion court hours.
(iii) Should he/she determine that it is sufficiently urgent, he/she will then give
directions as to the time and place, when and where the application is to be
heard.
(iv) Should he/she decide that the matter is not sufficiently urgent to be heard on
a day other than a normal motion court day he/she shall record same on the
file whereupon the applicant may deal with the application in accordance with
Rule 12(a) if so advised.’
6 1998 JDR 0116 (SE) at pp. 6 – 11 and p. 21. See further Luna Meubel Vervaardigers (Edms) Bpk v
Makin and Another (t/a Makin's Furniture Manufacturers) 1977 (4) SA 135 (W) at 137.
concerning which deviations it will tolerate in a specific case. Practitioners must
accordingly again be reminded that the phrase " which shall as far as practicable be in
terms of these rules" must not be treated as pro non scripto.
....
The degree of relaxation of the rules should not be greater than the exigencies of the
case demand (and it need hardly be added these exigencies must appear from the
papers).
....
However, the attractiveness of finally disposing of the litigation should not be allowed to
govern. The approach should rather be that there are times where, by way of non -suiting
an applicant, the point must clearly be made that the rules should be obeyed and that the
interest of the other party and his lawyers should be accorded proper respect, and the
matter must be looked at to consider whether the case is such a time or not.’
Analysis
[20] The lack of opposition on the part of the respondent does not automatically
entitle the applicant to the relief sought – the applicant is still required to make
out an appropriate case in this regard.
[21] The lack of required information provided, inter alia, in regard certain material
aspects can be summarised as follows:
(a) No informati on was provided in regard to the total funds involved, which
should have been information within the knowledge of Ms Mziba.
(b) No information was included regarding the details and number of Ms
Mziba’s bank accounts.
(c) No form of confirmation, or lack of oppo sition (which would have required
service of the application) was provided on the part of Ms Mziba in regard
to this application.
(d) No detail was included in regard to the minor children and their financial
needs.
(e) No detail was provided in regard to Ms M ziba’s chronic ailments, her
medical needs, and why she could not utilise the funds in her own
accounts for this purpose.
(f) It was not explained why Ms Mziba could not simply pay the funds to the
applicant herself, as the bank accounts involved were her own.
(g) No information in regard to the applicant’s financial position (income,
expenditure, assets and liabilities), which required the alleged urgent
intervention of this court, was provided.
(h) No information was forthcoming in regard to the original dispute between
the applicant and Ms Mziba.
[22] Given the above -mentioned deficiencies, the applicant has not disclosed
sufficient grounds to make out an appropriate case for the relief sought,
particularly in regard to the issue of urgency.
[23] The applicant does however, prima facie , appear to face a predicament of
sorts, and would be potentially hamstrung going forward were the application
to be dismissed, as the applicant may yet obtain appropriate relief if the
papers are adequately supplemen ted and the matter re -enrolled at a later
date.
[24] For the above reason, the application will simply be struck from the roll, with
costs.
Order
In the result the following is ordered:
The application is struck from the roll, with costs
____________________
MOLONY AJ
APPEARANCES:
For the applicants: Adv Talapile
Instructed by: P Mbeshu Talapile Inc.
MTHATHA
For the respondent: No appearance
Heard on: 5 February 2026
Judgment delivered on: 6 February 2026