IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 2026/061039
In the matter between:
JONGIKHAYA LUVULWENI Applicant
and
NOLUPHELO XHEGWANA & OTHERS Respondent
REASONS FOR THE ORDER
GRANTED ON 05 MAY 2026
MHAMBI AJ
Introduction
[1] This matter appeared before me during the unopposed motion court on 05
May 2026. On this day, both parties were legally represented. I issued an order
without giving reasons. On 10 May 2026, the applicant’s legal practitioners
sought for the written reasons for the order issued. I now furnish the reasons for
the grant of the order.
[2] Background of this matter is as follows: it was enrolled on an urgent basis
on 24 March 2026, my sister Cengani - Mbokazi AJ, as she then was, issued an
order as follows: -
“1. The applicant’s non -compliance with the rules relating to forms and time
limits is hereby condoned.
1.1 The applicant is hereby granted leave to move this application on an
urgent basis in terms Rule 6(12) of the Uniform Rules of this Court.
2. Rule nisi hereby issue calling upon respondent to show cause if any, on
Tuesday, the 05 May 2026, at 10h00 or so soon thereafter as the matter may
be heard, why an order in the following terms should not be made final.
2.1 The second and third respondents are hereby directed to pay an amount
of R700 000.00 as interim payment in the money withheld by them not
later than 27 March 2026, ending finalization of Case No.: 3852/2002.
2.2 Directing the second and third respondents to pay legal rate of interest
to the applicant commencing from the 25 March 2026. Should it fail to
make payment within the period stated in the preceding paragraph.
2.3 Directing the outstanding aspects of the remaining amounts should
stand over for a later finalization of the pending interdict application
which was bought by the first respondent under Case No.: 3852/2002.
2.4 The applicant further seeks an interdict and restrained the first
respondent from interfering into his money in which she features no
whereas there is no nexus between the applicant and the first
respondent.
3. That paragraph 2.1, 2.2, 2.3 and 2.4 above shall operate as interim orders
pending the finalization of the matter.
4. The second and third respondents ordered and directed to pay costs of this
application.”
[3] The nature of this order was an interim order with a rule nisi.
Rule Nisi: -
[4] A rule nisi is generally issued on an ex parte application in which an
application sets out fully the circumstances of the cause of complaint. It is an
order which is issued by a court at the instance of a party calling upon another
party to show cause on a stipulated date before that court why the relief claimed
should not be granted. The rule nisi procedure is premised on the acceptance
that the interest of justice requires the balancing of the rights of the applicant
and the respondent. This ensure s that what is worthy of immediate protection is
not prejudiced by the time it takes to hear the interested parties. The essential
character and purpose of the rule nisi procedure remains to ensure (a) that notice
is given to an affected party, (b) that a prima facie case is made out for the relief
sought, and (c) such relief may be granted unless cause is shown why it should
not be granted.
[5] In National Director of Public Prosecutions v Mohamed NO and Others 1
held as follows in respect of a rule nisi-
‘[28] Our common law has recognized both the great importance of the audi rule as
well as the need for flexibility, in circumstances where a rigid application of the rule
would defeat the very rights sought to be enforced or protected. In such
circumstances, the court issues a rule nisi calling on the interested parties to appear in
court on a certain fixed date to advance reasons why the rule nisi should not be made
final, and at the same time orders that the rule nisi should act immediately as a
temporary order, pending the return day. This practice has been recognized by the
South African courts for over a century:
The term ‘rule nisi’ is derived from English Law and practice, and the rule may be
defined as an order by a court issued at the instance of the applicant and calling upon
another party to show cause before the court on a particular day why the relief applied
for should not be granted. Our common law knew the temporary interdict and, as Van
Zyl points out, a ‘curious mixture of our practice with the practice of England’ took
place and the practice arose of asking the court for a rule returnable on a certain day,
but in the meantime to operate as a temporary interdict.’
1 2003 (4) SA 1 (CC)
[6] The SCA in Member of the Executive Council for the Department of
Health v BM2, the rule nisi procedure is explained thus:-
“[12] A rule nisi is an order issued by a court, at the instance of a party, calling upon
another party or parties to show cause on a stipulated date before that court why relief,
as claimed, should not be granted. The procedure, which derives from English law,
has been employed by our courts for well over a century. [3] Its use and development
is underpinned by the principle that a court will not grant relief which impacts or
constrains the rights and interests of a party without affording that party an
opportunity to be heard ( audi alteram partem ). It is also premised on the acceptance
that the interests of justice require the balancing of rights and interests to ensure that
what is worthy of immediate protection is not prejudiced by the time it takes to hear
all interested parties.
[13] The rule nisi is generally used in ex parte applications. Van Zyl explains that,
‘This rule, or order, for after all it is really an order, is granted only on an ex
parte application. This application should be by petition setting forth fully all
of the circumstances of the applicant’s cause of complaint, so as to induce the
Court to grant his prayer. He must [show] a good prima facie cause to entitle
him to this rule, and a good reason must be assigned, or [shown] for the
urgency of the application, and why it should be ex parte instead of serving
the respondent with the notice of motion.’
2 MEC for Department of Health, Eastern Cape v BM (213/2021) [2022] ZASCA 140 (24 October 2022) para
[12] to [15].
[14] Since those observations were made, the practice relating to rules nisi has been
used in various contexts. The essential character and purpose of the procedure,
however, remains to ensure that (a) notice is given to an affected party; (b) a prima
facie case is made out for the relief sought; and (c) such relief may be granted unless
cause is shown why it should not be granted.
[15] The authorities demonstrate that the use of the rule nisi procedure and its
adaptation to new circumstances has occurred in a manner consistent with the
principles of procedural law. In each instance, it has occurred in the context of
application proceedings, requiring the granting of a rule nisi to be supported by
evidence which warrants the granting of the rule.” Footnotes omitted.
[7] Before Cengani -Mbokazi AJ, the matter was not opposed; the interim
order with a rule nisi was granted in default of the respondents. On 5 May 2026,
the matter was opposed by the first respondent. Mr Dyantyi from the office of
Legal Aid South Africa appeared for the first respondent. The opposing
respondent had not filed her answering affidavit at that time; Mr Dyantyi
indicated to have instructions to file the answering affidavit.
[8] I was approached in chambers by Mr Talapile, Counsel for the applicant,
and Mr Dyantyi, Counsel for the first respondent. They both advised me that
they will, in court, seek for the matter to be postponed with a rule extended. I
enquired whether the interim order has been executed or not. Mr Talapile
advised, but the instructing attorney has intentions to execute as soon as 05 May
2026.
[9] I advised both counsels to address me in court with the following issues:
first, whether the matter falls within rule 34A for an interim payment to have
been sought; second, the effect of the grant and subsequent execution of the
interim order on the pending rescission application.
[10] In court, Mr Talapile asked for the matter to be postponed to a future date
to enable the opposing papers to be filed; he asked the rule nisi to be extended
to that date. He did not make a submission in respect of the issues I raised in
chambers; he argues that the court’s duty is simple to extend the rule as asked
and not concern itself with other issues.
[11] Mr Dyantyi did not oppose the postponement with the rule extended. He,
too, did not make submissions relating to the issues I raised, save to say that he
submitted on bar that his instructions to oppose the application are based on the
same issues. He goes further to say that the execution of para 2.1 of the order
will affect the pending litigation between the parties.
[12] I was not persuaded to not vary the interim order by Cengani -Mbokazi
AJ, and simple grant the postponement and the extension of the rule as sought, I
then granted the order that: -
“1. The matter is hereby postponed to 26 May 2026.
2. The rule nisi is hereby extended accordingly.
3. The applicant shall file its heads of argument on or before 19 May 2026.
4. The first respondent is directed to file its heads of argument on or before 21
May 2026.
5. The applicant is directed not to execute the interim order of 24 March 2026.”
[13] The following issues from the applicant’s application required more
scrutiny or consideration: -
[14] The applicant and the 1 st respondent divorced through a decree of divorce
issued by the Regional Court, Bloemfontein, on 10 September 2003.
[15] Subsequent thereto, the 1 st respondent initiated a rescission or variation
application before the Regional Court, Bloemfontein.
[16] In the rescission application, the 1 st respondent sought to interdict the 3 rd
respondent from releasing the pension fund of the applicant, pending the
determination of the rescission application. In the rescission application, the 1 st
respondent seeks the half share from the pension funds of the applicant. She
does so by virtue of marriage to the applicant.
[17] The rescission application has not yet been adjudicated as at the grant of
the interim order.
[18] The pension funds of the applicant held by the 3 rd respondent remain
withheld pending the final determination of the rescission application.
[19] In this application, the applicant seeks an interim payment. The question
is whether the applicant is entitled to an interim order in circumstances where
its claim is not a personal injury claim or a damages claim. I asked the Counsel
for the applicant to have regard to the provisions of rule 34A of the uniform
rules of this court and address me whether the interim order relating to interim
payment ought to have been granted in the circumstances of this case.
[20] I advised both Counsel that, in my prima facie view, the interim order
granting interim payment ought not to have been granted in the circumstances
of this court.
[21] Granting such an order was a mistake common to Counsel for the
applicant and the court during the hearing of the matter.
[22] Rule 42 grants this court the discretion to mero motu vary such an order.
On the basis of rule 42, I deemed it appropriate to vary the order by Cengani -
Mbakaza AJ, to the extent I directed the applicant not to execute the interim
order.
[23] The basis for that was, first, that the execution of paragraph 2.1 of the
interim order would render mute the pending litigation proceedings before the
Bloemfontein Regional Court. In which the payment of the pensions of the
applicant is the subject of that litigation.
[24] It is my view that had the court been aware of the legal fact or point of
law that it is impossible to grant an interim payment as prayed by the applicant
in circumstances not based on rule 34A, a claim not being damages claim where
liability has been determined. This case does not fall in the Rule 34A category
at all, to the extent it was erroneously sought and subsequently granted.
[25] I am mindful of the functus officio principle. It is a fundamental principle
of the common law that once a court has duly pronounced a final judgment and
order, it has no authority to alter or supplement it.3
[26] However, in Firestone SA (Pty) Ltd v Genticino 4, the court provided a
common law exception to the functus officio rule.
[27] Further to that, I relied on rule 42 to vary the interim order to the extent I
deem it appropriate. This, albeit, to state that the functus officio rule does not
apply to the interim order as it is not final, it is subject to the discretion of a
judge on a return day.
[28] In addition, this court is empowered by Section 172 (1) (b) to make an
order that is just and equitable. In circumstances of this case, an order just and
equitable is the one that suspends execution of the interim order granted. The
execution of that order would have drastic consequences, as I have explained in
the pending Regional Court case and the point of law I have explained above.
3 Estate Garlick v Commissioner for Inland Revenue 1934 AD 499 at 502.
4 1977 (4) SA 298 (A) at (306 H)
[29] A similar approach was followed in Re v GM Holdings 5, the court had
made an order requiring the respondent to pay a sum of money to the applicant
but ordered a stay of execution pending an appeal.
[30] In granting such an order, I need to state that:-
[31] An interim interdict is a temporary order that aims to protect the rights of
an applicant, pending the outcome of a main application or action. It attempts
to preserve or restore the status quo until a final decision relating to the rights of
the parties can be made by the review court in the rights of the parties. It bears
stressing that the grant of an interim interdict does not, and should not, affect
the review court’s decision when making its final decision and should not have
an effect on the determination of the rights in the main application. The purpose
of an interdict is to provide an applicant with adequate and effective temporary
relief.
[32] It was, in my view, in the interests of justice to have the interim order
execution stayed. Accordingly, in determining what the interests of justice
demand, a court must have regard to, and carefully weigh, all relevant
circumstances and factors. Undoubtedly, the relevant factors will differ in each
case. These non-exhaustive factors include:
5 1941 3 ALL ER 417.
(a) The kind and importance of the relief granted in the interim order
stayed.
(b) The potential for irreparable harm if the interim order is executed.
(c) Whether the interim order has a final effect or disposes of a
substantial portion of the relief sought in a pending litigation
between the parties.
(d) Whether there are prospects of success in the pending action
between the parties.
(e) Whether interim relief would unduly trespass on the exclusive
terrain of the other before the final determination of the
proceedings in courts.
(f) Whether allowing the execution of an interim would lead to
piecemeal adjudication and prolong the litigation or lead to the
wasteful use of judicial resources and legal costs.
Order
[33] In the result, the following order is issued:
1. The matter is hereby postponed to 26 May 2026.
2. The rule nisi is hereby extended accordingly.
3. The applicant shall file its heads of argument on or before 19 May
2026.
4. The first respondent is directed to file its heads of argument on or
before 21 May 2026.
5. The applicant is directed not to execute the interim order of 24
March 2026.
M MHAMBI
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Applicant : Mr. Talapile
Instructed by : Mnqayana Inc
Mthatha
Counsel for the Respondent : Mr. Dyantyi
Instructed by : Legal Aid South Africa
Mthatha
Heard on : 05 May 2026
Date of reasons : 05 June 2026
This judgment is delivered by circulation to the parties’ email addresses; the
date of delivery is deemed to be 05 June 2026 at 16hrs.