SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2026-146038
In the matter between
L[…] M[…] APPLICANT
And
T[…] F[…] M[…] FIRST RESPONDENT
FIRST NATIONAL BANK SECOND RESPONDENT
INVESTEC BANK LIMITED THIRD RESPONDENT
ABSA LIMITED FOURTH RESPONDENT
REGISTRAR OF DEEDS, PRETORIA FIFTH RESPONDENT
REGISTRAR OF DEEDS, JOHANNESBURG SIXTH RESPONDENT
________________________________________________________________________________
JUDGMENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
31 July 2026 _______________________
_______________________________________________________________________________
Mdalana-Mayisela J
[1] This is an application brought by the First Respondent to anticipate the
return day of a rule nisi granted by this Court on 30 June 2026. The rule nisi was
granted ex parte in favour of the Applicant, L[…] M[…] . It interdicts the First
Respondent and various other parties from dissipating or concealing assets
pending the finalization of divorce proceedings between the parties.
[2] The Applicant and the First Respondent are spouses. They were married in
terms of customary law in Zimbabwe on 29 April 2000. Thereafter, on 2 July
2001, they concluded an antenuptial contract excluding the accrual system.
On 20 July 2001, they concluded a civil marriage. The First Respondent is the
sole director and sole shareholder of several companies, and he maintains
bank accounts in South Africa, the United Kingdom, and Zimbabwe. The
divorce proceedings are pending under case number 2026-018759.
[3] The Applicant contends that there is a serious legal question regarding the
proper matrimonial property regime governing the marriage. She argues that
because the customary marriage was concluded while the First Respondent
was domiciled in South Africa, the marriage is in community of property. She
further contends that the subsequent antenuptial contract is invalid because
it cannot retrospectively alter the matrimonial property regime without a
court order in terms of section 21(1) of the Matrimonial Property Act 88 of
1984. Alternatively, she claims a redistribution order in terms of section 7(3) of
the Divorce Act 70 of 1979.
[4] The Applicant approached this Court ex parte and obtained a rule nisi
that effectively freezes the First Respondent's personal bank accounts, the
bank accounts of several companies under his control, and prohibits the
transfer of immovable properties. The rule nisi order, in paragraph 8, expressly
states that “the application be served upon all the Respondents." The return
states that “the application be served upon all the Respondents." The return
date for all respondents to show cause why the rule should not be made final
is 12 August 2026.
[5] Before the return date arrived, the First Respondent launched this
application to anticipate the return day. He seeks final relief that the rule nisi
be discharged and that the Applicant's anti-dissipation application be
dismissed. He does not seek interim relief or a variation of the order. This is
significant because the effect of his application, if successful, would be to
finally determine the matter before the other respondents have had an
opportunity to be heard.
[6] The First Respondent's notice of motion lists only the Registrar of the Court
and the Applicant's attorneys as parties to be served. The proof of service
shows that only the Applicant was served with the anticipation application
by email. The other five respondents, including the banks and the Registrars
of Deeds, were not served and are not aware of this application.
[7] The fundamental principle of our law is that no final order may be made
against a party without that party being given an opportunity to be heard.
This is the audi alteram partem rule. In Administrator, Transvaal and Others v
Zenzile and Others
1, the Appellate Division emphasized that the right to be
heard is a fundamental principle of justice that cannot be lightly disregarded.
This principle applies with equal force to applications to anticipate the return
day of a rule nisi. Even if the anticipation is initiated by only one respondent,
an ex parte order impacts the legal status of the entire case.
[8] The Second to Sixth Respondents are parties to this matter. They have
been cited as respondents and are subject to the rule nisi. The banks have
been ordered to freeze accounts. The Registrars of Deeds have been
ordered to prohibit the transfer of immovable properties. They have a direct
and substantial interest in the outcome of this application. If the First
Respondent's application succeeds, the orders against them will be
discharged. They are entitled to be heard on that question.
[9] The First Respondent argues that he is entitled to anticipate the return day
in terms of Rule 6(8) read with Rule 6(12)(c) of the Uniform Rules of Court. That
is correct. However, the right to anticipate does not relieve a party of the
obligation to give proper notice to all affected parties. Rule 6(8) requires that
a party anticipating a return day must give notice to all parties who have an
a party anticipating a return day must give notice to all parties who have an
interest in the matter. The First Respondent failed to do so. He cannot seek
final relief against parties who were not given notice of the proceedings.
[10] The First Respondent seeks final relief, the discharge of the rule nisi and
the dismissal of the Applicant's application. This is not a request for interim
relief pending the return date. It is a request to finally determine the matter. A
court cannot grant final relief against parties who have not been heard.
[11] The Applicant, in turn, asks this Court to confirm the rule nisi. I cannot do
so. The return date is 12 August 2026, and that is the proper occasion for the
confirmation or discharge of the rule. On that date, all parties will have been
1 1991 (1) SA 21 (A).
served, and all will have an opportunity to make submissions. To confirm the
rule nisi now, in the absence of the other respondents, would be procedurally
irregular. It would deprive the other respondents of their right to be heard on
the merits of the order that affects them.
[12] The proper course is to remove this application from the roll. The First
Respondent has brought his application prematurely and without proper
notice to all affected parties. The matters he raises can and should be dealt
with on the return date of 12 August 2026, when all parties are properly
before the Court.
[13] I am not determining the merits of the First Respondent's application. He
may well have valid arguments that the rule nisi should be discharged. Those
arguments will be considered on the return date. However, they must be
considered in the presence of all parties who have an interest in the
outcome. The First Respondent must serve his papers on all respondents and
give them proper notice of the return date.
[14] The question of costs must also be addressed. The First Respondent
brought this application without proper service and without notice to the
other respondents. He seeks final relief in circumstances where he cannot
obtain it. This has caused unnecessary costs for the Applicant, who was
compelled to oppose the application
[15] However, I am also mindful that the First Respondent was acting within his
rights to anticipate the return day. The defect in his application is the failure
to serve all parties, and it is procedural. The proper order is to remove the
application from the roll and to reserve the costs for determination on the
return date. On that date, the Court will have a full picture of all the
circumstances and will be in a position to make an appropriate cost order.
ORDER
[16] I therefore make the following order:
1. The First Respondent's application to anticipate the return day is removed
from the roll.
1. The First Respondent's application to anticipate the return day is removed
from the roll.
2. The rule nisi granted on 30 June 2026 remains in force pending the return
date of 12 August 2026.
3. The costs of this application are reserved for determination on the return
date of 12 August 2026.
4. The First Respondent is directed to serve a copy of this judgment and all
relevant papers on all other respondents forthwith.
_______________________________
MMP Mdalana-Mayisela
Judge of the High Court
Gauteng Division, Johannesburg
Date of hearing: 29 July 2026
Date of delivery: 31 July 2026
Appearances:
For the applicant: Adv P Mafu
Instructed by: Memela KS Inc
For the respondent: Mr T Mudenda
Instructed by: Mudenda Inc Attorneys