Does the life of a rule nisi automatically extend on postponement of return date?

May 1st, 2019

This article is set to deal with the following –

  • the status of a rule nisi order after postponement of return date without a court order dealing with the life of the rule nisi; and
  • remedies available on expiry or discharge of the rule nisi.

A rule nisi is an order granted ex parte directed to a particular person or persons calling on them to appear in court on a certain fixed date to show cause why the rule should not be made absolute.

In practice it has become a norm and a logical presumption that in the instance where the rule nisi is the subject matter or heart of the proceedings then the postponement of the rule nisi has an automatic effect of extending the life of the rule. This was supported in the case of Crundall Brothers (PVT) Ltd v Lazarus No and Another 1991 (3) SA 812 (ZH), where the court held that postponement of a rule nisi had an automatic effect of extending the life of the rule. This was held on the ground that the relief was provided by the rule nisi and consequently to hold that the rule had lapsed would render the postponement nugatory as there would be no rule to confirm on the postponed return date.

I hold a different view, on the basis that a rule nisi is primarily an interim order of the court and it further has no independent existence, but is conditional on confirmation by the court, therefore, the court has no authority to mero motu extend the life of a lapsed order (see MV Snow Delta Serva Ship Ltd v Discount Tonnage Ltd 2000 (4) SA 746 (SCA) irrespective of whether or not the relief sought is dependent on the existence of the rule nisi.

This means that on the return date, when the matter is postponed and there is no order of court dealing with the life of the rule nisi, the rule then lapses and consequently the umbrella of protection afforded to the applicant by the rule falls away, leading to the discharge of the duty of compliance on the respondent or defendant post expiry of the rule.

In National Director of Public Prosecutions v Walsh and Others 2009 (1) SACR 603 (T) the court provided that, a rule nisi order is an unusual indulgence to the applicant, as it permits the applicant to exceptionally condemn the unheard respondent in their absence. Such practice goes against the general grain of fairness in the judicial process and it is for this reason that orders of this nature should be strictly temporary and for a fixed limited duration.

Therefore, it is solely the duty of the applicant when postponing a return day for a matter incorporating a rule nisi order to bring to the attention of the court the existence of the rule to enable the court to extend the rule to a specific date and the date to which the matter stands postponed, otherwise the rule simply lapses.

Remedies available to the applicant on expiry or discharge of the rule nisi

A rule nisi is discharged by failure of appearance by an applicant on the return date. Rule nisi is also discharged on expiry of its fixed period.

Where the rule nisi is discharged by prescription or effluxion of time, the applicant may on expiry of the rule nisi bring an application in terms of r 27(1) and (2) of the Uniform Rules of the Court, which reads:

‘(1) In the absence of agreement between the parties, the court may upon application on notice and on good cause shown, make an order extending or abridging any time prescribed by these rules or by an order of court or fixed by an order extending or abridging any time for doing any act or taking any steps in connection with any proceedings of any nature whatsoever upon such terms as to it seems fit.

(2) Any such extension may be ordered although the application, therefore, is not made until after expiry of the time prescribed or fixed, and the court ordering any such extension may make such order as to it seem fit … .’

The applicant may only bring an application in terms of the above intimated in circumstances where the rule has expired, this remedy may be used in instances where the applicant postpones the return date and omits to deal with the life of the rule on postponement.

In the case of Fisher v Fisher 1965 (4) SA 644 (W) the court had to deal with an issue where the applicant failed to appear on return date and in the circumstances the court held that it did not have the power to revive a rule nisi, which had lapsed because the applicant had failed to take steps within the time limit laid in the rule and the court then decided that where the applicant defaults by failing to appear on return date then the rule nisi is discharged and the matter struck from the roll.

It is the above decision that inspired the amendment of r 27 and birthed r 27(4) which reads:

‘(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.’

Therefore, where the rule is discharged by default of appearance of the applicant on return date, the applicant may bring an application in terms of r 27(4) referred to above to revive the life of the discharged rule.

In conclusion, it is crucial for litigants to know the distinction between r 27(1), 27(2) and 27(4) of the Uniform Rules of the Court applications and the different circumstances to which the remedies intimated above are available. The above seeks to protect the applicant in rule nisi applications. Further, applicants as dominus litis are in applications of this nature entrusted with a duty to take reasonable steps to ensure that the court makes an order as to the life of the rule nisi on the return date and to ensure that a rule nisi order does not continue beyond the date without a court order.

Sinazo Ntshangase LLB (Fort Hare) is a legal practitioner at Mamyeni Mazibuko Attorneys in Centurion. Ms Ntshangase writes in her personal capacity.

This article was first published in De Rebus in 2019 (May) DR 10.