“What do you mean my matter is not urgent?”

This is a question that we hear from clients frequently and, given the importance and effect litigation can have on a person or a company, it’s a perfectly reasonable question to pose to one’s attorney.

Unfortunately, urgency is a complicated subject, a matter of degree and highly contextual. Even to practising attorneys, urgency can be very controversial; parties in urgent matters will, almost always, have to battle over whether the matter is urgent at all.

That being said, this article serves to explain the concept, at a glance, and provide an insight in to the urgent application procedure.

When matters are not urgent

When applications are brought in the High Court, the procedure and requirements applicable are set out in Rule 6 of the Uniform Rules of Court (save where proceedings are prescribed in terms of specific legislation). Rule 6 provides that, in the normal course, an applicant must allow a respondent a period of 5 days to indicate their intention to oppose. Once a matter becomes opposed, a respondent must, within 15 days, deliver an answering affidavit, together with any relevant documents. The applicant may then deliver a replying affidavit, within 10 days of the respondent’s answering affidavit. Once the applicant has delivered its reply, it may, after 5 days, apply to the registrar for a date for the hearing of the matter.

This means that, in the ordinary course and assuming no unnecessary delays or interlocutory processes interrupting the timetable for filing of affidavits, the time required before an applicant may even apply for a date for hearing, is 35 court (business) days. What makes matters worse is that, due to various factors, our court rolls are busy; an application for a hearing date in the normal course would, usually, mean that the matter is heard 6 months (or more) after the date is applied for.

Naturally, there are matters which simply cannot wait a period of 9 months for resolution.

Rule 6(12)

Coetzee, J famously remarked, as the very first sentence of his judgment in Luna Meubel Vervaardigers (Edms) Bpk V Makin And Another (T/A Makin’s Furniture Manufacturers)

[1977] 2 All SA 156 (W) that:

“Undoubtedly the most abused Rule in this Division is Rule 6 (12)”

Our courts are very much alive to the fact that not all matters can be heard in the ordinary course; the prejudice, damage or suffering of parties may be such that the matter requires urgent or even immediate attention. Examples of these genuinely urgent matters abound but classic urgent matters would include: removal of children from their homes or out of the Republic, interdicts against imminent or ongoing violence, or interdicts to pend or set aside the recommendations of reports from our much beloved Public Protector (the latter of which may admittedly be debatable).

There are further, matters which are considered to be ‘inherently urgent’; cases involving insolvency, applications for committal to an asylum etc.

Rule 6(12) of Uniform Rules of Court provides for matters which cannot wait to be dealt with in the ordinary course. The Rule allows applicants to ask the court to “dispense with the forms and service provided for in these rules”; essentially, to indulge an applicant’s non-adherence with the normal rules of procedure set out in Rule 6 when a matter is of such urgency that it simply cannot wait for the normal procedures to be complied with.

When proceeding in terms of Rule 6(12), an applicant must set out a timetable for the filing of documents which it believes will a) allow it to return to court in the shortest possible time and b) allow the other side enough time to respond. The applicant must balance its need for urgency with the potential prejudice that its opponent suffers in not being afforded the full extent of the time periods allowed in the ordinary course.

The court in Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A) described how, when applying in terms of Rule 6(12), an applicant essentially prescribes his own procedure and timetable for filing (what follows is a translation):

“when an applicant appears before a judge in such a procedural manner he must ask the judge to disregard the rules applicable to ordinary adjudication. He is not obliged to go to the judge first to ask permission to act by means of extraordinary adjudication because Rule 6(12) expressly provides that the judge may deal with such a matter when and where he deems fit.

…the respondent is obliged, in the sense that he runs the risk of an order against him by default, and entitled to provisionally accept the rules which the applicant has adopted. When the matter comes before the judge he can object, but in the meantime, he dares not disregard the rules which the applicant has made for himself.”

The Rule requires the party seeking urgent relief to provide explicit detail of the circumstances which it believes make the matter urgent and the reasons why the party could not obtain relief in the ordinary course. In other words, parties bringing urgent applications need to convince the court that the matter is truly urgent and provide reasons why they should be able to ‘skip the queue’ as it were, in not proceeding in the ordinary course.

Urgency is a matter of degree

It’s important to understand that there are degrees of urgency. A matter which is extremely urgent cannot wait for relief in the ordinary course; it may not even be acceptable to wait for affidavits to be drawn up and filed on the other party. For example, the imminent removal of a child from the Republic cannot wait for attorneys to exchange papers; once the airplane door is shut, the matter becomes moot and there is a danger that the applicant may not be able to obtain substantive relief in the ordinary course, or perhaps any relief at all.

As noted in Il & B Marcow Caterers (Pty) Ltd V Greatermans Sa Ltd And Another; Aroma Inn (Pty) Ltd V Hypermarkets (Pty) Ltd And Another [1981] 2 All Sa 378 (C): “Should the matter be too urgent for affidavits to be prepared, the court can condone non-compliance with rule 6 (12) in terms of its powers under rule 27. Matters of extreme urgency can thus be brought before the court at any time, day or night.”

As the court noted in Luna Meubel Vervaardigers, there is an ascending order of urgency and this degree of urgency will be considered by the court when it decides whether and to what extent it will condone non-compliance with the ordinary rules of procedure.:

Urgency is contextual

One of the more frustrating aspects of urgency to understand is that it is contextual. Applicants and their attorneys have no control over what other matters may appear on the court roll for the day and, if the court is confronted with genuinely urgent matters, it will use its discretion in deciding which matters are heard i.e. which matters are urgent and which are not.

By way of an example, an applicant in an urgent application involving a shareholders’ dispute, will be made to wait in line for the applicant seeking to interdict his son from being flown out of the Republic.

If you find yourself in a situation where you or your company requires urgent relief, please feel free to contact Lucien Lewin or Matthew Thomson.

 

NOTE: Although the Magistrate’s Court has similar principles, this article focuses on proceedings in the High Court. This article is drafted with the practice of the Western Cape High Court in mind; each division of the High Court has its own requirements and procedure when it comes to urgent matters. In this regard, reference should be had to the practice directives of the relevant court.