Urgent Court Applications

Our Courts operate in terms of strict rules, procedures and directives. If you do not follow these rules, procedures and directives, your court application will be dismissed, or your case might not even make it to a Judge for a hearing.

Generally, and in the ordinary course of events, you have to give the other party (the Respondent) five days to file a notice of appearance, and another 15 days to file an answering affidavit.

What is an Urgent High Court Application?

An Urgent High Court Application is an application based on Urgency. 

Urgent Court Applications are applications, as the name suggests that are urgent by nature. Some people, and especially people in overseas jurisdictions may call them ‘Emergency Applications”.

High Court Rule 6(12) deals with Urgent Applications. This is the Rule that a Judge may, where a case for Urgency has been made out, in Court or Chambers, condone the non-compliance with regards to the forms and service.

When one brings an Urgent High Court Application, you must first make out a case for Urgency. If there is no Urgency, then the Court will likely dismiss the application with costs, without looking at the substance of the matter.

Our clients often cannot understand it if we say that a specific matter will not pass the urgency requirements of the Courts.

What is urgent and what is not urgent is often up for debate, even between senior attorneys and advocates. Urgency can also have different degrees of Urgency.

The degrees of Urgency are set out in the matter: Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makins Furniture Manufacturers) 1977 (4) SA 135.

Coetzee J found that “urgency” in respect of urgent applications, which are not ex parte applications under Rule of Court 6(4), involves, mainly, the abridgement of times prescribed by the Rules, and, secondly, the departure from established filing and sitting times of the Court.

He held that the following factors, in ascending order of Urgency, must be borne in mind:

• The question is whether there must be a departure at all from the times prescribed in Rule 6(5)(b). Usually, this involves a departure from the time of seven days which must elapse from the date of service of the papers until the stated day for the hearing. Once that is so, this requirement may be ignored and the application may be set down for hearing on the first available motion day, but regard must still be had to the necessity of filing the papers with the Registrar by the preceding Thursday so that it can come onto the following week’s motion roll, which will be prepared by the Motion Court Judge on duty for that week.
• Only if the matter is so urgent that the Applicant cannot wait for the next motion day, from the point of view of his obligation to file the papers by the preceding Thursday, may he consider placing it on the roll for the next Tuesday, without having filed his papers by the previous Thursday.
• Only if the Urgency be such that the Applicant dare not wait even for the next Tuesday may he set the matter down for hearing on the next court day at the normal time of 10:00 or for the same day if the Court has not yet adjourned.
• Once the Court has dealt with the causes for that day and has adjourned, and only if the Applicant cannot possibly wait for the hearing until the next court day at the normal time that the Court sits, he may set the matter down forthwith for hearing at any reasonably convenient time, in consultation with the Registrar, even if that be at night or during a weekend.

The Requirements of Urgency:

When a Judge finds a matter to be urgent, it is based on their finding that:

• the circumstances of the case justify the shortening of times and the nonconformity from the Rule; and: –
• if the matter is not heard urgently that the Applicant will not be afforded substantial redress at a later hearing.

Applicants must consider their prejudice if they fail to bring the urgent application. What will the consequences be if they decide not to proceed with the application, and can their prejudice be cured differently?

If your matter is urgent, then the application must be brought immediately. Many ‘urgent’ cases are dismissed because the Applicant waited a few days before deciding on bringing the matter to Court.

General Procedures

The Applicant must, as far as practical, conform to the rules. The Courts still require the use of Form2(a) and the Applicant’s lawyers must ensure that they stipulate the requested condensing of the time periods in the Notice of Motion.

The Notice of Motion must appoint a time for the hearing of the application, to give time to the Respondent to notify of his intention to oppose. (At least two hours’ notice before the indicated time must be supplied).

How do we evaluate potential urgent applications?

Each case must be evaluated, swiftly, on a case by case basis.

Different Jurisdictions, Different Procedures and Directives

There are at the moment fourteen provincial divisions of the High Court. The different Courts follow the same rules, but their guidelines and directives differ.  It is therefore vital to investigate and make sure compliance with the different requirements exists.

General Directives

When considering if an urgent application must be brought, one must consider Rule 6 (High Court Rules), and guidelines set out in case law.

These Guidelines Include:

• Comply with the rules as far as possible – the Judges prefer order, so try and keep things as they should be.
• Your papers must be filed the week before, except if the matter is so urgent that it must be heard sooner.
• You must make out a case for Urgency.

High Risk

These type of applications can be high risk for the Applicant. When a Judge finds that a matter lacks Urgency, they usually dismiss the matter for lack of Urgency with costs.  This means that the Applicant must pay for their own legal team and the legal cost of the other party.

Further, the Respondent then often feels that their case is more substantial, and they feel emboldened.

Which Judge will hear the urgent matter?

Our Courts typically allocate Judges on a weekly rotation basis to hear the urgent matters. The smaller Courts may have one Judge for the week, where the bigger Courts may have two or even more Judges available for urgent matters.

When will a Judge hear the matter?

Again, it depends on various factors, such as:

• Where the Court is situated;
• The Urgency of the matter;
• The potential prejudice that may be suffered by the Applicant.

Judges are available all the time, 24 hours of each day, the entire year to hear urgent matters. That means if your matter is suitably urgent, that you may approach the Court at 02:00 in the morning!

The downside of bringing an application on this basis is that the Judges will still have to work the next day and it may be even more challenging to convince a judge that a matter is really that serious at that time of the morning.

Examples of Urgent Applications:

Example 1:  you’re the Mother of two young children, you’re going through a divorce, and you decide to take the kids to Mozambique for a holiday to de-stress. You’ve booked the flights and the accommodation, and you’re all set to leave in a few days. Then the estranged husband finds out and doesn’t like the idea, because malaria is rife in that part of Mozambique, so he comes to us to bring an Urgent High Court Application to stop you.

Example 2: you’re the recently divorced father of a child, and you decide to take your child and leave South Africa and go to live with your family in the UK. You’ve booked the flights, your family have made arrangements for you in the UK, and you’re leaving tomorrow. Suddenly your ex hears that you’re fleeing the country with the child and she comes to us to bring an Urgent High Court Application to stop you.

Some of the prominent cases that deals with Urgent High Court Applications:

• Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A) at 782A-G,
• Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makins Furniture Manufacturers) 1977 (4) SA 135 (W) and
• Sikwe v SA Mutual Fire & General Insurance 1977 (3) SA 438 (W) at 440G-441A.