The standard opposed motion court roll is often heavily congested, meaning a regular application can take months to be heard. However, Rule 6(12) of the Uniform Rules of Court (High Court) and Rule 55 of the Magistrates’ Court Rules provide a mechanism for litigants to “jump the queue” when time is of the essence.
1. The Two-Pronged Test
To succeed in an urgent application, the applicant’s founding affidavit must explicitly satisfy two requirements:
1. You must set out the specific facts that justify why the matter cannot wait.
2. You must prove that if the matter were to be heard in the “ordinary course,” you would not be able to obtain “substantial redress.” In other words, by the time a regular court date arrives, the damage will be done and a court order would be meaningless.
2. Levels of Urgency
South African courts recognize a “spectrum of urgency”:
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Extreme Urgency: Matters involving a threat to life, the imminent removal of a child from the country, or the immediate spoliation (unlawful deprivation) of property.
- Commercial Urgency: Our Courts have recognized that financial loss can constitute urgency, provided the loss is significant and would lead to business collapse or irreparable harm.
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Semi-Urgent: Matters that need to be heard faster than the usual three-month wait, but allow the respondent a few days to file papers.
3. The Danger of “Self-Created” Urgency
If a litigant becomes aware of a problem in January but only approaches the court in March, the court will likely strike the matter off the roll for self-created urgency. A delay in bringing an application must be fully explained. If the explanation is insufficient, the judge will refuse to hear the merits of the case, and the applicant will often be ordered to pay the other side’s legal costs on a punitive scale.
by Jaques van den Ende