Many moons ago, Alexander Pope coined a beautiful piece of literature which states that: “A little learning is a dangerous thing: drink deep, or taste not the Pierian Spring” [see "A Little Learning by Alexander Pope"]

The above prose is apt to the manner and approach adopted by many practitioners in prosecuting urgent applications in the High Court of South Africa. Many papers filed depict a little learning, which is surely a dangerous thing.

Practitioners are advised to drink deep otherwise don’t dare taste the Pierian Spring.

Urgent Applications in the High Court of South Africa are brought under the provisions of Uniform Rule 6 (12) of the Rules Regulating the Proceedings of the Several Divisions of the High Court of South Africa (referred to merely as the Uniform Rules). It is that rule that any practitioner seeking to prosecute an urgent application must first read and read deep before committing pen to paper.

In addition to Uniform Rule 6 (12) practitioners should also read Directives regulating proceedings in their specific Divisions. These often differ from Division to Division and must be read together with the Uniform Rules. Failure to familiarize with the local Directives may result in punitive costs, not only against clients but against practitioners themselves.

On the 18th of September 2020, the Office of the Judge President passed the Consolidated Directive: Court Operations in Pretoria and Johannesburg High Court During the Extended Covid-19 National State of Disaster which provides in respect of Urgent Applications as follows:-

“[165] The enrolment of an allegedly urgent matter found not to warrant a hearing on this [Urgent] roll may, at the discretion of the judge seized with the matter, result in punitive costs being awarded and the culpable Counsel and Attorney being ordered not to be paid any fees arising from the prosecution of such matter(s)”

It is trite that before one can draw a pleading, they have to have at least some knowledge of the applicable laws and procedure as was pointed out in [see Alphedie Investments (Pty) Ltd –v- Greentops (Pty) Ltd 1975 (1) SA 161 (T) at 161H.

The pronouncement above is very critical in the context of Urgent Applications because such proceedings always come with abridgement of timeframes and opportunity to reflect on matters. In Gallagher –v- Norman’s Transport Lines (Pty) Ltd 1992 (3) SA 500 the point was made thus :-

“the question of abridging the prescribed timeframes [ ] is dictated upon by the exigency and circumstances of the particular case. The courts have warned that an applicant who believes that the matter is urgent must truncate the period afforded the other party, mindful of and proportionate to the degree of urgency. The courts have warned that not every matter is urgent and therefore a kneejerk approach intruncating the period will not be tolerated.

What the court warned above applies with equal if not more force to many matters appearing in our Urgent Motion courts, especially during this recess. In Luna Meuber Vervaardigers –v- Makin 1977 (4) SA 135 (W) the following point was also made:-

Practitioners should carefully analyse the facts of each case to determine, for the purposes of setting the case down for hearing, whether a greater or lesser degree of relaxation of the rules and of ordinary practice of the court, is required. The degree of relaxation should not be greater than the exigency of the case demand. It should be proportionate.

In circumstances where there is no earth-shattering event propelled an Applicant to move the application on urgent basis, the court may find such applications to be an abuse of the process of the court which often cannot go unpunished.

In Luna Meubel Vervaardigers (Edms) Bpk –v- Makin & Another [(1977) (4) SA 135 (W) at 137F the court had the following to state: -

“ … mere lip service to the requirements of Rule 6 (12) will not do and an applicant must make out a case in the founding affidavit to justify the particular extent of the departure from the rules.

It is therefore critical that an Applicant must look at and deal with the requirements of Rule 6 (12). The Applicant must take the court through the dual requirements set out in Rule 6 (12) and show the court why he or she should be availed the benefit of urgent audience.

Contrary to what many litigants believe, urgent audience in court is not a right immediately available to all litigants. It is not for the taking. The court in East Rock Trading 7 (Pty) Ltd & Another –v-Eagle Valley Granite & Others [(2011/33767) [2011] 923 September 20110 was even more emphatic on the point: -

“ … the import thereof is that the procedure set out in rule 6 (12) is not there for the taking. An Applicant has to set forth explicitly the circumstances which he avers renders the matter urgent. More importantly, the Applicant, must state the reason why he claims that he cannot be afforded substantial redress at a hearing in due course…”’

What this entails therefore is that an Applicant must, in his Founding Affidavit, show two critical things before the court may hear him. He must show :-

(i) Why he avers that his matter is urgent;

(ii) Why he may not be afforded substantial relief in a hearing in due course. 

The above requirements must be supported by cogent reasoning interwoven with the facts of the matter and showing actual prejudice that will be suffered if applicant is not heard on an urgent basis.

Another important fact often missed is that once the opportunity to be heard on an urgent basis is granted, it must be utilized otherwise the privilege is lost.

MAVUNDLA J in Cosmas Tshilas –v- Minister of SAPS & Others [Case Number : 96214 / 2016 Northern Gauteng High Court, Pretoria (25 January 2017) had the following to state in such circumstances :-

“[9] Once the right to approach the court on an urgent basis arises, it must be exercised promptly, otherwise the urgency is lost”

Once a matter is set down on the urgent roll it thus cannot be postponed while it retains urgency, subject of course to exceptional circumstances as may be dictated by the facts of the particular matter.

The responsibility thus rests with the practitioner to appropriately and correctly guide and counsel their clients wishing to prosecute urgent applications on the correct approach adopted by courts to such applications.

Failure to do so may lead to adverse costs orders for having put the other side to unnecessary trouble of defending futile applications at great costs.

Lets drink Deep, Otherwise Taste Not the Pierian Spring.

By Counsel : Adv I Mureriwa.

+27 71 151 9000, advmureriwa@yahoo.com

PRETORIA.

17 DECEMBER 2022