Applications brought to the High Court will follow the procedure, and applicable requirements are set out in Rule 6 of the Uniform Rules of Court. Rule 6 provides that, in the ordinary course, an applicant must allow a Respondent five (5) days to indicate their Intention to Oppose. Once a matter becomes opposed, a Respondent must, within fifteen (15) days, deliver an Answering Affidavit and annexures. The Applicant may then deliver a Replying Affidavit within ten (10) days of the Respondent' 's Answering Affidavit. Once the Applicant has delivered its reply, it may, after five (5) days, apply to the Registrar for a date for the hearing of the matter.

Uniform Rules of Court

However, an urgent applicant is unique, and the onus falls on the Applicant to show the cause of urgency. This application does not follow the ordinary course of the Uniform Rules of Court. Rule 6(12) provides that in urgent applications, the court or a judge may waive formalities and service in the ordinary course, hear the application in such manner, and follow such procedure as it deems fit.1 Further, in every affidavit or petition filed in support of any application, the Applicant must set forth explicitly the circumstances averred to render the matter urgent and why the Applicant claims that Applicant could not be afforded substantial redress at a hearing in due course.2 A person against whom an order was granted in such person's absence in an urgent application may, by notice, set down the matter for reconsideration of the order.3

Our courts are cognisant that some issues are time sensitive, and the court will essentially be called upon to give preference to the Applicant to prevent the prejudice and harm that may materialise or continue if the Respondent's behaviour complained of continues unabated. An example is the removal of children from their homes or out of South Africa.

Rule 6(12)(b) thus sets out the test for when a court will regard an application as urgent: whether the Applicant can seek substantial redress in due course to protect his rights. It is as simple as that. Despite a seemingly widespread view to the contrary, the test is not whether there is harm – no matter how serious – or of what duration. Therefore, harm is not the requirement laid down by Rule 6(12) and should not be read into it. 

In East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd [2011] ZAGPJHC 196, the court laid out the test for urgency. "An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the Applicant must state the reasons why he claims that he cannot be afforded substantial redress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial redress in an application in due course. The rules allow the court to come to the assistance of a litigant because if the latter were to wait for the normal course laid down by the rules, it will not obtain substantial redress”.

Conclusion

Therefore, if the Applicant does not illustrate sufficient urgency for an urgent application and the justification for non-compliance with time periods for service of an application, the court may decline to enrol the matter.

Written by Robyn Shepherd, Attorney, SchoemanLaw