The very last result that a company wants when proceeding with an urgent application is for its application to be dismissed for lack of urgency. Not only does the company not achieve the desired outcome, but it has to pay its opponents costs as well as its own legal team. Talk about a double whammy! This trap should be avoided at all costs.
Our courts have prescribed rules and procedures that govern the way they function and how legal proceedings are commenced and adjudicated. Applications are generally brought before the court when there are no anticipated disputes of fact and the court can make a determination based on the affidavits filed by the parties, usually without the need for oral evidence as in action proceedings, which require witnesses to give evidence.
Ordinarily, parties are obliged to afford each other time for the filing of notices and affidavits and the applicable normal time periods are set out in the Rules of Court. There are, however, unique disputes that give rise to circumstances that would result in grave prejudice and harm to a party if such party were required to follow the normal time periods strictly. In such circumstances, time is a critical factor and the applicant cannot follow the normal time periods due to the harm that the applicant will suffer if it were to do so.
In launching an urgent application, an applicant will request the court to condone the applicant's non-compliance with the Rules of Court that prescribe the manner and time periods that are applicable. 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.
Our courts generally allocate an urgent judge or two urgent judges weekly to hear urgent applications. In seeking condonation from the court, the applicant must clearly demonstrate to the court that the application is urgent and warrants being heard as such. In doing so, the applicant must justify the truncated time periods placed on the respondent for the filing of affidavits.
Every issue that potentially threatens a client's business is urgent to the client and understandably so. However, it is important to distinguish what clients consider to be urgent from what our courts consider to be urgent. Our courts generally do not recognise commercial urgency.
By commercial urgency I am referring to disputes regarding a claim for payment of money from one party to another. The courts are generally not tolerant of such disputes being enrolled on the urgent roll as alternative remedies are available in the normal course.
What do the courts consider to be urgent? Whether or not a dispute is urgent for purposes of a court application should be determined carefully on a case-by-case basis. An example that immediately springs to mind is a case of spoliation or 'self-help', which our law does not allow. A spoliation would involve, by way of example, the disabling of access permits or changing locks on doors to address a dispute regarding the termination of a lease or a default by the tenant in terms of the lease. Spoliation applications are generally brought on an urgent basis even though they often have a commercial element to them. Further examples are cases that involve injury to minor children and unlawful actions that threaten the continued employment and livelihood of employees.
What are the important factors to consider before launching an urgent application? The party intending to launch the application should carefully consider what its prejudice is;
how serious it is and its impact; and whether such prejudice can be cured by some other remedy in law. Sometimes an alternative remedy is available, however, interim urgent relief may be required.
When the applicant gained knowledge of the respondent's prejudicial behaviour or actions is vitally important because the applicant must take steps to launch its application as expeditiously as possible after learning of the harm or prejudice.
An applicant that knows of harm that it is suffering and does nothing about it for a period of time and then launches an urgent application is likely to have its application struck from the urgent roll with an order to pay the costs of the respondent. Once the harm has materialised or come to the knowledge of the applicant, the applicant must immediately prepare court papers and file its application promptly to demonstrate that the matter is urgent and warrants being heard as such. The presumption if an applicant delays in filing its application is that the prejudice or harm being suffered is not of such a serious nature and the court is therefore unlikely to entertain the application.
What do we advise clients? It is important for management to identify situations that present serious harm or possible serious harm to their business. The degree of prejudice caused by the harm should be carefully and promptly considered and a decision should be taken on whether or not to approach attorneys for advice. This should be done swiftly as this sequence of events is almost always articulated in court papers to demonstrate the alacrity with which the applicant acted after learning of the harm. It is important to be organised and to approach attorneys with all the relevant documents pertaining to the matter. Preferably all relevant documents should be indexed and chronologically sorted to assist the attorneys and counsel. In this regard, the speed with which the matter is dealt with and the time of filing extends to the attorneys as well. This should, of course, never compromise the matter and the quality of the papers filed at court. We urge our clients to be cautious when enrolling urgent applications and ensure same are in fact urgent.