“What do you mean my matter is not urgent?”
This is a question that we hear from clients frequently and, given the importance and effect litigation can have on a person or a company, it’s a perfectly reasonable question to pose to one’s attorney.
Unfortunately, urgency is a complicated subject, a matter of degree and highly contextual. Even to practising attorneys, urgency can be very controversial; parties in urgent matters will, almost always, have to battle over whether the matter is urgent at all.
That being said, this article serves to explain the concept, at a glance, and provide an insight in to the urgent application procedure.
When matters are not urgent
When applications are brought in the High Court, the procedure and requirements applicable are set out in Rule 6 of the Uniform Rules of Court (save where proceedings are prescribed in terms of specific legislation). Rule 6 provides that, in the normal course, an applicant must allow a respondent a period of 5 days to indicate their intention to oppose. Once a matter becomes opposed, a respondent must, within 15 days, deliver an answering affidavit, together with any relevant documents. The applicant may then deliver a replying affidavit, within 10 days of the respondent’s answering affidavit. Once the applicant has delivered its reply, it may, after 5 days, apply to the registrar for a date for the hearing of the matter.
This means that, in the ordinary course and assuming no unnecessary delays or interlocutory processes interrupting the timetable for filing of affidavits, the time required before an applicant may even apply for a date for hearing, is 35 court (business) days. What makes matters worse is that, due to various factors, our court rolls are busy; an application for a hearing date in the normal course would, usually, mean that the matter is heard 6 months (or more) after the date is applied for.
Naturally, there are matters which simply cannot wait a period of 9 months for resolution.
Coetzee, J famously remarked, as the very first sentence of his judgment in Luna Meubel Vervaardigers (Edms) Bpk V Makin And Another (T/A Makin’s Furniture Manufacturers)