What Is an Urgent Application?
Court proceedings ordinarily take place according to prescribed procedures and time periods. These rules provide each party with a fair opportunity to prepare and present their case.
There are, however, circumstances in which waiting for the ordinary court process may substantially undermine the relief that a litigant requires.
In the High Court, Rule 6(12) of the Uniform Rules of Court allows a court, in an urgent application, to dispense with the ordinary forms and service provided for in the Rules and to determine the matter at such time, place and in such manner as the court considers appropriate.
This means that ordinary notice periods may be shortened where the circumstances genuinely justify doing so.
What Is an Application?
An application, sometimes referred to as motion proceedings, is generally determined primarily on written affidavits and supporting documents filed by the parties.
The applicant launches the proceedings by filing a notice of motion supported by a founding affidavit setting out the facts and legal basis upon which the relief is sought.
The respondent may oppose the application and deliver an answering affidavit, after which the applicant may ordinarily deliver a replying affidavit.
Application proceedings are generally appropriate where the matter can properly be determined on affidavit. Serious and foreseeable disputes of fact may affect whether motion proceedings are appropriate and how the court deals with the matter.
What Does Rule 6(12) Require?
A party asking to be heard urgently must do more than simply label the application “urgent”.
The founding affidavit must explicitly set out the circumstances which render the matter urgent and explain why the applicant cannot be afforded substantial redress at a hearing in due course.
Explain the Urgency
The applicant must identify the facts and circumstances that require the court to intervene sooner than the ordinary process would allow.
Explain Why Ordinary Relief Is Insufficient
The applicant must explain why substantial redress will not be available if the matter is heard in the ordinary course.
The urgent procedure exists because some disputes genuinely cannot wait. An applicant must establish the basis for urgency in the founding papers.
What Does “Substantial Redress in Due Course” Mean?
This is one of the most important concepts in determining whether an application belongs on the urgent roll.
The question is essentially whether the applicant can still obtain meaningful and substantial relief if the dispute proceeds through the ordinary court timetable.
If the ordinary process will still provide substantial redress, the fact that an earlier hearing would be more convenient or preferable does not necessarily make the matter urgent.
A matter can be extremely important, stressful or financially significant to a client without satisfying the legal test for urgency. The court considers whether the ordinary process can still provide substantial redress.
Must the Harm Be Irreparable?
The test for urgency should not simply be reduced to whether the applicant can prove “irreparable harm”.
The enquiry under Rule 6(12) is whether substantial redress can be obtained at a hearing in due course. The assessment is therefore directed at whether meaningful relief will remain available if the applicant has to wait for the ordinary process.
The nature, seriousness and timing of the threatened prejudice will nevertheless be important when determining whether the matter requires immediate judicial intervention.
What Types of Matters May Justify Urgent Relief?
There is no closed list of matters that automatically qualify as urgent. Each case must be considered on its own facts.
Urgent relief may potentially be appropriate where something is about to occur, or is already occurring, and waiting for the ordinary court process would materially undermine the effectiveness of the relief ultimately sought.
Spoliation & Possession
Certain unlawful deprivation-of-possession disputes may require prompt intervention, depending on the facts and timing of the matter.
Immediate Child-Related Issues
Matters involving the immediate safety, welfare or movement of children may warrant urgent intervention where substantial redress cannot wait.
Imminent Harm
Urgent interdictory relief may be appropriate where prejudicial conduct is imminent and later relief would not provide sufficient protection.
Time-Sensitive Business Disputes
Certain commercial or contractual disputes may justify urgency where an imminent event would materially affect the relief available later.
A particular type of case is not necessarily urgent merely because it involves property, children, money or commercial interests. The facts must demonstrate why substantial redress cannot be obtained in due course.
What Will the Court Consider?
The assessment of urgency is fact-specific. Some of the practical considerations that commonly arise include the following:
What Is About to Happen?
The applicant should identify the event, conduct or threatened harm that requires intervention and explain when it is expected to occur.
What Prejudice Will Be Suffered?
The nature and seriousness of the prejudice must be properly explained rather than stated in broad or speculative terms.
When Did the Applicant Learn of the Problem?
The chronology matters. The court will consider when the applicant became aware of the conduct and what was done thereafter.
Why Can the Matter Not Wait?
The papers must explain why an ordinary hearing would not provide substantial redress.
Is Another Effective Remedy Available?
The existence of another remedy capable of providing substantial redress may affect whether urgent intervention is justified.
Is the Degree of Urgency Justified?
The amount by which ordinary time periods are shortened should be proportionate to the actual urgency of the circumstances.
What Is Self-Created Urgency?
One of the most common problems with urgent applications is delay.
If an applicant knows about a problem, waits without adequate explanation and then approaches the court at the last possible moment, the court may find that the urgency was created by the applicant's own inaction.
That can be fatal to enrolment on the urgent roll.
If you become aware of conduct that may require urgent court intervention, seek legal advice promptly. Waiting until the threatened event is hours or days away can make it far more difficult to establish genuine urgency.
Does Any Delay Automatically Destroy Urgency?
No. Delay is relevant, but it is not necessarily decisive on its own.
There may be a proper explanation for the time taken before proceedings were instituted. For example, a party may have been attempting to resolve the dispute, gathering necessary information or waiting for a response that could have avoided litigation.
What matters is that any delay is properly explained and that the applicant can still demonstrate why substantial redress cannot be obtained through the ordinary process.
How Much Can the Ordinary Time Periods Be Shortened?
There is no single urgent timetable that applies to every case.
The degree to which the ordinary rules are relaxed should correspond with the actual urgency of the matter. A dispute requiring intervention within hours is different from one that can reasonably be heard within several days or weeks.
An applicant should therefore not give the respondent less time than is genuinely justified by the circumstances.
The more dramatically an applicant departs from the ordinary rules and time periods, the stronger the justification for that departure must be.
Why Is Condonation Requested?
Because an urgent application may depart from the ordinary forms, service requirements and time periods prescribed by the Rules, the applicant ordinarily asks the court to condone the non-compliance and hear the matter as one of urgency.
The applicant must justify the procedural departure in the founding affidavit. Merely requesting condonation in the notice of motion is not enough if the supporting facts do not establish urgency.
What if You Are Served With an Urgent Application?
An urgent application can impose extremely short deadlines on a respondent. A notice of motion may require the respondent to indicate an intention to oppose or deliver papers far sooner than would ordinarily be required.
The fact that the respondent believes the application is not urgent does not mean that the papers should simply be ignored.
A respondent may challenge urgency and argue that the matter should not be heard on the urgent roll, while also dealing with the merits where appropriate.
If you are served with an urgent application, obtain legal advice immediately. The time available to prepare opposition may be significantly shorter than in ordinary litigation.
What Happens if the Court Finds That the Matter Is Not Urgent?
Where an applicant fails to establish the required urgency, the court may decline to entertain the matter on the urgent roll and strike it from the roll.
That does not necessarily mean that the applicant has lost the underlying case on its merits. The problem may be that the matter was brought through the wrong procedural route or at an unjustifiably accelerated pace.
The applicant may then need to pursue the matter through the ordinary process, depending on the circumstances.
What About Legal Costs?
Bringing an application urgently can be expensive because substantial legal work may need to be completed in a very short period of time.
There is also a risk of an adverse costs order if the application is struck from the urgent roll or dismissed. Costs remain a matter for the court's discretion and should not be described as automatic in every unsuccessful urgent application.
Before launching urgent proceedings, an attorney should assess not only whether the client has a substantive case, but also whether the facts genuinely justify approaching the urgent court.
Urgency Does Not Decide the Merits
Urgency and the merits of a case are separate issues.
A litigant may have an excellent underlying legal case but fail to establish that it belongs on the urgent roll. Conversely, establishing urgency does not automatically mean that the applicant is entitled to the substantive relief sought.
Once the court is satisfied that the matter should properly be heard urgently, the applicant must still establish the legal requirements for the particular relief claimed.
Urgency and Interim Interdicts
Many urgent applications seek an interim interdict designed to preserve the position or prevent specified conduct pending the final determination of a dispute.
The requirements for interim interdictory relief are distinct from the requirements for urgency. An applicant must therefore deal with both issues where both are relevant.
“Should the court hear this matter urgently?” and “Is the applicant entitled to an interdict?” are not the same enquiry. Both may need to be established.
What Should You Do if You Think Your Matter Is Urgent?
Time matters. The first step is to obtain legal advice as soon as possible so that the facts, chronology, available remedies and degree of urgency can be assessed.
Record the Timeline
Identify exactly when you became aware of the problem, what happened thereafter and when the threatened harm is expected to occur.
Preserve the Evidence
Keep correspondence, notices, contracts, messages, photographs and other documents relevant to the threatened harm.
Explain What Will Happen if You Wait
Be specific about the prejudice that will occur and why ordinary court proceedings will not provide substantial redress.
Act Promptly
Once the need for urgent intervention becomes apparent, unnecessary delay can undermine the case for urgency.
The Key Takeaway
Urgent applications are an important mechanism where waiting for the ordinary court process would deprive a litigant of substantial redress. They are not simply a faster version of ordinary litigation.
An applicant must place sufficient facts before the court to establish the urgency, explain why substantial redress cannot be obtained at a hearing in due course and justify the extent to which the ordinary rules and time periods are being shortened.
Delay, self-created urgency and an inadequate explanation of the prejudice can result in the court refusing to entertain the matter on the urgent roll.
If urgent relief may be required, the chronology of what happened and how quickly you responded can become an important part of the application itself.
Do You Need Urgent Court Intervention?
Danel Campbell Attorneys assists with urgent applications, interim interdicts and other time-sensitive litigation. We can assess the circumstances, determine whether the matter meets the requirements for urgency and advise on the appropriate legal process.
Explore Litigation Services →This article provides general legal information regarding urgent applications in South Africa and does not constitute legal advice. Urgency is determined on the facts of each matter, and applicable procedural requirements may differ depending on the court, division, relief sought and circumstances of the case. Specific legal advice should be obtained as soon as possible where urgent court intervention may be required.