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Red Flag Series: Watch Out! Don’t Be Caught Dressing Your Applications As Urgent

Fasken
Reading Time 4 minute read
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Overview

A similar suite as that of the  High Court, Pretoria , if not perhaps an even stricter regime is to be followed in the High Court, Johannesburg, on the enrolment of urgent applications. 4 October 2021 saw a important notice issued by Deputy Judge President Mr Justice Roland Sutherland (“the DJP”) to the legal fraternity, to that effect. It relates in particular to what can be coined best as an effective disruption of the Urgent Motion Court Roll in Johannesburg, by what the DJP described as undesirable practices by some attorneys and counsel. The enrolment of matters on the urgent court roll each week is at an all time high, in some instances amounting to 60 matters or more. The resource and allocation of judges to the urgent court roll is finite and there is no capacity available to supplement the urgent roster with an additional judge. What is undeniably frustrating is that a number of the matters enrolled on the urgent court roll do not pass muster vis a vis urgency. Time that could have been allocated to urgent matters is wasted. A disciplined approach by attorneys is what is being called for in respect of determining the urgency of a matter.

To crack down on this abuse of process and what has been famously coined seek to “jump” the proverbial queue, the following warning shots have been fired:

  • If no irreparable harm is apparent if the order is not granted in that particular week ,the matter ought not to appear on the urgent roll.
  • Awarding a punitive costs de bonis propriiusas well as an order forbidding attorneys and counsel from charging their own client a fee will be considered if a non-urgent matter is enrolled as one of urgency.
  • Lawyers need to be bold in their advice to their clients. In the words of the DJP … “Practitioners must not be timid in the face of anxious and bullying clients who demand gratification of their subjectively perceived needs. The era of ‘lets see what the judge might think’ is now officially over”.
  • Setting out a case on and basis for urgency in separate section of the founding affidavit is mandatory, which is all too often not done. Going forward failing to do so will attract punitive costs orders.
  • Arguments on urgency must be succinct and articulated quickly and clinically. Lengthy grandstanding performances must stop.
  • The rule and practice in the Division on urgent matters is that it must be enrolled for the Tuesday before noon the previous Thursday. All too often this rule has also been flouted. This will no longer be allowed. If the set down on- a day other than a Tuesday is considered to be justifiable then it requires exceptional circumstances and the leave of the judge. The registrar has been specifically instructed to refuse to enrol any matter in the urgent court except on a Tuesday, unless a judge directs that the matter been rolled on another day.
  • Unrealistic time-frames set by an applicant for the opponent to file opposing papers have resulted in outcomes where a judge’s valuable time has been wasted reading the papers only for the parties to reach agreement to remove the matter for a later set down or where the judge is unable to properly prepare without the full set of papers. What is in store ahead is that a full set of papers must be available to the judge on the previous Thursday in order to effectively prepare.
  • The papers must be prepared in a manner that is suitable to be adjudicated urgently – only that which is really important must feature in the affidavit. What is vital is a proper analysis of the prayers sought and articulation of the facts surrounding those prayers. Care must be taken not to annex documents which have no or very little peripheral value. Respondents in answering the founding affidavit are called upon to provide proper references to paragraphs in the founding affidavit and in providing a series of answers to numbered paragraphs to correctly cross reference to where the rebuttal material is stated.
  • Against giving long narrative responses to the founding affidavit without references to the paragraphs in the founding affidavit and providing a series of perfunctory answers to numbered paragraphs without any cross referencing to where the material rebuttal is stated wastes a lot of time and is not acceptable.

The working of the urgent court will be the subject of the study during the 4th term of 2021, currently running. Legal practitioners are invited to contribute any further constructive suggestions to optimizing the operation of the urgent court.

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