When an urgent eviction order lands without warning – especially while you are outside the country – the sense of helplessness is immediate. Vacate by the date ordered by the Court or face the sheriff; those are the only choices most people see. Yet South African civil procedure rules build in a safety valve for precisely this scenario: Rule 6(12)(c) of the Uniform Rules of Court. It allows the party shut out of an urgent hearing to bring the same matter back before the judge, armed with the evidence that never made it onto the record the first time.
The real-life catalyst
A commercial tenant recently approached us after returning from a brief overseas trip to discover an urgent eviction order waiting on her desk. The landlord's version, presented ex parte, painted the picture of a short-term office lease that had expired. The court granted an order authorising the sheriff to remove the tenant and any movable property if she failed to vacate by the deadline.
Only on reading the application papers did the tenant realise how much context had been left out:
- Several of her key employees live permanently on the leased premises.
- That fact places the matter squarely under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (the PIE Act), which imposes strict procedural safeguards and notice periods before anyone may be removed from their home.
- The landlord, well aware of the occupants, never mentioned them in the affidavit.
Had the judge known about the residential component, the eviction would almost certainly have been postponed for proper PIE-compliant notices, if not refused outright.
Rule 6(12)(c): the procedural do-over
Urgent applications are designed for genuine emergencies. Because speed trumps full ventilation of facts, judges rely heavily on the applicant's candour. Rule 6(12)(c) recognises that this reliance can be abused – intentionally or by oversight – so it grants the absent party an explicit remedy:
"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."
The mechanism is straightforward:
- File a notice of set-down invoking Rule 6(12)(c) within a reasonable time after learning of the order.
- Serve an affidavit detailing the information the court did not have – here, the employees' residence and the landlord's knowledge of it.
- Ask the court either to rescind or vary the original order, or to postpone enforcement pending a PIE-compliant process.
Because the same judge (or at least the same court) re-examines the case, there is no need for costly rescission proceedings or a fresh summons. The issue is simply reopened on a fuller factual canvas.
Why this matters to commercial landlords and tenants alike
- For tenants: An urgent order obtained behind your back is not the end of the road. If material facts were withheld, you have an express right to place them before the court – provided you act quickly and with clean hands.
- For landlords: Shortcuts can backfire. A failure to disclose occupants, statutory protections or relevant lease clauses can lead the court to overturn an order, award costs against you and doubt your credibility in any follow-up litigation.
- For both parties: Urgency should be genuine. Courts have grown sceptical of eviction applications labelled "urgent" simply to skip standard notice periods. When occupants' homes are at stake, the PIE Act's protections are rarely dispensable.
Practical steps when you discover an ex parte eviction order
- Read the order and founding papers immediately. Identify what the judge was (and wasn't) told.
- Consult counsel without delay. The longer you wait, the harder it is to argue that you acted reasonably.
- Gather corroboration. Leases, correspondence showing the landlord knew about residential occupation, payslips proving employees' addresses – anything that demonstrates the omitted facts.
- Set the matter down under Rule 6(12)(c). Courts understand the rule's purpose; provided the new information is truly material, judges are receptive to reconsideration.
- Prepare for a full hearing. The court may convert the reconsideration into a comprehensive debate on the merits, including whether the PIE Act applies and what a fair notice period should be.
A note on "second bites"
The rule is not a tactical reset button; it is a safeguard against injustice. Presenting the court with flimsy or irrelevant material will waste everyone's time and can cement the original order. Use the opportunity to supply only the facts that would have made a real difference had they been disclosed.
An urgent eviction granted in your absence is intimidating, but South African procedure recognises that speed can sometimes sacrifice fairness. Rule 6(12)(c) is the built-in remedy, giving you a legally sanctioned "second bite at the cherry" when crucial information was missing. For landlords, the lesson is equally clear: full disclosure is not just ethical; it is strategic, ensuring your urgent relief stands up under the inevitable second look.
If you suddenly find yourself evicted – or needing to evict – on an urgent basis, speak to a litigation specialist before the sheriff knocks. Knowing when (and how) to invoke reconsideration could be the difference between orderly resolution and costly reversal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
