Mr Justice Sutherland, the Deputy Judge President ("DJP") of the Gauteng Local Division of the High Court of South Africa, has in a notice dated 4 October 2021, urged all legal practitioners to be more disciplined when considering whether or not a matter is urgent to justify its enrolment in urgent court. The DJP warned practitioners not to be timid in the "face of anxious and bullying clients" who demand gratification of their "subjectively perceived needs".
Legal practitioners have been advised that Judges would consider awarding punitive personal costs against legal representatives where matters that are not truly urgent are enrolled in urgent court and Judges will also consider forbidding attorneys and counsel to charge their own client a fee, if non-urgent matters are enrolled in urgent court.
The DJP reminded practitioners that the ultimate test as to whether a matter is urgent, is whether irreparable harm is apparent if an order is not granted in that week. If irreparable harm is not apparent, the matter ought not to appear on the urgent roll.
The notice from the DJP also highlights that practitioners are to set out in a discreet section of the founding affidavit the case on urgency and practitioners have been warned that if this does not occur, they shall attract punitive costs orders.
The argument on urgency must be succinct and practitioners must be able to "quickly and clinically" articulate the argument in support of urgency.
The general rule is that an urgent matter must be enrolled for a Tuesday, before noon on the previous Thursday. In a case where a set down on a day other than a Tuesday is believed to be justifiable, exceptional circumstances for deviating from the Tuesday must be set out in the affidavit. The Registrar has been instructed to refuse to enrol any matter in urgent court, except on a Tuesday, unless a Judge directs that it can be enrolled on another day in the week.
The DJP has urged practitioners to ensure that parties are given realistic time periods for the filing of opposing papers. If opposing papers are required to be filed only after the Thursday before the set down, often they do not reach the relevant Judge in time for the Judge to read the opposing papers. Consequently, the Judge is not in a position to properly prepare for the hearing of that application. Practitioners should aim to ensure that when setting a matter down in urgent court, they set appropriate time periods for a full set of the papers to be available to the Judge on the Thursday preceding the set down on the Tuesday of the next week.
Additionally, the DJP has asked legal practitioners to include in the affidavit only that which is important to the relief claimed. Waffling affidavits should be avoided. At most, a proper analysis of the relief being sought and the facts relevant to that relief should be set out in the founding papers. Annexures that are not relevant to that relief and not going to be referred to during the hearing, should be left out of the founding papers.
Respondents have been warned not to give a long narrative of their response to the founding affidavit, without reference to paragraphs in the founding affidavit.
The workings of the urgent court in the Gauteng Local Division will be the subject of study during the fourth term of 2021. Legal practitioners have been invited to contribute constructive suggestions about how to achieve an optimal model for the urgent court. Such suggestions should be sent to skajee@judiciary.org.za.
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