When Is an Application Truly Urgent? A Practical Guide for South African Litigants

Courts have consistently emphasised that urgency is not determined by convenience or preference, but by strict legal requirements. This article provides a practical overview of when an application will be considered truly urgent, and what courts expect from applicants seeking relief on this basis.

The Legal Framework

Urgent applications in the High Court are governed by Rule 6(12) of the Uniform Rules of Court, which permits a court to dispense with the ordinary forms and time periods prescribed for applications. Rule 6(12) speaks to when the outlined formalities and procedures may be dispensed with due to urgency. A court may do so as and when it deems fit, but the rule requires that the applicant must explicitly set forth the circumstances which render the matter urgent and the reasons why it could not be done in the ordinary course.

In Luna Meubel Vervaardigers (Edms) Bpk v Makin, the court made it clear that Rule 6(12) is not there for the mere taking of shortcuts, but for cases where the applicant can justify deviation from the ordinary rules. An applicant must therefore explicitly set out the circumstances rendering the matter urgent and the reasons why substantial redress cannot be obtained in due course.

Key Requirements for Urgency

1. Urgency Must Be Genuine

The applicant must demonstrate that the matter is inherently urgent and requires immediate intervention. Courts will not entertain an urgent application unless the applicant demonstrates, through their founding affidavit, that the matter cannot wait for a hearing on the ordinary motion roll. This requires clear, factual evidence of imminent and irreparable harm where there is a risk of damage, which must be real and substantial not speculative. There must exist an absence of adequate alternative remedies where no other legal avenue must be capable of providing effective relief. Furthermore, there should exist a strict time sensitivity, accompanied by documentary support such as correspondence, notices, and timelines which must show why ordinary timelines are insufficient.

Where shortened timeframes for notice or reply are proposed, the founding papers must justify each departure from the Rules of Court. Courts will also examine whether the applicant could have acted earlier and whether the urgency is self-created. Applicants must also demonstrate prima facie right, even if open to some doubt. In East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd, the court emphasised that urgency is not there for the taking and that an applicant must make out a proper case in the founding affidavit to justify urgent relief. The court will assess urgency objectively, considering whether the circumstances genuinely warrant deviation from the ordinary court timetable.

2. No Substantial Redress in Due Course

A cornerstone of urgency is whether the applicant will obtain substantial redress in the ordinary course if the matter is not heard urgently. In East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd, the court held that the absence of substantial redress is the primary consideration in determining urgency. Similarly, in IL & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd, the court found that where an applicant can be compensated in due course, urgency will generally not be established. This requirement ensures that the urgent roll is reserved for cases where delay would render any eventual relief ineffective.

Self-Created Urgency

One of the most common reasons urgent applications fail is self-created urgency. In Luna Meubel Vervaardigers (Edms) Bpk v Makin, the court warned that applicants cannot rely on urgency that arises from their own delay or inaction. This principle was reaffirmed in Commissioner for the South African Revenue Service v Hawker Air Services (Pty) Ltd, where the court held that a party who delays in enforcing its rights cannot later claim urgency when the consequences of that delay materialise. Even where a matter is objectively urgent, unexplained delays may result in the application being struck from the urgent roll.

Misuse of the urgent roll wastes judicial resources and prejudices opposing parties. Courts impose strict consequences, including:

1. Punitive cost orders:Often on an attorney-and-client scale, even where the applicant succeeds on the merits but fails on urgency.
2. Striking the matter from the roll:Forcing the applicant to re-enrol on the ordinary motion roll.
3. Reputational harm:Repeat misuse may result in reduced judicial leniency.
4. Contempt and ethical exposure:Particularly where ex parte orders were obtained through omission or misrepresentation of material facts.

The Court’s Discretion

Even where urgency is established, the court retains a wide discretion. In Luna Meubel Vervaardigers (Edms) Bpk v Makin, the court highlighted that judges must exercise their discretion in balancing the interests of both parties, as well as the demands placed on the urgent court roll.A court may:

• Strike the matter from the roll for lack of urgency
• Postpone the matter
• Or hear it on a truncated timetable

This discretion underscores that urgency alone does not guarantee a hearing.

Practical Pitfalls to Avoid

One of the more frustrating aspects of urgency to understand is that it is contextual. Applicants and their attorneys have no control over what other matters may appear on the court roll for the day and, if the court is confronted with genuinely urgent matters, it will use its discretion in deciding which matters are heard i.e. which matters are urgent and which are not. Consequently, the Courts have repeatedly criticised the misuse of urgent applications. Practitioners should be mindful of the following:

1. Inadequate explanation of urgency
   As stressed in East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd, the founding affidavit must clearly set out the basis for urgency.
2. Failure to explain delays
   Unexplained delays may render an otherwise urgent matter non-urgent.
3. Relying on financial prejudice alone
   As illustrated in IL & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd, financial loss alone is usually insufficient.
4. Self-created urgency
   Courts are reluctant to assist litigants who have contributed to their own urgency.

Conclusion

Urgent applications remain a powerful procedural mechanism within South African law, but they are reserved for exceptional circumstances. Practitioners must therefore act swiftly, provide a full and candid explanation of the circumstances, and ensure that urgency is not self-created. Failure to meet these requirements may result in the matter being struck from the urgent roll, often with adverse cost consequences.

Importantly, recent developments indicate a more structured and disciplined approach to urgent litigation in South Africa. New practice directives relating to urgent applications, issued during 2025 and implemented from mid-year, have introduced stricter procedural compliance, increased reliance on digital filing systems, and an emphasis on properly motivated urgency. The growing use of electronic platforms reflects a broader shift toward efficiency, transparency, and active judicial case management.

These developments mark a clear evolution in the approach to urgency. Courts are increasingly unwilling to entertain poorly prepared or opportunistic applications, reinforcing the principle that urgency must be both genuine and responsibly presented. For practitioners, this signals the need to adapt, not only by acting swiftly, but by embracing precision, procedural discipline, and technological competence. In the modern context, the urgent court demands not just urgency in substance, but urgency in form.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.