Article 39/2025

The first leg of the test to determine whether or not urgency exists, when an urgent application is brought, requires a court to assess whether an urgent hearing is necessary because the applicant will not be able to obtain substantial redress in the normal course. With reference to, inter alia, Chung-Fung (Pty) Ltd and Another v Mayfair Residents Association and Others (2023/080436) [2023] ZAGPJHC 1162 (13 October 2023), at paragraph [18], what are the factors identified when considering whether or not there is compliance with this first leg of the test for urgency?

The second leg for the test of urgency requires the court to assess whether or not it would be in the interests of justice to consider other factors that may nonetheless preclude an urgent hearing. With reference to Mogalakwena Municipality v Provincial Executive Council, Limpopo and Others 2016 (4) SA 99 (GP), at paragraph [64], what are the factors identified to determine whether or not there is compliance with the second leg?

What are the relevant considerations identified when considering whether or not there is self-created urgency?

What are the relevant factors identified when determining whether or not there is any procedural prejudice that might befall the respondent, when considering urgent applications?

What are the relevant factors identified in determining whether or not the administration of justice will suffer any prejudice if an urgent application is granted?

_____________________________________

1. In the labour court’s view (Ellsworth John O’Connor v LexisNexis (Pty) Ltd (2024) 35 SALLR 124 (LC)), the test for urgency consists of two legs. The first leg requires a court to assess whether an urgent hearing is necessary because the applicant will not be able to obtain substantial redress in the normal course (see Maphalle v National Heritage Council and Others (2023) 44 ILJ 579 (LC), at [18]; Vumatel (Pty) Ltd v Majra and Others (2018) 39 ILJ 2771 (LC) (Vumatel), at [8]; Association of Mineworkers & Construction Union and Others v Northam Platinum Ltd and Another (2016) 37 ILJ 2840 (LC), at [21] – see, also, Chung-Fung (Pty) Ltd and Another v Mayfair Residents Association and Others (2023/080436) [2023] ZAGPJHC 1162 (13 October 2023) (Chung- Fung), at [18]; East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others [2012] JOL 28244 (GSJ) (East Rock), at [6]; In re: Several matters on the urgent court roll 2013 (1) SA 549 (GSJ) (Several matters)).
2. The second leg required the court to assess whether it would be in the interests of justice to consider other factors that might nonetheless preclude an urgent hearing (see Mogalakwena Municipality v Provincial Executive Council, Limpopo and Others 2016 (4) SA 99 (GP) (Mogalakwena Municipality), at [64] – those factors have been referred to as ‘secondary considerations’ in De Wit (2021) The correct approach to determining urgency in Without Prejudice: Sabinet (June 2021), at p 13).
3. Those factors included, but were not limited to:
   1. the issue of selfcreated urgency (Vumatel (supra), at [18], [20] to [25]; Ecolab (Pty) Ltd v Thoabala and Another (2017) 38 ILJ 2741 (LC), at [28]);
   2. any procedural prejudice that might befall the respondent (Chung-Fung (supra), at [24]; Mogalakwena Municipality (supra), at [64]; IL&B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another; Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd and Another 1981 (4) SA 108 (C) (Marcow Caterers), at 112H and 144B); and
   3. any prejudice to the administration of justice (Mogalakwena Municipality (supra), at [64]).
4. When determining the first leg of the urgency test, the labour court had to consider the merits of the applicant’s claim as set out in his founding papers, but this was only for the purposes of identifying a prima facie likelihood that the applicant had been entitled to the relief he sought.
5. In Both Roodt Pretoria (Pty) Ltd v Van der Merwe 2006 JDR 0909 (T), the high
   court held as follows:
   1. ‘[10] In order to determine whether the matter is urgent, the Court needs only look at the averments by the applicant without necessarily having to adjudge the merits and the demerits thereof. Whilst the Court will have regard to the fact that the respondent is disputing that the matter is urgent, the Court need not weigh the correctness or otherwise of the said averments, but merely, in my view, makes a value judgment. In other words, the assessment of the averred facts regarding urgency need not be approached in the same vein as the assessment of the evidence for purposes of adjudging the entire case.’
6. It would then be up to the applicant to convince the court that this relief would not equate to ‘substantial redress’ if heard in the normal course because the delay (occasioned by a hearing in the normal course) would substantially diminish the benefit of that relief (East Rock (supra), at [7]).
7. To pass the first leg of the urgency test, the applicant needed only to show that he would not obtain ‘substantial redress’ in the normal course. This was not equivalent to irreparable harm. It was something less.
8. What constitutes ‘substantial redress’ will depend on the facts of each case, but, generally speaking, financial compensation in due course, plus interest, will meet this definition.
9. The first leg of the urgency test is all important. Once this leg has been satisfied a court will be loath to deny an urgent hearing unless the second leg of the test reveals compelling reasons not to do so (Chung-Fung (supra), at [24]).
10. This is because the failure to grant an urgent hearing, when the applicant cannot obtain substantial redress, denies the applicant its constitutional right of access to court, which right has been described by the constitutional court, in Chief Lesapo v North West Agricultural Bank 2000 (1) SA 409 (CC) at [22] as cited in Chung-Fung (supra), also at [22], in the following terms:
    1. ‘The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance. As a result, very powerful considerations would be required for its limitation to be reasonable and justifiable…’
11. The second leg of the urgency test imposes a reasonable and justifiable limitation on the right of urgent access to court by empowering the court to consider whether, in the interests of justice, there may be some reason to deny an urgent hearing notwithstanding that an applicant cannot obtain substantial redress. This power derives from the court’s inherent ability to regulate its own process in the interests of justice in terms of s173 of the South African Constitution.
12. When implementing the second leg of the urgency test the court may take into account any relevant factor in the interests of justice, but the most common factors are:
    1. the issue of selfcreated urgency;
    2. any procedural prejudice that might befall the respondent; and
    3. prejudice to the administration of justice.
13. The first factor, self-created urgency, relates to a scenario where the applicant has created the need for an urgent hearing because it has culpably delayed in approaching the court. This is a justifiable limitation on the right of urgent access to court because, but for the applicant’s culpable conduct, there would be no need to burden the administration of justice with an urgent hearing (or push other litigants further back in the queue for justice).
14. However, urgency is only self-created if the applicant has culpably delayed to such an extent that, if it had not delayed, it would have been able to obtain substantial redress on the normal motion roll. This means that even a delay of several months might not equate to self-created urgency if the applicant would, in any event, not have been able to obtain substantial redress in the normal course. It is, therefore, not always necessary for an applicant to account for every day leading up to the issuing of urgent papers, much less fly off to court with a half-cocked application in the interests of expedition.
15. Regarding the second factor, a court will not grant an urgent hearing if the nature of the urgent proceedings will cause the respondent undue procedural prejudice (Chung-Fung (supra), at [24]; Mogalakwena Municipality (supra), at [64]; Marcow Caterers (supra), at 114B).
16. When making this assessment, the court will need to consider how much time the respondents have been afforded to file their answering papers and if any culpable delay on the part of the applicant has deprived the respondent of being able to comprehensively defend itself in accordance with the principle of audi alteram partem (bearing in mind the alleged urgency of the matter and the procedural benefits of being a respondent in motion proceedings, such as the Plascon-Evans Rule). The court may also need to consider whether any potential prejudice might be cured by an interim order preserving the status quo and/or a postponement to allow the respondent more time to file answering papers (a postponement that will generally not be granted if the applicant has, from the beginning, provided the respondent with enough time to file answering papers).
17. Regarding the third factor, a court must assess the prejudice that the administration of justice may suffer as a result of granting an urgent hearing. This would include an assessment of the degree of urgency, meaning that, while a matter may be urgent, it may not be urgent enough to be heard on the date requested by the applicant (see Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another t/a Makin's Furniture Manufacturers 1977 (4) SA 135 (W)). Other considerations include unnecessarily clogging up the urgent roll, culpably placing the urgent judge under too much pressure, or failing to comply with any local practice directions (Chung-Fung (supra), at [25]; Several matters (supra), at [20]).