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It is common practice amongst legal practitioners, acting on the instructions of their clients, to petition the court on an urgent basis for various matters. Typically, this occurs when practitioners are desirous of assisting their clients with enforcing rights which may either be in imminent danger or in reaction to a potential infringement of a right. Whatever the case, the various applications which reach the court on an urgent basis often mean that the courts are inundated with copious ‘urgent’ applications to decide on. But is everything always urgent? This is the question the South Gauteng High Court recently weighed in on in the Volvo Financial Services Southern Africa (Pty) Ltd v Adamas Tkolose Trading CC 2023 ZAGPJHC 846 decision.

The facts

Briefly the facts are that a financial services company (applicant) entered into a lease agreement with the respondent in terms of which the respondent would lease 2 (two) tractors from the applicant. The respondent failed to adhere to the terms by defaulting on payments and, in response, the applicant cancelled the lease agreement and petitioned the court for an urgent rei vindicatio order. The rei vindicatio is an action through which an owner who has been deprived of possession of an item, sues in order to regain possession. The applicant’s reasons for approaching the court on this basis were that, firstly, it feared that the tractors would not be in the same condition if the court were to refuse its urgent application and, secondly, the vindicatory nature of its application made it inherently urgent. Unconvinced by this argument, the court struck the matter off its urgent roll with reasons to provide at a later stage.

The nature of urgency

In providing its reasons, the court unpacked the category of cases or factors that would determine whether a matter ought to be heard urgently or not. The urgency is determined not necessarily by the nature of the claim brought by an applicant but rather by the circumstances under which the court’s adjudication is sought. Thus, the crucial question is whether the applicant would be able to receive substantial redress at a later stage if the matter was not heard on an urgent basis. Thus, while spoliation applications (applications instituted in order to restore possession, irrespective of ownership) are likely to be urgent in order to correct a recent unlawful deprivation of possession, and threats to one’s liberty, health and one’s home are likely to be urgent, matters which based on the rei vindicatio may not always need to be heard by a court on an urgent basis.

Accordingly, the court held, there is no class of claims or right which are inherently urgent and furthermore cautioned that practitioners would be well advised to “place the notion of inherent urgency out of their minds”. Urgency implies that any further delays in the hearing of the matter will completely prejudice the applicant as the right which it seeks to protect would have been infringed upon; put differently, a matter is only urgent ‘‘because of the imminence and depth of harm to the applicant not because of the category of right the applicant asserts’’.

The court then considered the kind of right which the applicant in this case petitioned the court to hear on an urgent basis – being a vindicatory right. The court’s position on these kinds of rights was that even if there were to be a class of rights which held the quality of being inherently urgent, vindicatory applications did not have the same status or quality. While these types of matters could be urgent where there is an imminent danger that property will be lost or destroyed, such a consideration would depend on the circumstances of the matter. The court held that, contrary to Jacobs v Mostert 2011 ZACWCHC 213, which was relied upon squarely by the applicant to found urgency, it is not true or correct that, upon the cancellation of an agreement, a financial services provider could approach the court on an urgent basis for the return of the property, or that ‘‘inherent urgency underlies a claim for the return of property (a vindicatory claim)”. The court was of the view that the high court in Jacobs was misdirected in this finding and that it could not find any support for this view in the decisions which that court had quoted. The court therefore held that the applicant could not place their reliance on the Jacobs decision as it was clearly incorrect.

The applicant furthermore argued that its matter was urgent because the tractors could possibly be subjected to further wear and tear if the matter was to proceed in the ordinary course. This argument the court rejected because lease and hire agreements are by their nature agreements which consider and except fair wear and tear. The court was not convinced that if the vehicles were found to have been severely damaged due to launching the rei vindicatio in the ordinary course, the applicant’s rights could not be protected by a later action against the respondent for damages. Possible wear and tear were in all likelihood factored into the instalments which the respondent was to pay to the applicant in terms of the lease agreement. Accordingly, for the applicant to argue that the tractors would be damaged beyond repair if its application was not heard urgently was not convincing to the court.

Value of the decision

The value of the decision lies in its caution to legal practitioners as to what constitutes urgency in our law, as well as the clear definition provided. To reiterate, it is not the nature of the right to be protected, but the circumstances of the specific matter and, particularly, the imminence and extent of the harm to be suffered by the applicant, which determine its urgency. Therefore, even rei vindicatio applications could be urgent where the circumstances necessitate a handling of the matter on an urgent basis, lest the applicant suffers harm while the matter is on the ordinary roll awaiting its hearing date. The ruling makes it clear that every matter is not, of its own right, inherently urgent. Litigants and legal practitioners would be well advised therefore not to create their own urgency lest the matter be struck from the roll and an adverse costs order be made against them.