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[2017] ZALCJHB 300
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Ecolab (Proprietary) Limited v Thoabala and Others (J1716/17) [2017] ZALCJHB 300; (2017) 38 ILJ 2741 (LC) (23 August 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Of
Interest to Other Judges
Case no: J 1716/17
In
the matter between:
ECOLAB
(PROPRIETARY)
LIMITED
Applicant
and
RAYMOND
THOABALA
First Respondent
KEVALI CHEMICALS
(PROPRIETARY) LTD
Second Respondent
Heard:
15
August 2017
Delivered:
23
August 2017
Summary:
Urgent application to enforce
restraint of trade. Fact that
breaches
of restraint of trade have an inherent quality of urgency
not a free pass to urgent relief.
Requirements of Rule 8 still to be complied with, and applicant
obliged to place satisfactory
reasons before the Court as to why the
matter should be treated as urgent. Matter struck off the roll for
lack of urgency.
JUDGMENT
TLHOTLHALEMAJE, J
Introduction:
[1] The
applicant approached the Court on an urgent basis, to seek final
interdictory relief enforcing certain restraint of trade
and
confidentiality undertakings contained in the first respondent’s
contract of employment. The specific orders sought by
the applicant
are as follows;
“
2.
The 1
st
Respondent is interdicted for a period of 12 (twelve) months [or such
other period as the above Honourable Court deem reasonable]
from
directly or indirectly;
2.1
Being interested or engaged, in any capacity (including but not
limited to an employee,
advisor, agent, consultant, director,
financier, manner, member of a close corporation, member of voluntary
association, partner,
proprietor, shareholder or trustee) in any
entity directly or indirectly engaged or interested in delivering any
service and/or
product to the clients and prospective clients of the
Applicant, in competition or replacement of the services and/or
products
provided by the Applicant to its clients and prospective
clients in South Africa;
2.2.
Being employed and/or utilized by the 2
nd
Respondent in
any capacity;
2.3.
Revealing, disclosing or in any way utilizing, for any purpose, the
confidential information
of the Applicant;
3.
The 2
nd
Respondent is interdicted and restrained from in
any way being associated with the 1
st
Respondent, in
breach of the Restraint of Trade Covenant of the 1
st
Respondent
4.
That the costs of this Application be paid by the 1
st
Respondent, alternatively, should be application be opposed, those
Respondents who oppose this Application’ (Sic)
Background:
[2] The
applicant carries on business in water, hygiene and energy
technologies and services. It services a broad variety of clients,
both local and international with a spectrum of what it terms ‘highly
technical’ services and products. It counts amongst
its
clients, Tiger Brands, ABI Bottling, Coca Cola, ‘SAB’,
Sedibeng Brewery, and McCain Foods. In servicing these clients,
it
has seven divisions including Food & Beverage, Hygiene &
Sanitation, Water Treatment, Pest Control and Institutional
Services.
[3] Mr
Raymond Thoabala (Thoabala) was employed by the applicant with effect
from 1 February 2012 as Engineering Service
Technician. At
some point during his employment, and in view of his excellent
performance in the applicant’s Food and Beverage
Division, he
was promoted to the position of Territory Manager for the Northern
Regions of South Africa.
[4]
Thoabala’s duties and functions related to the management of
sanitation, cleaning and lubrication products provided by
the
applicant to its clients to ensure
inter alia
that the
mechanical manufacturing lines at the clients ran smoothly and
hygienically. There is a dispute as to which clients Thoabala
had
serviced and how he had serviced them. He however denied that he had
audited, provided innovations and did corporate pricing
for the
applicant’s clients within his portfolio. He further contended
that his duties were simply of a technical nature,
and included
conducting of tests, collecting data, and calculations of results at
various sites.
[5] It is
common cause that Thoabala resigned from the applicant’s
employment on 7 April 2017 and had served his
one
month’s-notice. According to the applicant, Thoabala informed
Arnu Muller, the deponent to the founding affidavit and
applicant’s
Divisional Manager that he planned to move to KwaZulu- Natal as his
wife was relocating to that province. Thoabala
in turn had conceded
that he did mention to Muller that his wife had taken up employment
in KwaZulu-Natal, but however, this was
during a discussion that
preceded his resignation, which had nothing to do with the matter.
[6] It
was further common cause that Thoabala is presently employed by the
second respondent, a direct competitor of the applicant.
On his
version, he had been employed by the second respondent since
9 May 2017. The applicant contends that Thoabala
by being
so employed is acting in deliberate breach of the parties’
Confidentiality and Restraint of Trade Agreement, which
he had signed
in February 2012.
[7] The
applicant contended that whilst Thoabala’s employment with the
second respondent in itself could have little effect
on its business
and profitability, it has drastic effects, which could become
devastating should he be allowed to continue his
employment.
[8]
Thoabala and the second respondent opposed the application.
Central
to the opposition to the application is that it is not urgent,
alternatively that the urgency claimed is self-created.
Thoabala
further contended that he had no access to any information concerning
the applicant’s database, pricing, formulations,
business
structures or strategies and tenders. To the extent that he may have
had access to or was privy to such information (which
he denied), the
information was by now completely outdated and was of no application
or value in the market place.
[9]
Thoabala further contended that his interaction with the applicant’s
clients was extremely limited and at a junior level;
that he did not
interact or establish any trade connections with any decision-makers
at clients, let alone have them in his pocket
so much so that he
established any influence over them or the decisions they took
regarding suppliers or service providers.
[10] In
summary, the respondents’ case is that the applicant has failed
to prove that matter is urgent and there is no self-created
urgency;
or that it is the proprietor of the information it contends is
confidential; or that the information it contends is worthy
of
protection and qualifies as confidential information; or that there
exists trade connections between Thoabala and the applicant’s
clients for which it seeks to interdict and restrain him; and last,
that there mere employment of Thoabala by the second respondent
cannot
per se
infringe any proprietary interests of the
applicant.
Urgency:
[11] To
the extent that the respondents placed emphasis on the contention
that the matter was not urgent, I propose to deal with
this issue
first, as on the facts as pleaded, it will be dispositive of this
matter. The circumstances leading to this application
and the
contention that the matter was urgent are according to the applicant
as follows;
11.1
Whilst serving his notice, Thoabala suddenly became interested in the
applicant’s
operations at its clients both within and outside
of his portfolio. In particular, he became interested in the
operations at Distell
(Springs) and had requested permission to do
site inspections at this client, which request was refused;
11.2
Out of concern, Thoabala was cautioned during his last week of
employment with
the applicant that should it transpire that he was in
breach of his confidentiality and restraint of trade agreement, the
applicant
would seek interdictory relief against him.
11.3
On 10 May 2017, Distell cancelled part of its business with
the applicant
and awarded a trial contract to the second respondent.
The applicant viewed this as strange in that the second respondent
had no
apparent prior relationship with Distell, and also since it
had been contracted to render the exact same services that the
applicant
was performing for Distell.
11.4
‘In late June 2017’, the applicant ‘received’
reports that various site managers at its clients had seen Thoabala
at their sites. Upon further investigation, it was discovered
that he
was working for the second respondent and had been seen at Distell.
On 18 June 2017, the applicant had approached
its labour
consultants to assist it in enforcing the confidentiality and
restraint of trade agreement;
11.5
Several engagements with Thoabala’s attorneys of record were
made, and
it was confirmed that he was indeed employed by the second
respondent but at its Water Treatment Division as its Site Manager,
and thus was not in breach of the agreement.
11.6
The applicant nevertheless continued to further investigate the
apparent breach
by Thoabala and discovered as of 21 July 2017
that Thoabala was not employed as a Site Manager or in Water
Treatment
Division at the second respondent as it was originally
contended, but was acting in exact the same position that he held at
the
applicant, in the same geographical area and rendered the same
services to the second respondent, using the applicant’s
confidential
and proprietary information together with its trade
connections;
11.7
Thoabala was also responsible for putting together a proposal for one
of the
production lines at one of the applicant’s client (Coca
Cola Polokwane), after having done a significant amount of research
and pricing on their requirements. On 18 May 2017, it was
agreed with this client that the contract would be given to
the
applicant. This contract was however awarded to the second
respondent, who according to the applicant had no apparent interest
in the contract prior to Thoabala joining them;
11.8
The applicant holds the view that Thoabala is actively attempting to
transfer
and has successfully done so, its business that he had
managed to the second respondent; that he had used its confidential
information
and proposal to Coca Cola (Polokwane) containing pricing,
systems, proprietary solutions, together with his personal
relationships
with senior managers of this client to create an unfair
and unlawful competitive advantage that has already resulted in a
direct
and sizeable financial loss to it. Given these factors, the
applicant also holds the view that Thoabala is doing the same with
other clients, especially those that he had previously managed;
11.9
Of huge concern to the applicant however is that it is due to submit
a multi-million
Dollar tender to Coca Cola Beverages SA by
7 August 2017. Since Thoabala is aware of the applicant’s
pricing schedules,
services and products, it is anticipated that he
will use or disclose this knowledge to the unfair advantage of the
second respondent
as he did with Coca Cola Polokwane tender. The
applicant further contends that it came to its attention that the
second respondent
had also entered this particular tender, and that
there was a probability that Thoabala was assisting it, using its
proprietary
and confidential information;
11.10 In
essence, Thoabala is believed to be actively assisting the second
respondent to unlawfully
obtain business from its clients, in direct
contravention and breach of his confidentiality and restraint of
trade agreement;
11.11
The applicant further submitted that it had endeavoured to avoid
litigation and the costs entailed
as it believed that it was in the
best interests of all parties involved to attempt to resolve the
matter amicably. It was alleged
however that Thoabala’s blatant
mala fides
and misrepresentations left the applicant with no
choice
;
11.12
Thoabala’s dealings with the applicant’s clients were
investigated as allowed by
limited time frames and the applicant in
its dealings with Thoabala acted with the utmost
bona fides
,
seeking to ensure that it had an honest and wholistic understanding
of his conduct and sought not to unreasonably restrain him;
11.13 A
comprehensive understanding of the facts was obtained, and it became
apparent that the unlawful,
undesirable conduct of Thoabala was to be
censured, and that he could not be permitted to continue his
employment with the second
respondent;
11.14
Thoabala is aware of its confidential information and with every
passing day, and should he
be permitted to continue his employment at
the second respondent, there is an increasing risk that such
confidential information
will be disclosed, and that the latter would
benefit from his assistance in submitting the multi-million Rand
tender documents
from Coca Cola due on 7 August 2017;
11.15
Thoabala has already caused millions of Rands in revenue to its
business and such losses could
be multiplied tenfold should he
continue his employment with the second respondent.;
11.16
The potential or actual harm to the applicant’s business
increases, and would be impossible
to prevent or reverse should the
matter proceed on non-urgent basis, and the applicant will not be
able to obtain satisfactory
redress in the ordinary court.
[12] In
contending that the application was not urgent, it was submitted on
behalf of the respondents that;
12.1
The matter initially came before Prinsloo J on 3 August 2017,
and
at the time of the hearing, the applicant had not filed a
replying affidavit, which necessitated a postponement of the matter;
12.2
To the extent that the applicant’s main concern and the basis
of urgency
was that Thoabala was assisting the second respondent with
the preparation of the multi-million Dollar tender to Coca Cola
Beverages
SA which was due on 7 August 2017, as at the time
of the hearing of this matter, the date had passed and the tenders
had been submitted, which implied that urgency had fallen away as the
proverbial horse had bolted;
12.3
At the time of the hearing of this matter, Thoabala would have
already been
employed by the second respondent for more than three
months, having commenced on 9 May 2017;
12.4
If Thoabala was in possession of confidential information contended
for by
the applicant (which the latter denied), and if he wanted to
divulge such information to the second respondent or use the same,
he
could have done so by now, something to which the applicant had
conceded to;
12.5
The clients that had terminated their relationship with the applicant
are also
existing clients of the second respondent, or the second
respondent had tendered for or was awarded their business prior to
Thoabala
becoming employed by the second respondent;
12.6
The urgency alleged was self-created on consideration of the
following facts;
a)
The applicant allegedly received reports in late June 2017 that
various site managers
at the applicant’s clients had seen
Thoabala at their sites, and yet no confirmatory affidavits were
attached to Muller’s
founding affidavit to substantiate these
allegations;
b)
It is not known when the alleged reports came to Muller’s
attention, and the
applicant was at best aware for more than 5 –
6 weeks that Thoabala had taken up employment with the second
respondent before
it decided to launch this application on
26 July 2017.
The
legal principles and evaluation:
[13] The
principles applicable to urgent applications are well-established,
and for the purposes of this application, they need
to be restated in
view of what can be deemed to be a misconception as to how these
principles should be applicable in relation
to restraint of trade
disputes.
[14]
A determination of wh
ether
a matter deserves the urgent attention of this Court entails a
considerations of whether the reasons that make the matter
urgent
have been set out succinctly in the founding papers and secondly,
whether the applicant seeking relief will not obtain a
substantial
relief at a later stage. Thus, the basis for allowing parties to
dispense with the Rules of Court relating to time
periods is to
prevent the occasioning of an injustice and involves the balancing of
this consideration with that of the rights
of parties to a considered
opportunity to place their cases before the court
[1]
.
This approach is predicated upon the provisions of Rule 8 of the
Rules of this Court
[2]
which were interpreted in
Jiba
v Minister: Department of Justice and Constitutional Development and
others
[3]
as follows;
“
Rule
8 of the rules of this court requires a party seeking urgent relief
to set out the reasons for urgency, and the degree to which
the
ordinary applicable rules should be relaxed is dependent on the
degree of urgency. It is equally trite that an applicant is
not
entitled to rely on urgency that is self-created when seeking
deviation from the rules”.
[4]
[15]
It therefore follows from the
above that where the court is not satisfied that sufficient reasons
have been advanced for the matter
to be treated as one of urgency,
and where the Court is not satisfied that the applicant cannot obtain
substantive relief at a
later stage, the application ought to be
struck off from the roll on that ground alone
[5]
.
[16]
The applicant’s approach
in this case in regard to the issue of urgency was that the
enforcement of confidentiality and restraint
undertakings is a matter
that should be treated as inherently urgent, and that what was
required was for it to prove that Thoabala
is in breach. It was
further submitted on its behalf that it did not matter how long the
respondents had been in breach, and that
what mattered was when the
applicant discovered that there was a breach. Mr. Donaldson for the
applicant further submitted that
it was not required of the applicant
to present a substantial explanation as to the reason the matter
should be accorded urgency.
There are obvious fundamental problems
with this approach, which in my view is either a misinterpretation or
misunderstanding of
the acceptance by Davis J in
Mozart
Ice Cream Classic Franchises (Pty) Ltd v Davidoff and Another
[6]
that
breaches of restraint of trade have an inherent quality of
urgency.
[7]
[17]
One cannot
quarrel with the conclusion that there is indeed inherent threat and
prejudice to an employer whose ex-employee flagrantly
fails to comply
with his or her confidentiality and restraint of trade undertakings,
and particularly one that immediately joins
a competitor. At the same
time however, I did not understand the import of
Mozart
Ice Cream
to be an erosion of the requirements of Rule 8 of this Court, read
together with Clause 12 of the Practice Manual of this Court
[8]
,
or worst still, to imply that these disputes should enjoy special
privileges in this or any other Court. To hold otherwise would
lead
to absurdity and unmitigated abuse of court processes, in that any
party aggrieved by alleged non-compliance with restraint
provisions
may fold its arms and approach a Court at its leisure, and long after
the alleged breach, to seek urgent intervention.
In such
circumstances obviously, any urgency claimed will be regarded as
self-created. The Court should therefore refuse to assist
an
applicant who approaches it for urgent relief at its leisure and then
claim that it did not matter how long it had known of
the alleged
breach
[9]
.
[18]
It
is my view that even if breaches of restraint of trade may have
inherent quality of urgency, these disputes cannot by mere virtue
of
that quality, be treated any differently from any other disputes that
randomly come before this Court on an urgent basis. Thus,
for
example, an employer faced with the prospects of an unprotected
strike action is entitled to approach this court on an urgent
basis,
in the same way as is a Union threatened with a mass dismissal of its
members flowing from participation in a protected
strike. There can
be no doubt that these disputes in view of the consequences that flow
from the threat or actual conduct in question,
also have an element
of inherent urgency about them.
[19]
In a
nutshell therefore, there is nothing inherently special or unique
about restraint of trade disputes that makes them deserve
more urgent
attention from this Court than other disputes. To hold otherwise
would equally be contrary to the tenets of section
9 (1)
[10]
of the Constitution of the Republic
[11]
,
read together with section 34
[12]
.
Thus, all disputes that come before the Court on an urgent basis
should be treated equally, without giving preference based on
their
nature, with the only distinguishing factor being whether the
requirements in Rule 8 have been met.
[20]
To summarize
then, parties alleging breaches of restraint of trade agreements are
not indemnified from satisfying the requirements
in Rule 8.
Thus,
a mere
contention that the enforcement of restraint of trade is inherently
urgent and therefore must be treated as such by this
court without
any further consideration cannot by all accounts be sustainable. The
fact that these disputes may have an inherent
quality of urgency
cannot be equated to a free pass to urgent relief on the already
over-burdened urgent roll in this court.
Like all other urgent
matters, more than a mere allegation that a matter is urgent is
required
[13]
.
This therefore implies
inter
alia
that
the
Court
must be placed in a position where it must appreciate that indeed a
matter is urgent, and also that an applicant in the face
of a threat
to it or its interests had acted with the necessary haste to mitigate
the effects of that threat.
[21]
Applying the above principles to the facts of this case, it appears
that the high-water mark of the applicant’s case
in seeking
urgency was the concern surrounding the multi-million Dollar tender
in respect of Coca Cola Beverages SA that was due
for submission on
7 August 2017.
[22] It
is accepted that the applicant launched this application on
27 July 2017, and set the matter down for a hearing
on
3 August 2017. On that date however, a postponement was
sought on the basis that the applicant wanted a right of reply.
The
matter was postponed to 15 August 2017 and there is no
explanation as to the reason the applicant had agreed to that
date in
view of the alleged urgency of the matter, particularly in respect of
the Coca Cola tender. As correctly pointed out on
behalf of the
respondent, as at 15 August 2017 when the matter was heard,
the submission of the tender on 7 August 2017
had come and
gone, thus eroding any urgency that may have been claimed.
[23] It
nonetheless gets worse for the applicant in view of the date on which
Thoabala had joined the second respondent. As at the
launching of
this application, Thoabala had been in the employ of the second
respondent since 9 May 2017. On the applicant’s
own
version, in the last week of Thoabala’s employment with it, it
had suspicions that he might have designs to breach his
restraint of
trade undertakings. Nothing happened to him other than a warning and
a threat that the undertakings would be enforced.
[24]
Again, on the applicant’s own version, in ‘late
June 2017’ it had received reports that Thoabala was
seen
at the applicant’s clients’ sites. There are obvious
problems with these averments in view of the fact that it
is not
known exactly in June 2017 such reports were received, who or
what the source of these reports was, or what exactly
it is that
Thoabala had done at the clients’ sites to raise any
suspicions. Even if the applicant had cause to be suspicious,
there
is no indication that any urgent steps were taken to deal with the
perceived threats to its business interests.
[25] The
applicant alleged that ‘further investigation’ were done
but again, there is no particularity in this regard
as to when and by
whom were these investigations conducted, or when it was discovered
that Thoabala was indeed employed by the
second respondent, and any
steps taken in that regard. However, notwithstanding the alleged
investigations, and it being apparent
to it that Thoabala was
employed by the second respondent, the applicant upon approaching its
labour consultants then went on to
‘engage’ with
Thoabala’s attorneys of record, and again, decided to ‘further
investigate’ the apparent
breach by him.
[26] It
is not uncommon for parties to allege that attempts were made to
engage with the other party in order to resolve a dispute,
whether
real or perceived, before approaching the Court. Whilst it is
accepted that parties would or should engage each other prior
to
approaching the Court, there is a limit in regard to the level
and extent of that engagement, particularly where urgency
is claimed.
[27] It
is my view that where the applicant as in this case had reason to
believe that Thoabala was in breach of the restraint undertakings,
and further where there was reason to believe that he might not have
been forthright as to the identity of his new employer or
the tasks
he would be performing, little can be achieved with any further
‘engagements ‘ or ‘investigations,
once it is
apparent that interests are being threatened, and it would be
incumbent upon the applicant under the circumstances to
take
immediate steps to deal with the threats to its interests. Sadly, the
applicant was lacking in this regard. To further illustrate
the
point, it is not indicated in the papers as to what had transpired
between 28 June 2017 when the applicant allegedly
approached its labour consultants and 21 July when it discovered
inter alia
, that Thoabala was actually employed by the second
respondent in the exact same position that he fulfilled at it.
[28] In
consideration of these factors, inclusive of the fact that as at the
hearing of this matter Thoabala would have been in
the employ of the
second respondent for just over three months, I am satisfied that the
urgency claimed in this case is clearly
self-created, and this is
even moreso based on the applicant’s assertions that it did not
matter how long the breach had
taken place, or that it was not
obliged to proffer a substantial explanation for its dilatoriness. Of
course it matters how long
the breach went on in that the alleged
breach is the very essence of this urgent application. Furthermore,
an applicant is obliged
to place substantive reasons before the Court
as to why its matter deserves urgent attention.
[29]
In circumstances where the
applicant was aware as ‘early June 2017’ that
Thoabala was in breach of his restraint
and confidentiality taking,
and did nothing other than to ‘further investigate’ the
matter or consult with its labour
consultants, or ‘engage’
with Thoabala’s attorneys of record, there is no basis for this
court to intervene,
as the
institution
of the proceedings, should take place as soon as reasonably possible
after the cause thereof has arisen, and a party
must not be dilatory
in bringing the application and must show that its interests warrant
an urgent hearing
[14]
.
[30]
The
delay of the applicant in this case since it became aware of
Thoabala’s movements after his resignation and the time it
took
to approach the court is about seven weeks, which delay is of a
serious nature. No satisfactory explanation was proffered
in this
regard and the only conclusion to be made is that the delay was due
to culpable remissness on the part of the applicant.
In
the light of these factors, I am further not satisfied that the
applicant has demonstrated that it cannot obtain substantive
relief
in the normal course, and fairness therefore dictates that this
matter ought to be struck from the roll.
Costs:
[31]
This
Court is obliged, in accordance with the provisions of section 162 of
the LRA to have regard to the requirements of law and
fairness in
awarding costs. It was correctly pointed out on behalf of the
respondents that to the extent that the applicant did
not meet the
requirements of Rule 8, and further in view of the relief sought and
belated nature of this application, this constituted
an abuse of the
Court’s process which should be frowned upon. To this end, it
is concluded that the applicant should be burdened
with the costs of
this application, together with the wasted costs occasioned by the
postponement on 3 August 2017.
Order:
[32]
Accordingly, the following order is made;
1.
The applicant’s application is struck
off the roll on account of lack of urgency.
2.
The applicant is ordered to pay to the
costs of this application, together with wasted costs occasioned by
the postponement on 3 August 2017.
_________________
E. Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:
Adv. Q. Donaldson
Instructed
by:
GP Prinsloo Attorneys
For the First and Second
Respondents:
Adv. L Malan
Instructed
by:
Suren Moodley INC
[1]
See
National
Police Services Union v National Commissioner of the National Police
Services and Others
(1999) 20 ILJ 2408 (LC
);
Commissioner For the South African Revenue Services v Hawker Air
Services (Pty) Ltd and Another
Case
no: 379/2005 at para 9 and
Vermaak
v Taung Local Municipality
(JR315/13)
[2013] ZALCJHB 43 (12 March 2013)
[2]
Which
reads;
(1)
“
A party that applies for
urgent relief must file an application that complies with the
requirements of rules 7(1), 7(2), 7(3)
and, if applicable, 7(7).
(2)
The affidavit in support of the
application must also contain-
(a) the reasons for urgency and why
urgent relief is necessary;
(b) the reasons why the requirements
of the rules were not complied with, if that is the case; AND
(c) if a party brings an application
in a shorter period than that provided for in terms of section 68(2)
of the Act, the party
must provide reasons why a shorter period of
notice should be permitted”.
[3]
(2010) 31
ILJ 112 (LC)
[4]
At para 18
[5]
See
Commissioner
For the South African Revenue Services v Hawker Air Services (Pty)
Ltd and Another
Case
no: 379/2005 at para 9, where it was held that:
“
Urgency
is a reason that may justify deviation from the times and forms the
rules prescribe. It relates to form, not substance,
and is not a
prerequisite to a claim for substantive relief. Where an application
is brought on the basis of urgency, the rules
of court permit a
court (or a judge in chambers) to dispense with the forms and
service usually required, and to dispose of it
‘as to it seems
meet’ (Rule 6(12) (a)). This in effect permits an urgent
applicant, subject to the court’s
control, to forge its own
rules (See Republikeinses Publikasies (Edms) Bpk v Afrikaanse Pers
Publikasies (Edms) Bpk 1972(1) SA
773 (A) 782A-783H) which must ‘as
far as practicable be in accordance with’ the rules). Where
the application lacks
the requisite element or degree of urgency,
the court can for that reason decline to exercise its powers under
Rule 6(12) (a).
The matter is then not properly on the court’s
roll, and it declines to hear it. The appropriate order is generally
to
strike the application from the roll. This enables the applicant
to set the matter down again, on proper notice and compliance
[6]
2009 (3)
SA 78
(C)
at 88J
[7]
See also
ARB
Electrical Wholesalers (Pty) Ltd v Grove and Others
(C335/14)
[2014] ZALCCT 31 (3 June 2014) at para 20
[8]
In
particular Clause 12.5 which reads:
‘
The
above requirements are additional to the applicant’s
obligation to set out explicitly the circumstances which render
the
matter urgent. In this regard, it is emphasised that while an
application may be urgent, it may not be sufficiently urgent
to be
heard at the time selected by the applicant.’
[9]
See
National
Police Services Union & Others v National Negotiating Forum &
Others
(1999) 20 ILJ 1081 (LC) at 1092 paragraph 39, where it was held
that;
“
The
latitude extended to parties to dispense with the rules of this
court in circumstances of urgency is an integral part of a
balance
that the rules attempt to strike between time-limits that afford
parties a considered opportunity to place their respective
cases
before the court and a recognition that in some instances, the
application of the prescribed time-limits or any time-limits
at all,
might occasion injustice. For that reason, rule 8 permits a
departure from the provisions of rule 7, which would otherwise
govern an application such as this. But this exception to the norm
should not be available to parties who are dilatory to the
point
where their very inactivity is the cause of the harm on which they
rely to seek relief in this court….”
[10]
Which
reads:
‘
Equality
Everyone is equal before the law and
has the right to equal protection and benefit of the law.’
[11]
Act 108 of
1996
[12]
Which
reads:
‘
Access
to courts
Everyone has the right to have any
dispute that can be resolved by the application of law decided in a
fair public hearing before
a court or, where appropriate, another
independent and impartial tribunal or forum.’
[13]
See
Moyo
& Others v Administrator of the Transvaal & Another
(1988)
9 ILJ 372 (W) at 387I:
“
An
applicant who seeks relief by way of notice of motion should put all
the facts, in as much detail as possible, before the Court.
The mere
fact that an application is urgent and urgent relief is sought does
not relieve an application of this duty.”
[14]
See
Twentieth
Century Fox Film Corporation and Another v Anthony Black Films (Pty)
Ltd
1982(3)
SA 582(W) at 586 G. See also
Schweizer
Reneke Vleis Mkpy (Edms) Bpk v Die Minister van Landbou en Andere
1971(1)
PH F11 (T)at F11-12