IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
In the matter between:
PHILEMON MABOTE BOIKANYO
and
KHANYISA MOGALE ATTORNEYS INC
KHANYISA ISABELLA MOGALE
Coram: Reddy J
Judgment reserved: 13 March 2026
CASE NO: 2026-049469
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
Delivered: This judgment was handed down electronically, circulated to the
parties ' representatives via email, uploaded to CaseLines, and released to SAFLII.
The date and time for the handing down of the judgment are deemed to be on 18
March 2026 at 16h00.
Urgency-Self-created urgency-Applicant aware of dispute regarding accounting
of trust funds and delivery of client file since March 2025. Inexplicable eight
month period of inactivity between referral to Legal Practice Council and
launching of application. Failure to act with necessary haste. Purpose of urgent
court not intended for dilatory litigants.
Procedure -Rule 6(12) of the Uniform Rules of Court-Jurisdictional
requirements- Requirement to explicitly set forth circumstances rendering matter
urgent and reasons why substantial redress cannot be afforded in due course
Failure to provide a granular and explicit timeline for the delay.
Substantial Redress - Alternative remedy - Dispute pending before the Legal
Practice Council Fee Assessment Committee -Specialized statutory process
specifically tailored for the dispute -Availability of substantial redress in due
course. Application struck from the roll with punitive costs.
JUDGMENT
REDDY J
Introduction
[ 1] What falls for consideration before this Court is an application brought
within the purview of Rule 6(12) of the Uniform Rules of Court ("the URC") by
the applicant. The applicant moves for an order compelling the respondents, a
firm of attorneys and its principal, to deliver a complete original client file and to
provide a full accounting and payment of trust funds allegedly held by the
respondents following a successful claim against the Road Accident Fund ("the
RAF"). The respondents oppose the application.
[2] The respondents claim in limine that the applicant has failed to satisfy the
jurisdictional requirements of Rule 6(12)(b) and that any urgency is entirely self-
created through a failure to act. Moreover, the respondents assert that the
applicant has access to substantial redress through a live statutory process.
Background Facts
[3] The genesis of this dispute dates back to 5 March 2025, when the RAF
confirmed that party-and-party costs related to the applicant's claim were
approved for payment. Thereafter, a dispute arose regarding the accounting of
these funds and the delivery of the file, which led the applicant to lodge a
complaint with the Legal Practice Council ("the LPC"). On 23 May 2025, an
Investigating Committee of the LPC considered the matter, and on 26 June 2025,
the LPC formally notified the applicant that the committee recommended the
matter be referred to a Fee Assessment Committee for a final determination
regarding the disputed fees.
[ 4] What stands out from this timeline is that following the notification in June
2025, it appears that the applicant entered into a deep legal hibernation period.
Put differently, for approximately eight months, between July 2025 and February
2026, the applicant took no further legal steps to escalate the matter or seek
judicial intervention. Notwithstanding the dispute having been ongoing for nearly
a year, the applicant only launched this urgent application on 4 March 2026.
Submissions by the Applicant
[5] The applicant posits that the matter is urgent because the continued
withholding of his file and funds causes him ongoing financial prejudice and
prevents him from finalizing his legal affairs. He avers that the respondents '
refusal to account for trust monies constitutes a continuous infringement of his
rights. He further claims that the forty-eight-hour ( 48) demand issued in early
March 2026, which was disregarded, compelled him to approach the urgent court.
Submissions by the Respondents
[ 6] The respondents argue that the urgency is entirely self-created through a
failure to act. The respondents submit that the applicant has been aware of the
dispute since early 2025 and chose to wait until March 2026 to approach this
Court. Additionally, the respondents contend that the pending Fee Assessment at
the LPC provides the applicant with a specialized and substantial remedy, and as
such, he has failed to meet the requirement of showing a lack of substantial
redress in due course.
Legal Principles
[7] Rule 6(12)(b) commands that an applicant must set forth explicitly the
circumstances which render the matter urgent and the reasons why substantial
redress cannot be afforded in due course. This jurisdictional qualification is the
gateway to urgent relief.
[8] Rule 6(12)(b) provides:
"In every affidavit filed in support of any application under paragraph (a) of this
subrule, the applicant must set forth explicitly the circumstances which it is
averred render the matter urgent and the reasons why the applicant claims that
applicant could not be afforded substantial redress at a hearing in due course."
[9] In Commissioner, South African Revenue Services v Hawker Air Services {Pty)
Ltd1, the court held that:
'Commissioner, South African Revenue Services v Hawker Air Services (Pty) Ltd para 9.
"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."
[10] That being so, it is peremptory that an applicant requiring urgent redress
make out a case for urgency in the founding affidavit. This aspect of our law is
enunciated in Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another t/a
Makins Furniture Manufacturers2, where the court held:
"The degree of relaxation should not be greater than the exigency of the case
demands ... Mere lip service to the requirements of Rule 6(12)(b) will not do and
an applicant must make out a case in the founding affidavit to justify the particular
extent of the departure from the norm, which is involved in the time and day for
which the matter be set down."
[ 11] Besides, urgency that is self-created through dilatoriness or an inexplicable
failure to act does not satisfy the requirements of the rule.3
Conclusion
[12] On a proper consideration , the applicant's cause of action is rendered
impotent on both qualifying criteria that form the fulcrum of the urgency test.
Firstly, the applicant has failed to account explicitly by setting out a full
chronology for the timeline between June 2025 and March 2026. The failure to
act by the applicant for nearly a year is a paradigmatic example of self-created
2 1977 (4) SA 135 (W) at 137F
3 Schweizer-Reneke Vleis v Die Minister van Landbou 1971 (1) PH Fl 1 (T)
urgency. The applicant failed to set out the timelines explicitly to justify why he
waited eight months after the LPC referral to launch these proceedings.
[13] Secondly, the fact that there is a pending matter before the LPC Fee
Assessment Committee indicates that the applicant has a live remedy to attain
substantial relief. The existence of this specialized statutory process confirms that
the applicant has alternative redress available. To have approached the urgent
court was premature; prudence required awaiting the finalization of the pending
process rather than circumventing it. A more circumspect approach would have
seen the applicant exhaust the existing remedies before attempting to invoke the
court's urgent jurisdiction.
[14] Against this backdrop, it would be remiss of me not to underscore the
object and purpose of the urgent Court. The urgent roll is a specialized platform
designed for matters which meet the two peremptory requirements that form the
tenets of Rule 6(12)(6). It is only then that the urgent court's jurisdiction is
engaged. It is not a springboard for dilatory litigants who have finally decided to
act after an inordinate delay, nor is it a mechanism for a preferential hearing. By
failing to act timeously and attempting to bypass the LPC process, the applicant
has abused the court process.
Costs
[ 15] Costs are at the discretion of the court, notwithstanding the parties
submissions in this regard. The respondents were required to file papers on
extremely short notice for a dispute that has been pending for a year. Given the
self-created nature of the urgency and the failure to disclose an explicit timeline,
a punitive costs order is warranted to reflect the Court's displeasure at the misuse
of the urgent roll.
Order
[16] In the premises, I make the following order:
1. The application is struck from the roll for lack of urgency.
2. The applicant is ordered to pay the respondents' costs on an attorney and
client scale.
AREDDY
JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
Appearances:
For the Applicant : Mr Makgale
Instructed by: Makgale Ngwasheng Attorneys
Mahikeng
For the Respondents : Advocate Shole
Instructed by: Khanyisa Mogale Attorneys
C/0 Mokaa Attorneys