Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's Furniture Manufacturers)

• Jurisdiction: South Africa
• Judge: Coetzee J
• Judgment Date: 14 December 1976
• Citation: 1977 (4) SA 135 (W)
• Hearing Date: 13 December 1976
• Court: Witwatersrand Local Division

Coetzee, J.:

Undoubtedly the most abused Rule in this Division is Rule 6 (12) which reads as follows:

"12 (a)

In urgent applications the court or a judge may C dispense with the forms and service provided for in these rules and may dispose of such matter at such time and place and in such manner and in accordance with such procedure (which shall as far as practicable be in terms of these rules) as to it seems meet.

(b)

In every affidavit or petition filed in support of the application under para. (a) of this sub-rule, the applicant shall set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course".

D Far too many attorneys and advocates treat the phrase "which shall as far as practicable be in terms of these rules", in sub-rule (a) simply pro non scripto. That this phrase deserves emphasis is apparent also from the judgment of RUMPFF, J.A. (as E he then was), in Republikeinse Publikasies (Edms.) Bpk. v Afrikaanse Pers Publikasies (Edms.) Bpk., 1972 (1) SA 773 (AD) at p. 782B. Once an application is believed to contain some element of urgency, they seem to ignore (1) the general scheme for presentation of applications as provided for in Rule 6; (2) the fact that the Motion Court sits on Tuesdays through F to Fridays; (3) that, for matters to be on this roll on any particular Tuesday, the papers must be filed with the Registrar by 12.00 noon on the preceding Thursday; (4) that the time of day at which the Court commences its daily sittings is 10.00 a.m. and that, when it has adjourned for the day, the next sitting commences on the next day at 10.00 a.m.

These practitioners then feel at large to select any day of the G week and any time of the day (or night) to demand a hearing. This is quite intolerable and is calculated to reduce the good order which is necessary for the dignified functioning of the Courts to shambles. Frequently one reminds counsel of certain basic matters, which I shall detail presently, only to be met with the answer that they and their attorneys are simply H following practices which have arisen in the course of time. I am not convinced that this is so. I do not think that the majority of the members of the Bar or Side Bar follow such practices as I shall presently show with reference to the motion roll presently before Court.

For the sake of clarity I am going to set forth the important aspects of "urgency". In doing so I shall not deal with those ex parte applications which fall under Rule 6 (4). Urgency involves mainly the abridgement of times prescribed by the Rules and, secondarily, the departure from established filing and sitting times of the Court. The following factors

Coetzee J

must be borne in mind. They are stated thus, in ascending order of urgency:

1.

The question is whether there must be a departure at all from the times prescribed in Rule 6 (5) (b). Usually this involves a departure from the time of A seven days which must elapse from the date of service of the papers until the stated day for hearing. Once that is so, this requirement may be ignored and the application may be set down for hearing on the first available motion day but regard must still be had to the necessity of filing the papers with the Registrar by the preceding Thursday so that it can come onto the following week's motion roll...