Introduction
The use of urgent chamber applications in the High Court is common in litigation. Such applications are made where an applicant considers the relief sought to be urgent. In such cases the Court first decides whether the matter is urgent before considering the merits, also called the substantive issues.
In this article I wish to give some basic insights into urgent chamber applications. For this article I rely mostly on the High Court Rules, 2021 and a publicly available document which I came across during my research titled: PRESENTATION BY MRS JUSTICE GOWORA JCC AT THE JUDGES’ END OF FIRST TERM 2019 SYMPOSIUM. THE DISPOSAL OF URGENT CHAMBER APPLICATIONS – A DISCUSSION FOCUSSING ESPECIALLY ON THAT THE MATTER IS NOT URGENT. I will call it “the Presentation”.
High Court rules of 2021
Rule 60 of the High Court Rules, 2021 (“the Rules”) provide for chamber applications. Rule 60(1) thereof states that:
“A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form No. 25 duly completed and, except as is provided in subrule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies. Provided that, where a chamber application is to be served on an interested party, it shall be in Form No.23 with appropriate modifications”
Rule 60(6) states that:
“Where a chamber application is accompanied by a certificate from a legal practitioner in sub rule 4(b) to the effect that the matter is urgent, giving reasons for its urgency, the registrar shall immediately submit it to the judge, handling urgent applications who shall consider the papers forthwith”
According to rule 60(18) if the Judge considers the application not urgent he or she will strike it off the roll of urgent applications. Please note that at this stage the matter has not been heard on the merits. The Court has simply said the matter is not urgent. The according to rule 60(19) an urgent application that is struck off shall be referred to the roll of ordinary court applications and it shall not be necessary for the applicant to file a fresh application.
Whether or not a matter is urgent
An applicant, his or her legal practitioner, has to convince the Court that a matter is urgent. The Court considers certain factors explained hereunder.
Requirement for a certificate of urgency from a legal practitioner
The starting point is that there has to be a certificate from another lawyer to the effect that the matter is urgent, per rule 60(6). According to the said presentation, under the old rules, in the case Chidawu & Ors v Sha & Ors 2013, the Supreme Court held as follows:
“It follows that a certificate of urgency is the sine qua non for the placement of an urgent chamber application before a judge. In turn the Judge is required to consider the papers forthwith and has the discretion to hear the matter if he forms the opinion that the matter is urgent. In making a decision as to the urgency of the chamber application the judge is guided by the statements in the certificate by the legal practitioner as to its urgency in certifying the matter as urgent”.
Determining whether matter is urgent or not
There are many decided cases. In this article I cite some based on the said presentation. The presentation refers to the case of Kuvarega v Registrar General & Anor, 1998, considered the locus classicus, wherein CHATIKOBO J, stated that:
“What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if at the time the need act to arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. It necessarily follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the non-timeous action if there has been any delay”.
According to the presentation in Documents Support Centre P/L v Mapuvire 2006, Makarau JP (as she then was) said the following in relation to urgent chamber applications:
“….. urgent chamber applications are those where if the Courts fail to act, the applicants may well be within their rights to dismissively suggest to the Court that it should not bother to act subsequently as the position would have become irreversible and irreversibly so to the prejudice of the applicant”.
According to the said presentation, in the Kuvarega case Makarau JP (as she then was) stated her understanding of CHATIKOBO J as follows:
“I understand CHATIKOBO J in the above remarks to be saying that a matter is urgent if when the cause of action arises giving rise to the need to act the harm suffered or threatened must be redressed or arrested there and then for in waiting for the wheels of justice to grind at their ordinary pace, the aggrieved party would have irretrievably lost the right or legal interest that it seeks to protect and any approaches to Court thereafter on that cause of action will be academic and of no direct benefit to the applicant”.
In the said presentation the learned Judge opined that urgency is a matter of both time and harm. One cannot separate then two as shown in the Kuvarega case.
The document also refers to another case, Gwarada v Johnson & Ors, 2009 in which the Court stated that:
Urgency arises when an event occurs which requires contemporaneous resolution, the absence of which would cause extreme prejudice to the applicants. The existence of circumstances which may, in their very nature, be prejudicial to the applicant is not the only factor that a Court has to take into account, time being of the essence in the sense that the applicant must exhibit urgency in the manner in which he has reacted to the event or the threat, whatever it may be”.
Conclusion
Urgent chamber application are widely used in litigation. An applicant has to prove to the Court that the matter is urgent in terms of the law.
Disclaimer
This simplified article is for general information purposes only and does not constitute the writer’s professional advice.
Godknows (GK) Hofisi, LLB(UNISA), B.Acc(UZ), CA(Z), MBA (EBS, UK) is a practising commercial lawyer and conveyancer, chartered accountant, corporate rescue practitioner, registered tax accountant, consultant in deal structuring and business valuer. He is also a director with Investacare International (Private) Limited. He writes in his personal capacity. He can be contacted on +263 772 246 900 or gohofisi@gmail.com
