Lorraine Elizabeth Heyns and Kurt Louis Heyns v Believe Guta and Others

The applicants (Lorraine Elizabeth Heyns and Kurt Louis Heyns) brought an urgent court application seeking orders declaring certain court applications instituted under various case numbers to be null and void ab initio. They sought a declaration that Balwearie Holdings (Pvt) Ltd (Company Number 45/77) is the legitimate owner of a Certain Piece of Land Situate in the District of Hartley, called Remainder of Westhey of Sabonabon Estate measuring 97.0653 hectares held under Deed of Transfer Number 4110/92. They also sought a declaration that the first, second and twelfth respondents have no enforceable rights in the property, and that the first to eighteenth respondents acted in common purpose to illegally acquire title in the property. The application was opposed by numerous respondents who raised preliminary objections. Some of the cases in respect of which declarations of invalidity were sought dated back to 2020 and 2021, with others from 2022.

• Whether the court application was fatally defective for non-compliance with Rule 59 of the High Court Rules, 2021 by not being in the required Form 23
• Whether the matter qualified for urgent hearing
• The proper interpretation of Rule 59(6) and its proviso regarding abridgment of dies induciae (time periods) in urgent court applications
• The requirements for establishing urgency in court applications
• Whether costs on an attorney-client scale were warranted

1. The matter was struck off the roll of urgent matters. 2. Respondents were given ten days from the date of the order to file opposing papers on the merits. 3. Applicants were ordered to pay costs jointly and severally, the one paying the other to be absolved. 4. The objection that the application is invalid was dismissed.

1. A court application that substantially complies with Rule 59 and Form 23 of the High Court Rules 2021 is not fatally defective where omissions do not prejudice respondents and can be accounted for by gaps in the rules themselves. 2. Rule 59(6) permits the specification of a period shorter than ten days for filing opposing papers in urgent cases, subject to court agreement on good cause shown. 3. A matter is urgent if it cannot wait to be resolved through an ordinary court application, requiring both prompt action when the need arises and demonstration of irreparable harm that would render an ordinary application ineffective. 4. Urgency that stems from deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. 5. There is no requirement for a certificate of urgency in court applications sought to be dealt with urgently - such certificates are only required for chamber applications under Rule 60(4)(b) and Rule 60(6).

Zhou J made several obiter observations: 1. The certificate of urgency may have outlived its purpose and is merely a fertile ground for endless objections in limine, as the court can decide urgency by reference to the founding affidavit and circumstances without needing a legal practitioner's opinion. 2. There is a lacuna in the rules regarding the stage at which the court gives consent to shortened periods for filing opposing papers - a literal interpretation would absurdly require a court application to seek leave to truncate time periods before filing the main court application. 3. The practice of filing an urgent chamber application to seek urgent hearing of an ordinary court application, while not explicitly provided for even in the old rules, represents the court falling back on its inherent jurisdiction to control its own procedures and processes. 4. Form 23 is not a complete catalogue of the consequences that follow upon failure to file opposing papers timeously, as it does not warn respondents of all timelines and automatic bars prescribed by Rule 59. 5. A party seeking urgent relief is essentially seeking preferential treatment by jumping the queue of other matters waiting on the ordinary roll.

This case provides important guidance on the interpretation and application of the High Court Rules 2021, particularly Rule 59 governing court applications. It addresses a lacuna in the rules regarding the procedure for urgent court applications and the abridgment of dies induciae. The judgment clarifies that Form 23 need not be followed with absolute precision where there is substantial compliance and no prejudice results. The case also reinforces established principles on urgency, emphasizing that parties seeking urgent relief must act promptly when the need arises and demonstrate irreparable harm that cannot be remedied through ordinary procedures. The judgment comments critically on the utility of certificates of urgency, noting they may have outlived their purpose and merely provide grounds for endless preliminary objections. It also clarifies the distinction between "court" and "judge" under the Rules, noting that a judge in chambers is not "the court" for purposes of certain procedural requirements.