|The applicants brought an urgent application seeking urgent interdictory relief, pending the determination of Part B, which included final interdictory relief, declaratory orders, declarations of delinquency and an order removing the first and second respondent as directors of Prepaid 24 (Pty) Ltd.
In March 2016, the applicants, in the name of Handmade Connections, entered into a Service Level Agreement (“SLA”) with Prepaid 24. On 20 November 2018, the board of directors of Prepaid 24 took a resolution that Prepaid 24 must give four months’ notice to terminate the SLA. The applicants were present at this meeting, but excluded from voting as a result of them having a financial interest in the matter. On 30 November 2018, Prepaid 24 gave written notice to the applicants and Handmade Connections that the SLA will terminate in four months.
On 20 February 2019, the applicants demanded that the notice of termination be disregarded, which was refused by the respondents. On 8 March 2019, the applicants launched the urgent application. On 18 March 2019, it was agreed to extend the notice period for one month to 30 April 2019 and to remove the matter form the roll to allow for settlement negotiations, and if no settlement was forthcoming by 5 April 2019, to allow for an orderly exchange of affidavits.
The matter was not settled, and the applicants argued that Prepaid 24’s 20 November 2018 resolution was not properly adopted. The respondents argued that the alleged urgency of the matter was self-created and that there was non-compliance with the provisions of Uniform Rule of Court 6(12), constituting an abuse of court process.
|In determining whether the applicants complied with Rule 6(12), in that “…the applicant shall set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he would not be afforded substantial redress at a hearing in due course.”, the court considered the Supreme Court of Appeal’s decision in the case of NCSCA v Openshaw. The case outlined the importance of striking out any matter which is not urgent, and that an applicant must act with maximum expedition in launching and prosecuting an application.
The court held that it should have become clear to the applicants that Prepaid 24 would proceed with terminating the SLA when notice was addressed on 30 November 2018. The applicants only raised objection to the cancellation two and a half months later. The applicants argued that the ongoing settlement negotiations justified the delay in bringing the urgent application. The court held that such averment does not explain the failure by the applicants to take action between 30 November 2018 and 20 February 2019.
The court found that in the absence of a satisfactory explanation, it was incumbent on the applicants to challenge the cancellation of the SLA as soon notice was served. The court held that the urgency of the application was self-created and the threshold prescribed in Rule 6(12)(b) had not been passed. Accordingly, the urgent application was struck from the roll and costs awarded in favour of the respondents.
This case considered Uniform Rule 6(12)(b) and the prescribed threshold that an applicant must meet for a matter to be considered urgent. Where an applicant has not provided a satisfactory explanation for a delay in bringing the application, the court must consider the urgency self-created, and accordingly strike the application from the roll.
Written by Wesley Pons and Jenna Bentel