Recently, Thomson Wilks successfully launched an urgent ex parte application in the High Court and a rule nisi court order was granted in our client’s favour. Basic legal terms such as ex parte and rule nisi, as well as what constitutes an “urgent application”, can be confusing for new clients and laymen.
The audi alteram partem principle is an important legal principle which exists in our law. This translates to “let the other side be heard.” In accordance with this principle, a court should never make an order against a person unless that person has received proper notice of the legal relief sought against him and he has been given an opportunity to defend him himself. An “ex parte” application is a departure from this rule and is brought before a court of law without any notice given to the opposing party.
These types of applications can only be brought in exceptional circumstances where compelling reasons exist why notice cannot be given to the party who the application is being brought against. They are also brought in situations where there will be no interested party in the relief being sought.
For example, one would bring an ex parte application when asking a court to admit him or her as an attorney or where one would need a search and seize order for evidence (known as an Anton Pillar Order) and there is a real risk that such evidence would be removed or destroyed by the other party if the application was brought to their attention.
In urgent applications the applicant does not follow the normal court processes and time periods because they require urgent redress. At the court hearing, the applicant will have to convince the court that the application is urgent, and the court will grant them condonation (or permission) for deviation from the court rules. The uniform rules of court in Rule 6(12) contain the regulatory framework for bringing an urgent application.
In the case of East Rock Trading, the court succinctly set out the test for urgency. It was provided that "the procedure set out in rule 6(12) is not there for taking. An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant must state the reasons why he claims that he cannot be afforded substantial redress at a hearing in due course.”.
Examples of appropriate circumstances to launch an urgent application would include if an applicant wanted to enforce a restraint of trade against a former employee who joined the employ of a competitor or if a parent of child wanted to stop the other parent from removing the child from the country.
A rule nisi is an interim or temporary order granted by a court in absence of the respondent (ex parte). The person against whom the order is made is then given the opportunity, once the temporary order has been granted, to return on a date determined by the court to give evidence and to argue why that temporary order should not be made final.
In other words, a rule nisi is a provisional court order. If another person's interests stand to be affected by an order in an ex parte application, the court will not grant a final order without a return date which gives the respondent the opportunity to present a defence. After the order has been provisionally granted, only then is it then served on the respondent. The respondent can then deliver an answering affidavit stating his case. The audi alteram partem rule is therefore complied with by affording the affected party the opportunity to state a case on the return day.
As mentioned previously, Thomson Wilks was recently successful in launching an urgent ex parte application and a rule nisi order was granted by the court. The applicant in this matter had a valuable asset in the unlawful possession of the respondent. We sought an order directing the sheriff to judicially attach and remove the asset from the respondent. There was a real risk that the respondent would dispose of the asset if it was made aware of the application being brought against it. A rule nisi order was granted, and the respondent has now been given an opportunity to demonstrate to the court why its possession of the asset should be restored.
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08 March 2023