CIVIL PRACTICE – URGENT COUNTER-APPLICATION – AVERMENTS FOR URGENCY MUST BE CONTAINED IN AFFIDAVIT – EXCEPTIONAL CIRCUMSTANCES REQUIRED FOR COURT TO DISREGARD ARBITRATION CLAUSE

CIVIL PRACTICE – URGENT COUNTER-APPLICATION – AVERMENTS FOR URGENCY MUST BE CONTAINED IN AFFIDAVIT – EXCEPTIONAL CIRCUMSTANCES REQUIRED FOR COURT TO DISREGARD ARBITRATION CLAUSE

The applicant and respondent were parties to a sub-lease agreement, in terms of which the applicant leased a mining quarry from the respondent, who leased it from a third party, TransNamib Holdings Ltd. The applicant brought an urgent application against the respondent seeking certain spoliatory relief, claiming that it had been unlawfully disposed of the leased property by the respondent. In turn, the respondent brought a counter-application – also on an urgent basis – against the applicant seeking, inter alia an order confirming cancellation of the agreement between the parties and an eviction order as a result of the applicant’s alleged breach of the agreement.

Prior to the hearing of the applications, the applicant abandoned its urgent application. The respondent, however, persisted with its urgent application. The applicant argued that the respondent had not made a case for urgency as required in rule 73 of the Rules of Court. At the time of hearing the application, the dispute had already been referred to arbitration pursuant to the mandatory arbitration clause in the agreement between the parties.

The court restated the requirements of rule 73(4) namely that a party bringing an application on an urgent basis must set out explicitly the circumstances which he or she avers render the matter urgent and the reasons why he or she claims he or she could not be afforded substantial redress at a hearing in due course. Held that both these averments must be contained in the affidavit of the applicant before a matter can be considered on an urgent basis. This is then also the bridge to cross before the merit of any application will be considered.

The court found that the conduct complained about by the respondent had been coming for some time. Held that it is trite that a court has discretion to refer a matter to arbitration wherein the agreement between the parties makes provision for such. The respondent is unable to convince the court that there is any exceptional circumstance or compelling reasons which would cause the court not to give effect to the arbitration clause in the contract and let the matter be determined by the arbitrator as agreed.

In the result, the counter-application was accordingly struck due to lack of urgency.

A – Team Stone Crushers CC v Aris Stone Products CC NAHCMD 12 September 2022