an affidavit filed in support of an application under subrule (1), the applicant must set ‘In 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.’ [8] Before examining closely the requirements of this subrule, it is opportune to observe a few issues regarding the applicants’ application. First, the applicants, in their notice of motion, have alleged that the application is in terms of rule 6 (12) of the rules of the High Court. It is now common cause that the said rule was repealed and has been renumbered to be rule 73 in the new rules of court. I should hasten to mention though that the relevant part of the rule referred to in this matter and which forms the pivot or axis on which this argument turns, has not been changed. The nomenclature by and large remains the same. I do however take note of the notorious fact that the applicants are unrepresented litigants who are unlettered in law and it would be an exercise in sterile and fastidious formalism to dismiss or refuse the application on no other grounds than that the wrong rule has been cited. The second respondent also did not support that drastic approach. [9] In the premises, I will consider the application as though the correct rule had been cited, considering in particular, as mentioned earlier, that the substance of the relevant language remains largely undisturbed notwithstanding the repeal. It only remains for me to remind and exhort litigants, including lay litigants that they should ensure that they bring applications or other proceedings in terms of the relevant rules of court or legislation, as the case may be. This is so because courts will not always be charitable and entertain applications brought in terms of laws that have either been amended or repealed. There may be cases where courts may not be able to come to the assistance of lay litigants in this regard. [10] Second, the document referred to in the applicants’ application as a of ‘Notice Intention’ is not provided for in the rules of court. It is in fact unnecessary. The relief sought from the court must be clearly and unambiguously stated in the notice of motion.
‘In an affidavit filed in support of an application under subrule (1), the applicant 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.’ [8] Before examining closely the requirements of this subrule, it is opportune to observe a few issues regarding the applicants’ application. First, the applicants, in their notice of motion, have alleged that the application is in terms of rule 6 (12) of the rules of the High Court. It is now common cause that the said rule was repealed and has been renumbered to be rule 73 in the new rules of court. I should hasten to mention though that the relevant part of the rule referred to in this matter and which forms the pivot or axis on which this argument turns, has not been changed. The nomenclature by and large remains the same. I do however take note of the notorious fact that the applicants are unrepresented litigants who are unlettered in law and it would be an exercise in sterile and fastidious formalism to dismiss or refuse the application on no other grounds than that the wrong rule has been cited. The second respondent also did not support that drastic approach. [9] In the premises, I will consider the application as though the correct rule had been cited, considering in particular, as mentioned earlier, that the substance of the relevant language remains largely undisturbed notwithstanding the repeal. It only remains for me to remind and exhort litigants, including lay litigants that they should ensure that they bring applications or other proceedings in terms of the relevant rules of court or legislation, as the case may be. This is so because courts will not always be charitable and entertain applications brought in terms of laws that have either been amended or repealed. There may be cases where courts may not be able to come to the assistance of lay litigants in this regard. [10] Second, the document referred to in the applicants’ application as a ‘Notice of Intention’ is not provided for in the rules of court. It is in fact unnecessary. The relief sought from the court must be clearly and unambiguously stated in the notice of motion.
Nghiimbwasha%20v%20Minister%20of%20Justice%20(A%2038-2015)%20[2015]%20NAHCMD%2067%20(20%20March%202015).docx