Judge highlights flaws in urgent application process against Reserve Bank

The principle that the other side must also be heard is sacrosanct in the South African legal system, a judge said in criticising the conduct of an applicant who served the notice of an urgent application on the SA Reserve Bank after hours, on the eve of a public holiday.

The urgent application only came to the attention of the Reserve Bank days later, after an order was already issued against it behind its back.

Not knowing about the notice of the looming application, as it was served on a security guard on the premises, the Reserve Bank never showed up in court to oppose the application.

It now turned to the Gauteng High Court, Johannesburg, where it successfully obtained an order to overturn the order against it.

Judge Roland Sutherland remarked that the only times that a court will consider a matter behind a litigant's back are in exceptional circumstances.

“The phrase 'exceptional circumstances' has, regrettably, through overuse and the habits of hyperbole, lost much of its impact. To do that phrase justice, it must mean 'very rarely',” he said.

YWBN Mutual Bank obtained an order on May 7 this year, in which the Reserve Bank was told to register a name change of the YWBN Mutual Bank to eNL Mutual Bank and do so within 48 hours of the service of the order.

The Reserve Bank is the statutory authority to confer and approve the name of a bank. On Wednesday, April 30, the urgent name change application was issued. The sheriff served it at 16:43 to the security guard at the Reserve Bank’s premises.

The notice of motion called on the Reserve Bank to file an answer the next day - within 24 hours of service - and further stated that the case would be enrolled on May 6.

Judge Sutherland noted that Wednesday, April 30, was the day before a public holiday, Workers' Day. Friday was therefore a trapped “working” day between the public holiday and the weekend, rendering the period May 1 to May 4 a de facto long weekend for many people.

“Why was it necessary to serve outside of business hours? Was it not foreseeable that the documents would not reach the desk of a responsible official before Monday?” the judge questioned.

He said the expectation that an answer would be forthcoming within 24 hours on a public holiday was “absurd”.

“This was a service on an organ of state, a category of litigant whose officials show no evidence of being burdened by a Calvinistic work ethic,” the judge remarked.

The application only came to the attention of a person who knew what to do on May 6. The security guard was clueless as to the urgency and apparently denied that the urgency of the matter had been explained to him by the sheriff.

A telephone call at the time between the guard and an official of the Reserve Bank about the arrival of the documents was afflicted by connectivity problems and confusion as to what should have happened.

“What this saga of mishaps illustrates is that it is unprofessional to take a pedestrian approach to the service of urgent applications. It is not part of our legal procedure to move by stealth to court against an adversary,” the judge said in overturning the initial order against the Reserve Bank.

zelda.venter@inl.co.za