20/08/2021

Study Unit 7.3

Interdicts

Note: Because the topic of interdicts is covered in depth in the module on

civil procedure, this section contains a very broad overview only.

Example
Piet and Sandi are neighbours. Their properties are separated by
a high brick wall built by Piet on his property. One day Piet
notices a large crack in the wall and he discovers that the recent
growth of one of the trees in Sandi’s garden is the cause of the
crack. The tree was planted quite close to the boundary wall.
When informed of this, Sandi says that she is not prepared to
trim the tree or cut back the roots.

Piet wants to bring an action to force Sandi to trim the tree and
he also wants to claim damages for the expense of having his
wall repaired.

Which remedies, if any, does he have?

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Interdicts

• An interdict is a court order by which a plaintiff can -

• Prevent conduct that causes harm OR
• Prevent a continuation of harmful conduct that has already started.

• Distinguish between –
• Interdict - preventative function and
• The three delictual actions – aimed at compensating plaintiff for
harm suffered due to wrongdoer’s conduct
• Cannot recover compensation from wrongdoer by means of
interdict
• Back to example: Piet will be able to –
• Bring an application for an interdict ordering Sandi to trim back the tree
AND
• Bring a claim in delict against Sandi for damages – patrimonial loss
due to repairing the wall

Interdicts
• Terms:
• Person who brings application for interdict = referred to as
“applicant” (would usually be “plaintiff” in delictual claim)
• Person against whom interdict is sought = “respondent” (usually
defendant in delictual claim)
• There are two types of interdicts:
1. A prohibitory interdict requires the wrongdoer to desist/
abstain from wrongful conduct or from continuing wrongful
conduct.
Example: a plaintiff can obtain a prohibitory interdict against a
newspaper to stop it from printing a defamatory article about
him.
2. A mandatory interdict requires a positive action from the
wrongdoer
Example: the wrongdoer can be ordered to publish a correction
of an inaccurate article which is defamatory towards the plaintiff

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Interdicts

• Also distinguish between –

• Temporary interdict
• Final interdict

• Final interdict: permanent ban placed on threatened conduct

• Temporary interdict: prohibits threatened conduct pending
outcome of another hearing where court will decide whether
temporary interdict should be made final (similar to
protection order under Domestic Violence Act 116 of 1998)
• See example on p. 525 of Loubser & Midgley

Requirements for obtaining an interdict

 A clear right
• Applicant must prove that the respondent’s conduct
threatens to infringe or is actually infringing a so-called
“clear right”.
• This “clear right” involves a recognised subjective right
• In absence of such a right, interdict can also relate to non-
compliance with legal duty.
• Links to element of wrongfulness

 An actual or threatened infringement of a right

• If the applicant/plaintiff can show a clear right, then an
interdict will only be granted if the harm to the applicant is
likely to be irreparable
• Important: “threatened infringement” means there must be a
reasonable apprehension/ concern that harm is immediately
threatening – not vague possibility in future

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Requirements for obtaining an interdict

 No other suitable remedy (to prevent wrongful

conduct) available to the applicant

• Note: applicant does not have to prove fault (intent or

negligence) on the part of respondent
• Going back to earlier example: Piet does not have to show
that -
• Sandi acted with intent to damage his wall when she planted
tree close to wall OR
• Sandi was negligent in allowing the roots of the tree to damage
the wall

RM v RB 2015 1 SA 270 (KZP)

• Claim based on defamation (infringement of reputation)

• Application for interdict ordering the respondent to -
• Remove messages from page
• Refrain from posting further defamatory postings about
applicant on Facebook
• Refrain from publishing defamatory statements about applicant
in any other way

• Court:
• Defamatory statements are not always actionable (defendant
may rely on number of defences, including truth and public
interest)
• Prohibiting respondent from any further defamatory postings
about applicant on Facebook = unduly limiting respondent’s
right to freedom of expression

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RM v RB 2015 1 SA 270 (KZP)

• Court: (continued)
• BUT: if respondent does make defamatory statements about
applicant without a defence, applicant will have remedies
• Applicant’s remedies will be to bring application for another
interdict or bring delictual claims for satisfaction based on
infringement of reputation

Please go back to the Learning Outcomes for

Study Unit 7.3 in the MOD to ensure
that you can complete them.

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