INTERDICTS

FINAL INTERDICT

Interdict is final if the court order is based upon a final determination of the rights of

the parties.

The normal way is to apply for it by way of action, but it may be granted on application

if no factual dispute exists.

Delay in bringing the application them, is not a ground to refuse.

INTERIM INTERDICT

This is a court order preserving or restoring the status quo pending the final

determination of the rights of the parties. It does not involve or affect the final

determination of the rights.

Whether an interdict is final or interim depends on the substance and not on its form.

If the relief sought is interim in form but final in substance, the requirements for a final

interdict must be met and balance of convenience is irrelevant.

If applicant has delayed long in applying for it, it may be refused.

It is always applied for by way of application.

The relief sought can be:

1. For an interim interdict pending the outcome of an action instituted or being instituted

2. For an interim interdict pending the final determination of the application

3. For an interim interdict as an adjunct to a rule nisi calling upon the respondent to

show cause upon the return day why the interim interdict should not remain in force

pending the outcome of the main application.(This is applied for in urgent matters.

Cannot be done against government minister official etc unless 72 hours notice given)

REQUISITES FOR A FINAL INTERDICT

1.Clear right

2.An injury actually committed or reasonably apprehended

3.The absence of similar protection by any other remedy

(Irreparable injury is not a condition for a final interdict)

CLEAR RIGHT

Whether applicant has a right is a matter of substantive law and whether it is clear is

a matter of evidence.

Applicant must therefor prove on a balance of probabilities facts which in terms of

substantive law will give him a right.

INJURY
Means infringement of the right which has been established and resultant prejudice.

Prejudice does not mean actual damage and it is sufficient to establish potential

prejudice.

But the absence of any possible prejudice will result in its refusal. In fact unless he

shows that he is suffering or will suffer some injury prejudice damage or invasion of

right peculiar to himself and over and above that sustained by members of the public

in general he has no locus standi in interdict proceedings.

The injury must be a continuing one. The court will not grant an interdict restraining an

act already committed.

A reasonable apprehension of injury is one which a reasonable man might entertain

on being faced with the facts and thus applicant need not establish on a balance of

probabilities that injury will follow.

NO ALTERNATIVE REMEDY

The alternative remedy must be adequate in the circumstances, be ordinary and

reasonable, be a legal remedy, grant similar protection.

In general interdict will not be granted if applicant can get adequate damages.
In exercising its discretion between and interdict and action for damages court will look

at the following:

(a) The action for damages must provide adequate compensation

(b) The injury must be one which is capable of being estimated in money

(c) The action for damages must not compel the applicant to part with his rights

Mere inconvenience to respondent is irrelevant.

Even if damages can be awarded the court will generally grant it if:

(a) respondent is a man of straw

(b) the injury is a continuing violation of applicant's rights

(c) the damages will be difficult of assessment.

DISCRETION

The discretion of a court to refuse a final interdict is very limited when the above three

requisites are present and depends exclusively upon the question whether an

alternative remedy is adequate.

REQUISITES FOR AN INTERIM INTERDICT(PENDENTE LITE/INTERLOCUTORY)

1.Prima facie right

2. Well grounded apprehension of irreparable harm if the interim relief is not granted

and the ultimate relief granted

3.That the balance of convenience favours the granting of an interim interdict

4. That the applicant has no other satisfactory remedy

In view of the discretionary nature of interim interdicts, these requisites interact and

are not judged in isolation.

PRIMA FACIE RIGHT

Prima facie proof of facts that establish the existence of a clear right in terms of

substantive law. If a clear right is proved, he is entitled to the relief sought but should

be granted a final interdict. Also if the matter is a ordinary legal issue, the court should

either grant or refuse a final interdict.

The right can be prima facie established even if open to some doubt.

IRREPARABLE HARM

This means loss or property(including money) where its recovery is impossible or

improbable. Irreparable loss will occur if someone who is entitled to something is

forced to take merely its value or is obliged to spend money which he could not

possibly recover.

A reasonable apprehension that continuance of the wrong will

cause irreparable harm. If the applicant can establish a clear right, this need not be

established. This requisite is closely associated with balance of convenience.(An

undertaking not to infringe may be taken into account)

BALANCE OF CONVENIENCE

The balance of convenience must favour its granting.

The court must weigh up the prejudice the applicant will suffer if the interdict is not

granted against the prejudice the respondent will suffer it is granted.

The exercise of the discretion usually revolves itself into a consideration of the

prospects of success and the balance of convenience. The stronger the prospects of

success, the less the need for such balance to favour the applicant; the weaker the

prospects of success, the greater the need to favour him

NO ALTERNATIVE REMEDY

The choice is usually between interdict and damages and is also a factor to be taken

into account in exercising the court's discretion.

This need not be shown by an applicant in a vindicatory action because applicant

cannot be forced to accept merely the value of the property

DISCRETION

Court has a wide discretion to refuse even if the requisites have been established. It

has not discretion to grant it if they are absent.

In vindicatory actions it may be granted even if the probabilities of success is against

the applicant and should ordinarily be granted if no harm would be occasioned to

respondent.

Court may attach conditions i.e that applicant must provide security for damages

respondent might suffer