Johan De Lange | SchoemanLaw Inc  

Category: Litigation   

Introduction: 

An interdict can be a powerful remedy for enforcing and protecting one’s rights. An interdict is an order of court that can either restrain someone from engaging in a certain or specific action or compel someone to fulfil a particular or definable obligation. Obtaining an interdict is no easy task; the courts require that certain prerequisites be met before granting an order of this nature. Interdicts are typically obtained through the application procedure, although this does not preclude a person or entity from obtaining an action procedure. Therefore, when one speaks of interdict, it refers to the remedy or order that one seeks from the court and not a specific court procedure.  

Before seeking the remedy of an interdict, it must be understood that there are two main types of interdicts. A prohibitory interdict aims to prevent or halt someone from engaging in certain activities. On the other hand, there is a mandatory interdict that compels an individual to perform a particular action. In the case of public officials, a mandatory interdict, often known as a mandamus, can be sought to ensure the fulfilment of specific duties or administrative action is taken.  

Interdicts can further be classified as either final or interim. The primary purpose of an interdict is to safeguard and enforce rights. If an applicant can establish their right before a court clearly, they may seek a final interdict, which enforces their right definitively. However, if the evidence presented only demonstrates a prima facie case, indicating a plausible right, an interim interdict may be granted. This temporary order protects the request for a limited period until the court can determine whether the prima facie right is indeed a clear right.  

Requirements of an interim interdict:  

As explained above, an interim interdict serves as temporary relief sought by an applicant pending the resolution of a dispute. However, an interim interdict is subject to specific requirements and judicial discretion. This section provides a comprehensive understanding of the critical elements in obtaining interim interdicts: a prima facie right, well-grounded apprehension of irreparable harm, the balance of convenience, and the absence of any other satisfactory remedy.  

Prima Facie Right: A prima facie right refers to a request established at first sight or on the face of it. The applicant must identify an applicable right that exists as a matter of law, even if the existence of the request is open to some doubt. The applicant must support this right with allegations and supporting evidence based on their version of the dispute. While the applicant's right need not be proven on a balance of probabilities, it should be prima facie established, though open to some doubt. The court considers the inherent possibilities and the facts set out by both the applicant and the respondent in determining if the applicant could obtain final relief at trial. Well-Grounded Apprehension of Irreparable Harm: In the case of interim interdicts, the harm to the applicant must be likely to be irreparable if the interim relief is not granted and the ultimate comfort is granted. Irreparable harm does not imply the absolute impossibility of restoring but rather signifies the difficulty and almost impossibility of restoring the status quo. It may include the loss of money, property, or any interference with a right that prevents the applicant from exercising it. If restoring the status quo at a later stage would be costly and complicated, the requirement of irreparable harm is likely to be met. Balance of Convenience: The balance of convenience refers to weighing the prejudice that the applicant would suffer if the interdict is not granted immediately against the prejudice that would be sustained by the respondent if it is granted. The court considers the applicant's prospects of success and the potential injury involved. If the applicant's prospects of success are strong, the balance of convenience can be independent of the applicant. However, if the prospects of success are weak, the balance of convenience must heavily favour the applicant, and the potential injury must be significant for an interdict to be granted. Absence of Any Other Satisfactory Remedy: To obtain an interim interdict, the applicant must demonstrate that no other satisfactory remedy is available. This requirement is similar to that of final interdicts and ensures that the interim interdict is necessary and appropriate under the circumstances. 

Requirements of a final interdict  

This section aims to address the requirements that must be satisfied to entitle the applicant to a final interdict. Namely a Clear Right, Injury Actually Committed or Reasonably Apprehended and Absence of a Satisfactory Remedy.  

Clear Rights: Before a court can grant a final interdict, it must be established that the applicant possesses a clear right. This involves two essential steps. Firstly, the right must exist in law, encompassing a broad range of rights recognised by common and statute law. These rights can arise from various sources, such as constitutional or human rights, property law, or contractual agreements. Secondly, the applicant must prove the existence of the right in fact, substantiating it with evidence. The burden of proof lies with the applicant, who must demonstrate the existence of the right on a balance of probabilities. Injury Actually Committed or Reasonably Apprehended: The second requirement for a final interdict is the occurrence or reasonable expectation of an injury. In this context, the injury does not solely refer to physical harm or financial loss but also encompasses interference with rights. For instance, denial of access to a public park may not result in bodily injury or financial loss but deprives the applicant of enjoying its facilities. The term "injury" signifies an act of interference with the applicant's right, causing prejudice or invasion. Additionally, if the interdict is sought to prevent a delict, evidence of wrongful conduct by the respondent must be presented. 

The injury must either be continuing or imminent. A final interdict will not be granted for an injury already committed. Furthermore, the injury does not need to be irreparable; even potential prejudice can be considered. The applicant must establish a reasonable apprehension of injury based on well-grounded facts that would be shared by a reasonable person. While the apprehension need not be indisputable, it should be reasonable on a balance of probabilities, ensuring that the applicant's fear of injury is substantiated. 

Absence of Satisfactory Remedy: The final requirement for a final interdict is the need for any other ordinary or satisfactory remedy available to the applicant. The court will not grant an interdict if alternative forms of redress exist that would adequately address the situation. These alternative remedies can encompass various legal options, such as claims for damages, sequestration of the respondent's estate, police protection, or binding-over orders. Damages can be a viable alternative if the infringement of rights can be quantified monetarily, ensuring adequate compensation. However, certain exceptions exist, such as when the respondent lacks assets or money, the injury is a continuous violation of rights, or it is difficult to assess the damages caused. 

Conclusion: 

As has been described above an interdict is an extradentary remedy of last resort that the court will award in cases where it can either be established that a prima facie case exists or where a clear right and the irreparable harm may result should the court not intervene through such an order. The requirements are clear and extensive in their difficulty to meet, but the remedy serves are a powerful tool to enforce or protect rights.  

If you feel that your rights are being infringed or that you might suffer irreparable harm from the conduct or lack of action by another, contact a specialist at SchoemanLaw for your litigation needs.  

Johan De Lange | SchoemanLaw Inc
Attorney
https://schoemanlaw.co.za/our-services/civil-litigation-and-alternative-dispute-resolution/