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ENSight | 28 Feb 2011

 

 

1. What is an interdict?

An interdict is a court order that may be sought in order to enforce a right. It is usually sought by way of application proceedings which are relatively inexpensive and are far less time consuming than trial proceedings. It is possible to obtain both a prohibitory interdict – which prevents the respondent from doing something – and a mandatory interdict – which requires the respondent to do something. Examples may be to prevent a former employee from disclosing trade secrets, or to require a builder to complete a construction in terms of a contract.
 

2. Interim and Final Interdicts

There are two kinds of interdicts, namely interim and final interdicts. The test is whether or not a clear right exists. If there is only a prima facie right (i.e a right “on the face of it”) then, provided certain requirements are met, an interim interdict may be granted. This enforces the prima facie right for a period of time, at the end of which a clear right must be proved or the interim interdict will be discharged. If a clear right is proved, a final interdict may be granted. Interim interdicts can, in appropriate cases, be granted for lengthy periods of time or may be extended to protect a prima facie right until, for example, an action has been finalised.
 

3. Interim interdicts: requirements for the granting of an interim interdict:
 
3.1 A prima facie right:
 
3.1.1

As previously mentioned, in order to obtain an interim interdict it is necessary to establish a prima facie right. It is not important where the right is derived from – whether from a contract, the common law or in terms of a statute, but it must be an actual right; a mere interest in the relief sought is not enough.
 

3.2 A reasonable apprehension of irreparable harm if the interim interdict is not granted:
 
3.2.1

If the applicant can show a prima facie right, then an interim interdict will only be granted if the harm to the applicant is likely to be irreparable. This is due to the fact that, as a clear right still has to be proved, it may be that a clear right cannot be proved and the interdict may be discharged on the return day. The interim order will only be granted if, by not granting the relief, it will be very difficult, if not impossible, to restore the status quo.
 

3.3 There is no alternative satisfactory remedy available to the applicant:
 
3.3.1

This is linked to the previous requirement, namely that in addition to there being a reasonable apprehension of irreparable harm, there must also be no alternative satisfactory remedy available, such as a claim for damages that would adequately compensate any loss.
 

3.4 The balance of convenience is in favour of granting the interim relief:
 
3.4.1

Ultimately the granting or refusal of an interim interdict lies in the exercise of judicial discretion by the court. In exercising this discretion, the court must take account of the balance of convenience in relation to both the applicant and the respondent, and in deciding whether the balance of convenience leans in favour of the applicant (if the interim interdict is granted) or the respondent (if it is not). The court may also take into account the applicant’s prospects of success in relation to whether or not it is likely that the applicant will ultimately be able to show a clear right; as well as any potential prejudice to third parties.
 

4. Urgent relief

It is often necessary to apply for an interim interdict on an urgent basis; and in certain circumstances by way of an ex parte application (that is without notice to the respondent). In these cases the court (if it grants the interim interdict) will issue a rule nisi, which will order the respondent to come before the court on a particular date, to show cause as to why the interim interdict should not be made a final interdict.
 

5. Summary of the steps taken to obtain an interdict:
 
5.1 An application for an interim interdict is brought on notice of motion with a founding affidavit.
 
5.2 If the matter is urgent, the application may be brought ex parte, with a rule nisi granted with a return date.
 
5.3

The rule nisi is thereafter served on the other side and the respondent must show cause on the return day why the rule should not be confirmed and a final interdict granted.
 

5.4 When requesting an interim interdict, the applicant will ask for temporary relief, which will operate until the return day.
 
5.5 The interdict sought on the return day is usually final, but may again be interim.
 
James Haydock - Director
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a brief discussion on interdicts

by James Haydock and Tumelo Matlwa