What is an Interdict and how does it operate?
An interdict, according to Jones & Buckle( Jones & Buckle Civil Practice in the Magistrates Court SA 6ed 71), is an extraordinary remedy and summary remedy issued where someone needs protection of his or her rights against unlawful interference or the threat of unlawful interference.
Interdicts generally take one of 3 forms:
- To stop/prevent a person from acting/ taking action (Prohibitory).
- To Compel/ force a person to act / take action in a certain way (Mandatory)
- To order a person to return property to the applicant (Restitutionary)
The above are to an extant self-explanatory in that an interdict can be used to stop act against the applicant, cause the other party to take specific action or to return property to the person bringing the Interdict Application.
It is further to be noted that a Interdicts can be obtained in both the Magistrates and High Court, however a Mandatory Interdict, which amounts to an order of specific performance can only be obtained in the High Court and not the Magistrates Court.
Interdicts are generally brought by way of the Motion Procedure which entails a notice of Motion and an accompanying Founding Affidavit. Interdicts can be brought by way of the action procedure entailing a Combined Summons with the accompanying Particulars of Claim, should facts be in dispute between parties It is to be noted that the action procedure is rarely used in the bringing of Interdicts.
Interdicts can be Interim or Final in Nature each of which will be briefly explained below.
An Interim interdict is a restoration or preservation of the specific scenario until a final decision relating to the rights of the parties can be made by the Court, it must be noted that the granting of an interim interdict does not and should not affect the court’s decision when making its final decision.
In order to obtain an Interim Interdict the following is required:
- A Prima Facie Right arising from a contract, codified law or the Common Law. It is to be noted that an interest is not enough to seek the relief of an Interdict
- That there is a reasonable probability of irreparable harm being caused to the Applicant should the Interdict not be granted.
- There is no Alternative remedy available to the Applicant
In order to grant the interim interdict all factors above must be present and the balance of convenience must lean in favour of the Applicant upon granting the Interdict or alternatively in the favour of the respondent should it not be granted, it can be said that the Balance of convenience is the measuring factor the court uses.
The simplest way to describe the Balance of Convenience is that it weighs who would suffer the lesser damage or infringement of their right should the interdict be granted.
This type of interdict is as the name states is final, and is not granted pending another decision.
In short it can be said that should all factors required for a final interdict as listed above be present the interdict should be granted by the Court.
Written by : Jean Vermaas (B.Com Law, LL.B, LL.M)