The requirements of an interim interdict
Case Summary : HM v LM
Certain interim relief was granted to the applicant on the 28th of January 2020 and the applicant wanted to confirm this relief, pendente lite. The following relief was granted to the applicant in terms of the interim order, namely that the respondent was, “…interdicted and restrained from alienating, entering into any sale of or transferring, disposing of or encumbering, in any manner whatsoever, the immovable property situated at […] Victoria Bay, Western Cape, South Africa (the property), pending the outcome of the divorce action between the parties, under case number 19881/19 (the divorce action); and ejected from the property, pending the outcome of the divorce action…”. The parties got married in 2008 under and as far as an antenuptial agreement which did not include the accrual system. Around after 11 years they chose to leave their marital home on a farm in the Northern Cape and they together moved and lived in Victoria Bay, which turned into their new wedding home. During October 2019, the respondent left the property and came back to the old wedding home and from that time until the 5th of December 2019, the applicant inhabited the property in harmony, while the respondent lived in the old marital home.
The parties were not in agreement about whether the test to be applied was that for interim or final relief. It was held by the court that the relief the applicant wanted was temporary in nature. Thus, all together for the application to be effective, the applicant needed to create a prima facie right; a concern of enduring mischief; that the equalization of comfort supported the giving of the assistance; and the nonattendance of some other satisfactory remedy. The applicant takes the position; that she has no place else to live; has no suitable option in contrast to living at the property and likewise the application was essential and urgent. No other acceptable remedy was accessible to her. Further, it is presented that the applicant ought not need to utilize her own assets to lease or purchase another house to live in pendente lite, since it is her significant other’s behaviour which makes living with him excruciating. The respondent takes the position that the applicant is a woman of some extensive methods and can undoubtedly lease an appropriate property should she not wish to live in the wedding home in the Northern Cape.
The court was satisfied with the applicant’s allegations made by her against the respondent in that they were true. The applicant thus succeeded in establishing all the requirements of an interim. The interim order was confirmed.