When to apply for an INTERDICT
An interdict is a powerful remedy which protects the right(s) of a person or entity, against an unlawful interference. Generally, interdicts are brought by way of Motion Procedure and the costs incurred for such proceedings could start at R6 000.00, depending on the facts.
Should there be facts in dispute between the parties, the interdict can also be brought by way of the Action Proceedings and these costs could be infinite, depending on the detail of the case.
The three forms of interdict can be explained as follow:
Prohibitory interdict: is used to prevent or stop someone from doing something or acting in a certain manner; i.e.:
- Business related: In Du plessis v Labuschagne the applicant applied for a prohibitory interdict against the respondents to restrain them from operating an attorney’s practice on a certain property that was in contravention with the conditions of the Title Deed of the property and the conditions of the Town Planning Scheme.
- Divorce proceedings related: In Osner v Osner the applicant brought an urgent interim application against her husband to restrain him from removing their yacht from South African waters and to only take charter trips pending the finalisation of the divorce proceedings.
- Noise related: In Laskey v Showzone an applicant owning an apartment sought a prohibitory interdict to restrain his neighbours from noise nuisance.
Mandatory interdict: is used to force someone to act in a certain manner or to do something; i.e.:
- To make information known: A mandatory interdict to compel a company to provide another company with copies of certain documents. The Promotion of access to information act provides for the provision of information that needs to be revealed in certain matters such as business related information.
- Social media related: An urgent application for the removal of defamatory messages from a Facebook page.
- Safety related: The repair of exposed, low hanging electric cables in order to insure the safety of vulnerable children, motorists and residents.
Restitutionary interdict: is used to order someone to return property, i.e.:
- This interdict can be used when a person is unlawfully deprived from the possession of movable or immovable property.
- Motor vehicles: A court can order that the possession and control of a motor vehicle, be restored, that was taken in for repairs and then unlawfully held and used by the mechanic.
- Land restitution: In Desai v Registrar of Deeds there was an urgent application for an interdict to transfer a certain property and to interdict the respondent from selling, donating, letting, subdividing or developing the land pending the finalization of the applicant’s land restitution claim.
For a matter to be heard by a court as an urgent matter, an applicant must be able to show and give reasons why the application is substantially urgent. If the court cannot be persuaded in this regard, the application may fail with unnecessary legal costs incurred by the applicant. Interdicts are either interim or final in nature, depending on the application before the court, and are discussed below.
An interim interdict is defined as an order preserving or restoring the status quo or existing state of affairs, pending a final determination, at a later stage. As the meaning of the words indeed indicates, it is only of a temporary measure. Usually, temporary relief relates to another or the main matter, which is still in dispute.
There are four requirements for the granting of an interim interdict (Akoo and Others v Master of the High Court and Others):
- There must be a clear or prima facie right;
- Irreparable harm will follow if the interdict is not provided;
- A balance of convenience of granting the interim relief; and
- There is no alternative remedy available to the applicant.
A final interdict means “a final and permanent interdict”. The court stated that there are three fundamentals requirements for a final interdict:
- A clear right on the part of the applicant;
- A real injury committed or reasonable apprehended;
- An absence of any satisfactory remedy available to the applicant.
It is advisable for an aggrieved party to always consult with a legal practitioner to determine the right course of action.