Understanding interdicts

◆ orders the person to restore possession of property to a person who is unlawfully deprived of his property. This is where you find Spoliation orders. We will look at these in another article.

(ii) It is classified on whether the order is temporary or final

(a) a final interdict is order to secure a permanent end to an unlawful state of affairs;

(b) temporary/interlocutory interdict is an order granted pendente lite (pending litigation) in order to secure the rights of the applicant pending the outcome of either contemplated or existing litigation.

What are the requirements

for an interdict?

The requirements for an interim interdict to be granted are settled in this jurisdiction.

They were set out in Setlogelo v Setlogelo 1914 AD 221 at 227:1. That the right which is sought to be protected is clear; or that (a) if it is not clear, it is prima facie established, though open to some doubt; and

2. There is a well-grounded apprehension of irreparable harm if interim relief is not granted and the applicant ultimately succeeds in establishing his right;

3. That the balance of convenience favours the granting of interim relief; and

4. The absence of any other satisfactory remedy.”

See: Nyambi & Ors v Minister of Local Govt & Anor 2012 (1) ZLR 569(H) at 572D-E; Econet (Pvt) Ltd v Minister of Information 1997 (1) ZLR 342(H) at 344G-345B; Watson v Gilson Enterprises & Ors 1997 (2) ZLR 318(H) at 331D-E; Nyika Investments (Pvt) Ltd v ZIMASCO Holdings (Pvt) Ltd & Ors 2001 (1) ZLR 212(H) at 213G-214B.

The existence of a right is a matter of substantive law. Whether that right is clearly or only prima facie established is a question of evidence. The law gives the court a general and overriding discretion whether to grant or refuse an application for an interim interdict even in circumstances where the requisites for that relief are found to exist.

That discretion must be exercised judicially based on the circumstances of each case. See Nyambi (supra) at 575D-E; Watson v Gilson Enterprises & Ors supra at 331E; Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382(D) at 383E.

If the above conditions are met then the court may grant the provisional order sought and provide for a return date for the parties to then make arguments on whether or not the final order sought can be granted.

On the return day a party ought to establish a clear right as opposed to a prima facie right.

The requirements for a final interdict on the other hand are:

1. A clear right;

2. Irreparable harm actually committed or reasonably apprehended; and

3. The absence of an alternative remedy. In ETO Electricals & Rewinds (Pvt) Ltd v ZESA Holdings (Pvt) Ltd & Others (HC 5374/15) the court considered an application for an interim interdict preventing the respondents from interfering with the applicant’s business and to remove their security personnel.

The applicant held a licence to deal in scrap metal, particularly to acquire, sell or deal in copper. Police officers, accompanied by the 1st respondent attended at the applicant’s warehouse and advised of its intention to search for certain materials which were suspected to have been stolen from the 1st respondent.

The 1st respondent ensured that security were placed at the premises to guard the warehouse until such time as the warrant had been obtained.

The court stated that the requirements for an interim interdict were:

1) a clear right,

2) a well-grounded apprehension of harm if the relief was not granted, 3) balance of convenience, and 4) absence of any alternative remedy. The court found that there was an alternative remedy available since dealing in copper was a closely controlled trade and that a holder was obliged to keep proper records of the copper in its possession, thus it should have no difficult in accounting for any loss.

The court weighed the prejudice to the applicant if the relief was refused against the prejudice to the respondent if granted. It observed that the purpose of placing the security was to ensure that the premises was safe and no items were lost.

If relief was granted, this protection would be lost.

Thus, the balance of convenience did not favour the applicant. Accordingly, the application was dismissed.

LEGAL DISCLAIMER:

The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis.

They are not meant to create an attorney-client relationship or constitute solicitation.

No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the article/post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.

Arthur Marara is a Law Lecturer, Corporate law attorney practicing law in Harare, Zimbabwe with a reputable firm. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email attorneyarthurmarara@gmail.com