A Complete Guide to Interdicts in South Africa
Interdicts are a type of legal action that can be used to obtain court orders or injunctions to prevent someone from taking certain actions or to compel them to take certain actions. In this article, we will provide a complete guide to interdicts in South Africa, including what they are, when they can be used, and how to obtain one
What is an Interdict?
An interdict is a court order that has the power to enforce a party’s rights that have been disregarded by another party.
Interdicts are a powerful remedy that can be granted by the courts where someone needs protection of their rights against the threat of or the actual unlawful interference.
Types of Interdicts
Interdicts come in three forms namely:
Interdicts that prohibit someone from doing something (prohibitory);
Interdicts that compel someone to do something (mandatory); or
Interdicts that orders the return property or restores possession to someone (restitutionary).
The relief granted by a court ordered interdict can be either temporary (i.e. interim) or final in nature and in certain very specific circumstances, a person may even be entitled to an urgent interdict.
Interdicts Requirements
There are four requirements which need to be met before a court will consider granting of an interdict. The four requirements are as follows:
that there is a clear legal right;
that there is a well-grounded basis for believing the applicant (the party seeking the interdictory relief) will suffer irreparable harm if the interdict is not granted;
that the balance of convenience must favour the applicant; and
that no alternative remedy available to the applicant.
Urgent Interdicts
In respect of an urgent interdict, there is one additional requirement which has to be met, namely that there are ground/s for urgency.
When determining whether urgency exists, our Courts will consider:
what the prejudice is;
how serious the prejudice is;
the impact of the prejudice; and
whether such prejudice can be cured by some other remedy in law.
An ill-conceived application for an urgent interdict, where no urgency exists, can result in a cost order being made against you (against the applicant). As a result, it is important for business owners to note that our courts typically do not recognise commercial urgency as a ground for urgency (e.g. a claim for payment of money).
How to Obtain an Interdict
To obtain an interdict, you will need to apply to the court for a court order. The process for obtaining an interdict can be complex and will depend on the specific circumstances of your case. Generally, the following steps are involved in obtaining an interdict:
Consult with an attorney: It is advisable to consult with an experienced attorney who can advise you on whether an interdict is appropriate in your case and guide you through the process of obtaining one.
Draft an affidavit: An affidavit is a sworn statement setting out the facts of your case. This document will form the basis of your application for an interdict.
Lodge the application with the court: You will need to lodge your application with the relevant court and pay the necessary fees.
Serve the application on the respondent: The respondent is the person against whom you are seeking the interdict. You will need to serve them with a copy of your application and give them an opportunity to respond.
Attend the hearing: The court will set a hearing date for your application, and you will need to attend the hearing and present your case to the court.
Conclusion
Interdicts are an important tool for protecting people's rights and preventing harm in South Africa. They can be used in a wide range of circumstances and can provide an effective remedy for those who have been wronged. By understanding what interdicts are, when they can be used and how to obtain one, you can ensure that your rights are protected and that you have the best chance of obtaining a favorable outcome in any legal proceedings. Our highly experienced litigation lawyers have extensive experience with all sorts of interdicts and are well versed in the nuances surrounding the legal framework in respect of them.
If you need assistance with a litigation matter or dispute, contact our offices today to schedule a consultation with one of our specialist litigation attorneys.