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100-year-old case on interim interdicts
01 Aug 2019 12:00 am
100-year-old case still the leading case on interim interdicts
Interim interdicts have featured in several high-profile cases recently and the applicants have to meet certain criteria. The most referred to case in these applications is Setlogelo v Setlogelo 1914 AD 221. But this case is over 100 years old, so can it still be valid?
The Constitutional Court in National Treasury v Opposition to Urban Tolling Alliance 2012 (11) BCLR 1148 (CC), found that it is. The court held that it is unnecessary to fashion a new test in order to grant an interim interdict. The test in Setlogelo, as adapted by case law, continues to be a handy and ready guide, not only to judicial officers in busy Magistrates' and High Courts but also for practitioners alike. Now, however, the test must be applied cognisant of the normative scheme and democratic principles that underpin our Constitution. So when a court considers whether to grant an interim interdict it must do so in a way that promotes the objects, spirit and purport of the Constitution.
The well-established requirements for the granting of an interim interdict as set out in Setlogelo and refined, 34 years later, in Webster are as follows:
The test requires that an applicant that claims an interim interdict must establish:
- a prima facie right, even if it is subject to some doubt;
- a reasonable apprehension of irreparable and imminent harm to the right if an interdict is not granted;
- the balance of convenience must favour the granting of the interdict; and
- the applicant must have no other remedy.
There’s no stopping the 100-year-old leading case on interim interdicts!