by Raeesa Ebrahim Atkinson
Have you ever felt endangered to the degree that you wished to seek a restraining order or felt compelled to stop a neighbour from infringing on your ownership and property rights?
If you have, then you may be familiar with the interdict process. However, there are common areas of business where an interdict may be utilised to protect proprietary or other interests but is often not. For example, an interdict may be utilised when restraint of trade is being enforced and where a company wishes to protect confidential information or its property.
Be that as it may, an interdict isn’t often sought in these in these instances. This may be attributed to the fact that it is often regarded as an extraordinary remedy and, for the most part, is treated as a last resort.
However, recent economic uncertainty may result in businesses taking a hard-line approach to the protection of their interests. Considering this, it is important for business owners and key stakeholders to be aware of the process involved.
Types Of Interdicts
Generally, there are three types of interdicts:
Prohibitory Interdict: sought to prevent or stop a party from acting/ acting in a certain way.
Mandating Interdict: sought to compel a party to act.
Restitutionary Interdict: sought to have a party’s property returned.
Court: Process, Requirements and Onus’
An interdict is sought by way of an application/ motion proceedings. In other words, the initial papers will include a Notice of Motion and Founding Affidavit. The Notice of Motion will set out the interdict sought or the order sought from the court. The Founding Affidavit will set out the basis for your application and refer to the relevant evidence of same.
In order to obtain the interdict sought, the following requirements need to be met, and the applicant bears the onus to meet them:
A clear right (the right being/ which will be infringed),
The applicant will suffer irreparable harm should the interdict not be granted,
No other available remedy.
With due regard to the above, courts will also consider the potential prejudice to the party seeking the interdict should not be granted and weigh this against the potential prejudice to be suffered by the other party should it be granted.
Courts may also grant interim interdicts should they be applied for. An interim interdict is not final. It allows the interdict (whichever type) to apply during the period upon which the interim interdict is granted until the court makes a final order.
To obtain the interim interdict, the applicant must prove that the applicant has a prima facie (on the face of it), that the applicant will suffer irreparable harm should the interim interdict not be granted and that there is no other available remedy.
Albeit drastic, interdicts remain a good way to protect proprietary interests. However, meeting the requirements for an interdict in the realm of business may more than likely require application and analysis of legal principles such as pacta sunt servanda, public policy and the palscon evans rule.
Considering the above it would be important to seek legal assistance when seeking an interdict.
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