A Guide to Interim Interdict in Zimbabwe

One of the most sought-after relief from the courts in Zimbabwe, is in the form of an interdict. In commonwealth jurisdictions, interdicts are known as injunctions. Interdicts are a form of interim measure of protection which are granted by courts and arbitral tribunals and are known by different names, including but not limited to:

• Conservatory measures;
• Interim relief;
• Preliminary injunctive measures;
• Provisional measures.

There are different types of interdicts for different types of scenarios. However, the purpose of seeking an interim interdict is simply the safeguarding of rights and obligations and preventing or minimizing a disadvantage until a determination of the merits of a particular matter.

In Winkelbauer & Winkelbauer t/a Eric’s Pizzeria & Another v Minister of Economic Affairs 1995 (2) SA 570 (T) 574 it was held:

“The purpose of interim pendent lite is to obviate an injustice to a party who prima facie has been (or believes on reasonable grounds that he is about to be) wronged, but who needs time to obtain redress through the due process of law.”

An interdict as an interim measure of protection requires someone to refrain from doing something (prohibitory) or to perform a particular act (mandatory). It therefore affords protection. The requirements for interdicts were set out Setlogelo v Setlogelo 1914 AD 211 as follows:

• Prima facie right even if it is open to doubt;
• An apprehension of irreparable harm to the applicant;
• The absence of any other satisfactory remedy; and
• The balance of convenience favours the granting of the interdict.

The Supreme Court of Zimbabwe in Charuma Blasting & Earthmoving Services (Pvt) Ltd v Njanjai & Others 2000 (1) ZLR 85 (S) 86B, held that:

“The party applying for a temporary interdict must establish a prima facie right even though open to some doubt, a well-grounded apprehension of injury and the absence of some other adequate and ordinary remedy. Regarding the requirement of injury, the court must weigh the prejudice to the applicant, the interdict is not granted against the prejudice to the respondent if it is granted. The stronger the applicant’s prospects of success, the less his need to rely on prejudice to himself. Where a clear right is established which is not open to doubt, it is not necessary for the applicant to prove that the failure to grant the interdict will lead to irreparable injury to himself...”

The court has a direction when it comes to the granting or refusal of an interdict. The court in Olympic Passenger Services (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D) 383C-G held that:

“It thus appears that where the applicant’s right is clear, and the other requisites are present, no difficulty presents itself about granting an interdict. At the other end of the scale, where his prospects of ultimate success are nil, obviously the Court will refuse an interdict. Between those two extremes fall the intermediate cases in which, on the papers as a whole, the applicants’ prospects of ultimate success may range all the way from strong to weak. The expression ‘prima facie’ established though open to some doubt seems to me a brilliantly apt classification of these cases. In such cases, upon proof of a well-grounded apprehension of irreparable harm, and there being no adequate ordinary remedy, the Court may grant an interdict – it has a discretion, to be exercised judiciously upon a consideration of all the facts. Usually this will resolve itself into a nice consideration of the prospects of success and the balance of convenience – the stronger the prospects of success, the less need for such balance to favour the applicant: the weaker the prospects of success, the greater the need for the balance of convenience to favour him. I need hardly add that by balance of convenience is meant the prejudice to the applicant if the interdict be refused, weighed against the prejudice to the respondent if it be granted.”

An interim interdict is not a remedy for the past invasions of rights and will not be granted to a person whose rights in a thing have already been taken from him. see Cedor Park Farm (Pvt) Ltd v Minister of State for National Security & Others 2010 (2) ZLR 158 (H).

The Supreme Court in J.C. Conolly & Sons (Pvt) Ltd v Ndhukula & Another 2018 (1) ZLR 219 (S) held that:

“The law is now established that an interim interdict will not be granted to a person whose rights in a thing have already been taken by operation of law at the time he or she makes an application for interim relief… Indeed, once a farm has been acquired, the rights over such farm vest in the State. That being the position the former owner and title holder has no locus standi to approach the court for an interdict because he or she cannot establish a clear right.”