LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

168 Chapter 6
actually committed or apprehended, and the absence of similar
protection by any other ordinary remedy. 11 Additionally, it has also
been held that the grant or refusal of an interdict is a matter within
the discretion of the court and depends on the facts of each case and
the right being enforced. 12 The other requirement is that the
applicant for an interdict must have locus standi in accordance with
the civil procedure law. 13 However, this rule does not appear to have
application in respect of enforcement of the rights in the Bill of
Rights. As mentioned in chapter five, 14 locus standi, as regards Bill of
Rights litigation, is governed by section 38 of the Constitution. This
section gives locus to persons who would not otherwise have had it
under civil procedure law. 15 Just as in the case of the declaratory
order, this enables persons other than the direct victims of an
infringement of a right to seek relief in the form of an interdict. In
fact, the first socio-economic rights case in which the Constitutional
Court issued a mandatory interdict was brought to the Court by
persons who were themselves not direct victims of the infringement
of the right of access to health care services. 16
The power of the courts to follow up injunctive orders with
contempt of court sanctions has enhanced the power of the interdict
as a deterrent remedy. 17 Failure to comply with an interdict could
attract sanctions ranging from mere warnings to orders that the
11 Setlogelo case (n 9 above) 227. See Fourie v Uys 1957 2 SA 125 (C), where it was
held that a court will not grant an interdict when an applicant can obtain
adequate redress by an award of damages (128). See also SAPU and Another v
National Commissioner, SAPS and Another [2005] JOL 16030 (LC). The basis for
the requirement that the interdict will be granted only if there is no other
remedy is that the interdict is a very drastic remedy which ought to be granted
only in deserving cases. See Prest (n 8 above) 45.
12 See Candid Electronics (Pty) Ltd v Merchandise Buying Syndicate (Pty) Ltd 1992 2
SA 459 (C) (Candid case).
13 L Harms ‘Interdicts’ in W Joubert & J Faris (eds) The law of South Africa (1998)
287.
14
Sec 5.3.2.
15 See Ngxuza and Others v Permanent Secretary, Department of Welfare, Eastern
Cape 2001 2 SA 609 (E); Ferreira v Levin NO 1996 1 SA 984 (CC).
16
See Minister of Health and Others v Treatment Action Campaign 2002 5 SA 721
(CC).
17 See Kate v MEC Department of Welfare, Eastern Cape [2005] 1 All SA 745;
Mahambehelala v MEC Department of Welfare, Eastern Cape 2002 1 SA 342 (SE);
and Mbanga v MEC for Welfare, Eastern Cape 2002 1 SA 359.