LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

The structural interdict 169
defendant be imprisoned until he or she assures the judge of his or her
intention to comply. 18 Indeed, contempt of court, even arising from
a civil case, is treated as a criminal offence. 19 This is what makes
injunctive relief far more powerful than declaratory relief as
contempt sanctions cannot issue in respect of the latter. 20
6.2.1 Types of interdicts and appropriateness in socio-economic
rights litigation
There are two broad types of interdicts: prohibitory interdicts, on one
hand, and mandatory (sometimes called reparative) interdicts, on the
other. Both the prohibitory and mandatory interdict can be issued
either as perpetual or as interim interdicts (interlocutory). 21 The
perpetual interdict is the final order of the court and is deemed to
signal the final determination of the issues in the case. In contrast,
the interim interdict is issued to protect the interests of the applicant
by maintaining the status quo pending the final determination of the
case. The distinction between the perpetual and the interim interdict
is very important because the prerequisites for issuing the two
differ. 22 The requirements enumerated above apply to the perpetual
interdict. 23
Prohibitory interdicts
A prohibitory interdict is negative in form: It prohibits the person(s)
to whom it is directed from doing something proclaimed as a
violation. 24 Its role is therefore to proscribe what may be considered
18 Fiss (n 6 above) 76. Fiss has elevated the interdict above criminal rules as a
deterrent on the basis of what he calls its individuated nature. He contends that,
while a criminal liability rule is directed to the general public, the interdict is
directed at a specific person. The individuated nature of the interdict also
contributes to the higher degree of its specificity and proper specification of the
intended beneficiaries. This makes compliance much easier in comparison to a
criminal liability rule (12). He also submits that the interdict puts to rest fears of
potential victims in comparison to compensatory relief. While a potential victim
will know that he will get compensation once a wrong is committed on him or her,
he or she still lives with the fear that the compensation may not be adequate.
Fiss adds that yet, the guarantee of compensation does not still allay the fear of
being a victim. Interdicts allay these fears because one will know that the
possibility of being a victim has been allayed.
19 S v Beyers 1968 3 SA 70 (A).
20
See ch five sec 5.3.2.
21 See Jordan v Penmill Investments CC 19912 SA 430 (E) 436D.
22 Jones & Buckle (n 4 above) 89.
23
The interim interdict will be discussed in detail in this section because of its
importance in protecting human rights.
24 The prohibitory interdict has been granted in a variety of contexts and for a
variety of reasons to prohibit the commission of a delict, to restrain interference
with a property owner’s right of enjoyment, to restrain the breach of a statutory
provision, to restrain the infringement of a copy right, to restrain the passing on
of trade secrets and to restrain acts of family violence, amongst others. See
Jones & Buckle (n 4 above) 91.