LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

170 Chapter 6
unlawful conduct. In socio-economic rights cases, the prohibitory
interdict is most appropriate as a remedy for infringements of the
negative obligations that these rights give rise to. It could be obtained
to stop either the government, or any other person, from taking away
the existing socio-economic rights vested in the applicants and
similarly situated people. The prohibitive interdict is also very
effective in preventing future infringements where the plaintiff shows
a likelihood of violating protected rights. In this case, it becomes a
preventative interdict. For this type of interdict to be granted, the
plaintiff must show a reasonable apprehension of injury. This is
apprehension a reasonable man might entertain on being faced with
the facts. The test is objective and the applicant need not prove on a
balance of probability that injury will follow. 25 However, the
apprehension must be induced by some action of the respondent or
authorised to be performed by his or her agent or servant. 26
The distinction between the prohibitory and mandatory interdict
appears to be of no practical value. In fact, the prerequisites for the
issuance of the two are the same. However, the importance of the
distinction lies in the manner of enforcement of each of them. 27 This
is because the prohibitory interdict does not require the state to
undertake any positive action; it involves less costs to the defendant,
fewer problems with supervision and is easier to formulate. 28 All the
court has to do is to pronounce that the government or other
defendant should not engage in certain activities. For this reason, the
prohibitory interdict is considered to be less intrusive in separation of
powers terms.
Mandatory interdicts
A mandatory interdict is expressed in positive terms: It requires the
person to whom it is directed to undertake positive steps to remedy a
wrongful state of affairs for which he or she is responsible. It could
also require such person to do something which he or she ought to do
if the complainant is to enjoy his or her rights. 29 The mandatory
interdict is appropriate as a means of enforcing both the negative and
positive obligations engendered by socio-economic rights. But what
25 Harms (n 13 above) 289. This should be distinguished with the approach of the
Canadian courts which requires the plaintiff to prove that there is a strong
probability, upon the facts, that grave damage will accrue from the violation. See
Operation Dismantle Inc v Canada [1985] 1 SCR 441. However, ‘strong probability’
and ‘grave damage’ appear to put the requirements at an unreasonably high
level. It should be enough that the contemplated harm amounts to violation of
the constitution and is based on reasonable apprehension.
26
Jones & Buckle (n 4 above) 94.
27 Harms (n 13 above) 286.
28 Berryman (n 4 above) 40.
29
Jones & Buckle (n 4 above) 90. See also Sikuza v Minister of Water Affairs and
Agriculture and Another [2001] JOL 8486 (Tk) 2.