LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

The structural interdict 173
access to the Court is through fresh litigation. 41 It therefore remains
that the power of a mandatory order cannot be compared to that of
a declaratory order.
Interim interdicts
The interdict has gained prominence as an interim remedy because of
the impossibility of using the traditional public law remedies as a
means of interim relief. In this respect, the interim interdict, granted
on an interim basis, becomes handy. The interim interdict can be
granted at any time of the proceedings if the circumstances warrant.
It can even be granted without notice to the defendant. 42 The interim
interdict, just as other interlocutory remedies, provides one possible
way to combine individual and distributive or systemic relief. 43 The
interim interdict can be used to accord individual protection to
litigants in the case while seeking a remedy that may have a
distributive effect as the final order of the case. However, this can
only be done with respect to protection against negative and not
positive violations. It is easily available in those cases where the
applicants, for instance, require that the government be restrained
from taking away an existing right until a final decision is made. An
example is an order sought in an eviction case to maintain the status
quo and prevent irreparable harm that would result from the eviction.
This, though, does not mean that there could be no circumstances
under which an interim order can be made to compel affirmative
action such as the interim provision of services.
For an interim interdict to be granted in South Africa, a litigant
must prove the following:
(a) that the right which is the subject matter of the main action and
which he/she seeks to protect by means of interim relief is clear or, if
not clear, is prima facie established, though open to doubt;
(b) that, if the right is only prima facie established, there is a wellgrounded
apprehension of irreparable harm to the applicant if the
interim relief is not granted and he[/she] ultimately succeeds in
establishing his/[her] rights;
(c) that the balance of convenience favours the granting of interim
relief; and
41 See D Bilchitz Poverty and fundamental rights: The justification and enforcement
42
of socio-economic rights (2007) 150.
Berryman (n 4 above) 13. He also associates the popularity of the interim
interdict to the ability to get a preliminary trial of the disputed merits which may
43
assist in reaching a settlement before the case goes to trial.
Roach (n 30 above) 121.