LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

174 Chapter 6
(d) that the applicant has no other satisfactory remedy. 44
The right that the applicant for an interim interdict seeks to enforce
need not be shown on a balance of probabilities. 45 All that a court has
to do is to consider the facts as set out by the applicant together with
any facts set out by the respondent. If, with regard to the inherent
probabilities, the applicant would obtain final relief, then a prima
facie case would have been proved. 46
Proving whether the balance of convenience is in the applicant’s
favour requires the court to weigh the applicant’s interests against
those of the defendant. The court must weigh the prejudice that the
applicant will suffer if the interim interdict is not granted against the
prejudice to the respondent if it is. If there is greater possible
prejudice to the respondent, the interdict will be refused. 47
However, one of the factors to consider in the balancing process is the
prospects of success in the main action. ‘The stronger the prospects
of success, the less the need for the balance of convenience to favour
the applicant; the weaker the prospects of success, the greater the
balance of convenience to favour him[/her].’ 48 As with irreparable
harm, third party interests too may have to be weighed in the balance
of convenience. The court should focus beyond the interests of the
parties in order to be able to consider not only the polycentric case
but also the interest that society as a whole may have in the case.
Traditionally, irreparable harm has been considered as harm that
cannot be repaired with an award of damages. However, as submitted
in chapter five, 49 the inherent nature of human rights and the
intrinsic values they protect cannot be compensated for with
damages. 50 Indeed, it has been held that if the applicant can establish
44
See LF Boshoff Investments (Pty) Ltd v Cape Town Municipality 1969 2 SA 256 (C)
267A-F. See also The National Gambling Board v Premier of KwaZulu-Natal and
Others 2002 2 SA 715 (CC).
45
Prest (n 8 above) 52.
46 Joubert & Faris (n 13 above) 292. This is ‘based on the unreliability of making
determinations on ‘conflicting … evidence of substantive claims without the
benefit of detailed argument and in a climate of judicial haste’. Berryman (n 4
above) 22 49.
47 Prest (n 8 above) 72. See also Eriksen Motors (Welkom) Ltd v Protea Motors and
Another 1973 3 SA 685 (A).
48 Jones & Buckle (n 4 above) 98.
49 Sec 5.3.1.
50
Damages may not be equated to human dignity, to a lost opportunity to worship
one’s God, or to a missed opportunity to vote. See Dikoko v Mokhatla 2007 1 BCLR
1 (CC) (Mokhatla case) para 109. On this basis, one could submit that the
requirement of proving that irreparable harm would be suffered where human
rights are involved is not necessary.