Olympic Passenger Service (Pty) Ltd v Ramlagan

• Jurisdiction: South Africa
• Judge: Holmes J
• Judgment Date: 17 September 1956
• Citation: 1957 (2) SA 382 (D)
• Hearing Date: 10 September 1956
• Court: Durban and Coast Local Division

Holmes, J.:

The applicant company avers that it is the owner of a bus, and that the respondent unlawfully removed the bus from the possession of its servant, J. Budhree, and is using it for transport purposes. H Accordingly the applicant seeks an order for restoration of the bus, or such other relief as the Court deems meet and just.

The respondent avers that the bus was originally his, that he sold it to Budhree, and that he re-possessed it by consent when Budhree failed to pay the balance of the price.

Faced with such a stark conflict of fact, the Court cannot on affidavit proceedings order the return of the bus. The matter must go to trial.

Holmes J

The question then arises whether the Court can on these papers grant the applicant any lesser or interim relief. In a proper case the Court could interdict a respondent from using or alienating the thing claimed, pending the outcome of the action. Is the present case one proper for such relief?

A In Setlogelo v Setlogelo, 1914 AD 221 at p. 227, INNES, C.J., that great master of clarity and conciseness, had this to say about interdicts:

'The requisites for the right to claim an interdict are well known; a clear right, injury actually committed or reasonably apprehended, and the absence of similar protection by any other ordinary remedy . . . The argument as to irreparable injury being a condition precedent to the B grant of an interdict is derived probably from a loose reading in the well-known passage in van der Linden's Institutes where he enumerates the essentials for such an application. The first, he says, is a clear right; the second is injury. But he does not say that where the right is clear the injury feared must be irreparable. That element is only introduced by him in cases where the right asserted by the applicant, though prima facie established, is open to some doubt. In such cases he says the test must be applied whether the continuance of the thing against which an interdict is sought would cause irreparable C injury to the applicant. If so, the better course is to grant the relief if the discontinuance of the act complained of would not involve irreparable injury to the other party.'

It thus appears that where the applicant's right is clear, and the other requisites are present, no difficulty presents itself about granting an interdict. At the other end of the scale, where his prospects of D ultimate success are nil, obviously the Court will refuse an...