Webster v Mitchell

• Jurisdiction: South Africa
• Judge: Clayden J
• Judgment Date: 18 December 1947
• Citation: 1948 (1) SA 1186 (W)
• Hearing Date: 10 December 1947
• Court: Witwatersrand Local Division

Clayden, J.:

This is not a case where the applicant for an interim interdict shows a clear right to that relief. But such an interdict

Clayden J

can be obtained even though a clear right is not shown. In Setlogelo v Setlogelo (1914 AD 221, at p. 227), INNES, J.A., dealing with the need to show irreparable harm as set out by van der Linden, says:

'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 a case he says the test must be applied whether the continuance of the thing against which an interdict is sought would cause irreparable injury to the applicant. If so, the better course is to grant relief if the discontinuance of the act complained of would not involve irreparable injury to the other party.'

This principle was followed and applied in Treasure Trove Diamonds, Ltd v Hyman (1928 AD 464, at pp. 479 - 480). In Molteno Bros v South African Railways (1936 AD 321), the Court refused to grant an interim interdict; the reasons of the learned judges who decided the case differed. WESSELS, C.J., held that the information before the Court was inadequate to show likelihood of damage. CURLEWIS, J.A., held that a 'prima facie case of reasonable apprehension of damage was made out', but considered that the possibility of damage to third parties required the refusal of the interdict. DE VILLIERS, J.A., concurred in the judgment of the CHIEF JUSTICE, and then referred to van der Linden and Setlogelo's case and said at p. 332:

'It is sufficient for the appellants to establish a case founded upon 'the greatest probabilities', that is to say, to bring prima facie proof of right.'

He then discussed whether they had produced prima facie proof, decided that they had not, and concluded:

'On all these points the appellants have shown a possibility or perhaps even a slight degree of probability, but not a sufficient probability to establish a prima facie case.'

I do not read these words as requiring that an applicant for an interim interdict must show a balance of probabilities in his favour. Setlogelo's case did not so decide and was being followed. And in the case to which the words were applied the respondent had put before the Court on the issue concerned merely a bare denial, so that the learned judge was concerned not with the probabilities between two contradictory versions, but with whether the inherent probabilities of the appellant's case were such that the right was prima facie established.

One other Appellate Division case must be referred to as showing what is meant by prima facie establishment of a right. In Nienaber v Stuckey (1946 AD 1049), the Court was concerned with an application for a spoliation order. GREENBERG, J.A., giving the

Clayden J

judgment of the Court, approved of the statement of the law in Burnham v Neumeyer (1917 TPD 630), that an applicant for a spoliation order,

'must make out not only a prima facie case, but he must prove the facts necessary to justify a final order',

and continued at p. 1053/4:

'Although a spoliation order . . . merely orders that the status quo be restored, it is to that extent a final order and the same amount of proof is required as for the granting of a final interdict, and not a temporary interdict. . . . At this stage it is sufficient to say that the appellant must satisfy the Court on the admitted or undisputed facts by the same balance of probabilities, as is required in every civil suit, of the facts necessary for his success in his application.'

This case indicates that the 'prima facie establishment' of a right calls for less than a balance of probabilities, that the temporary interdict can be granted where less is shown than the proof which would entitle the applicant to judgment at the trial.

There are many cases in which the Courts have held that an applicant who shows a balance of probabilities in his favour is entitled to an interim interdict; see, for example, Potgietersrust Hospital Board v Simons (1943 TPD 269 at p. 275). But such decisions do not involve the contrary; that if there is not a balance of probabilities in favour of the right it is not prima facie established. In Newmarket Fisheries and Provision Stores, Ltd v...