Webster v Mitchell

• Jurisdiction: South Africa
• Citation: 1948 (1) SA 1186 (W)

Webster v Mitchell
1948 (1) SA 1186 (W)

1948 (1) SA p1186

Citation	1948 (1) SA 1186 (W)
Court	Witwatersrand Local Division
Judge	Clayden J
Heard	December 10, 1947
Judgment	December 18, 1947

Flynote : Sleutelwoorde

Interdict — Generally — Temporary interdict — When granted — Right prima facie established — Balance of convenience.

Headnote : Kopnota

In an application for a temporary interdict, applicant's right need not be shown by a balance of probabilities; it is sufficient if such right is prima facie established, though open to some doubt. The proper manner of approach is to take the facts as set out by the applicant together with any facts set out by the respondent which applicant cannot dispute and to consider whether, having regard to the inherent probabilities, the applicant could on those facts obtain final relief at a trial. The facts set up up in contradiction by respondent should then be considered, and if serious doubt is thrown upon the case of applicant he could not succeed.

In considering the harm involved in the grant or refusal of a temporary interdict, where a clear right to relief is not shown, the Court acts on the balance of convenience. If, though there is prejudice to the respondent, that prejudice is less than that of the applicant, the interdict will be granted, subject, if possible, to conditions which will protect the respondent.

Case Information

Application for an interdict. The facts appear from the reasons for judgment.

W. Oshry, for the applicant.

J v Brink, K.C. (with him, L. Pinshaw), for the respondent.

Judgment

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

1948 (1) SA p1187

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

1948 (1) SA p1188

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...