Interim Interdict Requirements In South Africa

The requirements for an interim interdict are trite and can be briefly summarized as follows: a prima facie right even though open to some doubt; a well-grounded apprehension of irreparable harm if the interim relief is not granted; that the balance of convenience favours the granting of an interim interdict; and the lack of another satisfactory or adequate remedy in the circumstances.

Prima facie right even though open to some doubt.

The question is whether the applicant has, despite his suspension, shown that he has a right to be allowed to resume his duties as Municipal Manager. The suspension of an employee is a prerogative of an employer. Before doing so, the employer must consider whether the presence of the employee concerned at workplace is undesirable regard being to the nature and seriousness of the allegations against him, whether there is likelihood that he may jeopardise the integrity of the investigation or pose danger at workplace.

Generally it is the duty of an employee when rendering his services to act exclusively in the interests of the employer. Therefore his conduct when rendering services should never result in him promoting his private interests or other person’s interests.

An employee has a duty to give full and conscientious effect to the employer’s lawful and reasonable instructions and not frustrate and thwart legitimate instructions. The applicant is a senior manager and ought to set an example to other employees. He deliberately refused to obey the instruction on the basis that it was unlawful.

As pointed out above the lawfulness or otherwise of the instruction remains to be decided on review. In my view whilst he is still on suspension and whilst the validity of that suspension is still to be determined the applicant has no right to be allowed to go and perform his duties.

Lest it be said that there are prospects of success on review and therefore the applicant has shown a prima facie right which needs protection pending that review, I can put it no better than the constitutional court where it was stated thus:

A well-grounded apprehension of irreparable harm if the interim relief is not granted.

In the founding affidavit the applicant argues that until his right not to be unlawfully suspended is determined and if the status quo remains the first respondent will perpetuate its unlawful conduct. He contends that he is currently in a situation of harm and it is foreseeable that the same will continue indefinitely unless this court intervenes.

This contention loses sight of the fact that the suspension is not indefinite. It is for three months. In the charge sheet there are charges relating to misuse of funds and abuse of power. The applicant being in a senior position may jeopardies the disciplinary process having unlimited access to the records of the first respondent. I am not persuaded that he may suffer irreparable harm if the interim interdict is not granted.

The balance of convenience

In National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) it was said: “(w)hen a court weighs up where the balance of convenience rests, it may not fail to consider the probable impact of the restraining order on the constitutional and statutory powers and duties of the state functionary or organ of state against which the interim order is sought.

The learned Judge delivering the majority judgment went on and said: “While a court has the power to grant a restraining order of that kind, it does not readily do so, except when a proper and strong case has been made out for the relief and, even so, only in the clearest of cases.”

The general rule is that the employer has the right to control and direct how, when and where the services are to be rendered by its employees. The employee’s duty to obey lies at the heart of the employment relationship.

Obedience implies discipline, discipline implies rules, and rules, to be effective, imply the power to impose sanctions on those who break them. The court has no right to tell the employer to
allow its employees to perform their duties. That function falls within the ambit of employer’s obligation. If the employer acts contrary to its prescripts the employee has different remedies depending on the nature of the transgression by its employer.

The courts will refrain from entering into the domain of the exercise of power by an employer unless it is shown that intervention is necessary. In this case the first respondent is permitted by both the contract of employment and legislation to suspend its employees under certain circumstances
such as gross insubordination.

Lack of another satisfactory or adequate remedy.

It has not been argued that there is no other satisfactory remedy for the applicant to warrant the grant of the interim interdict. In the light of the above it is unnecessary to make a finding in this regard. In my view the applicant has not satisfied the requirements of an interim
interdict and his application cannot succeed.

What remains is the question of costs. The general rule is that costs must follow the result. Nothing emerges from this matter warranting a deviation from this principle. In the result I make the following order

How long does an interim interdict last?

Where an interim attachment is executed this will have effect for six months or until it is recalled. If the action against the defender fails, then this will also cause the interim attachment to end. An interim interdict continues until it is recalled or until the action is finally disposed of.