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ORDER
1. The interim interdict granted against the first respondent in paragraphs 3 and 4
of the court order o f 31 August 2022 under the abovementioned case number
is discharged .
2. The applicants shall jointly and severally pay the first respondent’s costs of this
application , including costs of counsel on scale B.
JUDGMENT
BESTER AJ:
Introduction
[1] This matter involves yet another dispute amongst children over the spoils of
their late father’s toils. The two applicants and the first respondent are the daughters
of the late Armando Januario Bran co Augusto. Upon his passing in 2007, the Diplomat
Hotel (“the Hotel”) , which he owned personally, was placed in trust for the benefit of
his family.
[2] At the commencement of this litigation, the first respondent was a trustee of
that trust, the Masakhane Trust , and cited in that capacity as the second responde nt,
together with the other trustees as third and fourth respondents . The fourth
respondent is the late Mr Augusto’s widow.
[3] The applicants obtained an interdict against the first respondent prohibiting her
from interfering with the business of the Hotel, pending the determination of the
application for her removal as trustee and obtaining a final interdict against the first
respondent in terms similar to the interim order.
[4] The first respondent launched thi s application to have the interim interdict set
aside on several grounds.
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Background
[5] In August 2022, the applicants brought an urgent application under this case
number in which they sought the following final relief:
“2. Ordering the First Respondent to be forthwith removed as trustee of the
Masakhane Trust, a trust duly registered with the Master of the High
Court with Master ’s Reference: IT523/06 (“the Trust”);
3. Interdicting and restraining the First Respondent from conducting,
appropriating and int erfering with the business of the Trust, being the
hotel known as the Diplomat Hotel (“the hotel”) situated at the corner of
Klein and Bree Street, Johannesburg;
4. The aforementioned interdict includes but is not limited to the First
Respondent appropria ting the hotel’s brand, goodwill (inclusive but not
limited to existing clientele), employees, and/or assets;”
[6] At the hearing of the matter, the applicants changed their approach to the
application from the Bar and m oved for an i nterim interdict pending the hearing of the
application for final relief.
[7] On 31 August 2022, the applicants obtained a court order in the following terms:
“1. Save for what is set out below, the application under the above case
number is postponed to a d ate to be determined by the Registrar.
2. The Applicants’ non -compliance with the forms and service provided for
in the Uniform Rules of Court is hereby condoned, and the application is
enrolled and heard as an urgent application under Rule 6(12)(a).
3. Pending the final determination of the application under the above case
number on a date to be determined by the Registrar, the first respondent
is:
3.1. prohibited from acting contrary to her fiduciary duties as a trustee
of the Masakhane Trust, a trust d uly registered with the Master
of the High Court with Master’s Reference: IT23/6;
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3.2. interdicted and restrained from conducting, appropriating or
interfering, directly or indirectly and whether personally or
through a separate juristic person or a third party, with the
business known as the Diplomat Hotel (“the Hotel”), situated at
the corner of Klein and Bree Street, Johannesburg.
4. The aforementioned interim interdict includes but is not limited to the first
respondent appropriating the Hotel’s bran d, goodwill (inclusive but not
limited to existing clientele), employees, and/or assets.
5. The applicants are granted leave to supplement their answering affidavit
within 15 days of delivery of the applicants’ supplementary founding
affidavit.
7. The appl icants are granted leave to deliver a supplementary replying
affidavit within 5 days of the delivery of the respondents’ supplementary
answering affidavit.
8. Costs reserved.”
[8] On 4 October 2023, the first respondent resigned as a trustee of the Trust.
[9] Since procuring the interim interdict against the first respondent, the applicants
have taken no further steps to have their application finally determined. On 29
November 2023, t he first respondent launched this application to have the interim
interdict set aside. By then, 15 months had passed since the order was obtained.
When her application was heard, a further nine months had elapsed. Even when
confronted with the application to have the interim interdict set aside, the applicants
refrained from pu rsuing the finalisation of their application for final relief.
[10] Although the applicants have not pursued their application to finality, the parties
were not idle. The court file has become cumbersome, with both sides having
launched interlocutory and ancillary applications . The applicants have also
commenced litigation against other individuals , which remains pe nding.
[11] In the light of the propositions advanced by the parties and the view I take of
the matter, it is not nec essary to traverse the details of these application s, nor is it
necessary to delve into the facts underlying the main application.
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The parties’ contentions
[12] The first respondent advances several reasons why the interim interdict should
be set aside:
a) The o rder no longer serves any purpose.
b) The interdict has been in place for an inordinately long time in
circumstances where the interim interdict does not achieve the purpose which
the applicants intended it to have.
c) The interim interdict is prejudicial to the first respondent.
d) The applicants have no intention of pursuing their application to finality.
[13] The applicants, in turn, contend that the re is no need to pursue the application
to finality because the interim order had become final. They argue that this is a
consequence of the first respondent having resigned as a trustee of the Masakhane
Trust.
Interim and final interdicts
[14] An interdict prohibits or compels the doing of a particular act in protection of a
legally enforceable right which is threatened by continuing or anticipated harm.1 For
practical reasons, interdicts may be granted in two forms : final or temporary relief. Th e
distinction lies at the heart of this matter .
[15] As any legal practitioner learns rather quickly in practice, situations often ari se
where conduct must be stopped or be insisted upon within time frames that do not
allow for the ventilation of a matter in the ordinary course at trial or o n motion. In these
circumstances, interim relief may be obtained.
1 United Democratic Movement and Another v Lebashe Investment Grou p (Pty) Ltd and Others 2023 (1) SA 353
(CC) (UDM) in para 47.
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[16] Interim interdicts are , therefore, always obtained pending further court
proceedings and are generally sought in urgent court.
[17] The tests laid out in Setlogelo2 have withstood Constitutional C ourt scrutiny .
The requirements for a final interdict are (a) a clear right, (b) an injury actually
committed or reasonably apprehended, and (c) the lack of an adequate alternative
remedy.3
[18] The requirements for an interim interdict are (a) a prima facie right that migh t
be open to doubt; (b) a reasonable apprehension of irreparable and imminent harm to
the right if the interdict were not granted; (c) the balance of convenience favourable
too the grant of the interdict; and (d) the absence of any other adequate remedy.4
[19] A party must prove its case on a balance of probabilities to obtain a final
interdict , as in any other civil matter . A final interdict may be obtained on application
if it passes the Plascon -Evans test.5 Thus , where a dispute of fact has arisen on the
affidavits in motion proceedings –
“... A final order, whether it be an interdict or some other form of relief, may be
granted if those facts averred in the applicant’s affidavits , which have been
admitted by the respondent, together with the facts alleged by the respondent,
justify such an order. The power of the court to give such final relief on the
papers before is not confined to such a situation. In certain instances , the denial
by respondent of a fact alle ged by the applicant may not be such as to raise a
real, genuine or bona fide dispute of fact. ...”6
[20] A different approach is follow ed when a party applies for an interim interdict, as
set out in Webster7 and refined in Gool8. To determine whether an applicant has
2 Setlogelo v Setlogelo 1914 AD 221.
3 Setlogelo above at 227; Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC) in para 8.
4 Setlogelo above at 227; Tshwane City v Afriforum and Another 2016 (6) SA 279 (CC) in para 4 9.
5 Plascon -Evans Paints Limited v Van Rie beeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
6 Plascon -Evans above at 635 H – I.
7 Webster v Mitchell 1948 (1) SA 1186 (W) at 1189 .
8 Gool v Minister of Justice and Another 1955 (2) SA 682 ( C) at 688E.
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established a prima facie case though open to some doubt , the court would approach
the matter as follows:9
“The proper manner of approach I consider is to take the facts as set out by the
applicant, together with any fac ts set out by the respondent which the 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 in contradiction by the respondent s hould then be considered. If
serious doubt is thrown on the case of the applicant he could not succeed in
obtaining temporary relief.10
[21] There is a stark distinction between what an applicant requires to obtain a final
interdict and an interim interdict. More importantly, the two enquiries pertain to
different disputes, as pointed out by the Constitutional Court in National Gambling
Board11:
“[49] An interim interdict is by definition
'a court order preserving or restoring the status quo pending the final
determination of the rights of the parties. It does not involve a final
determination of these rights and does not affect their final
determination.'
The dispute in an application for an interim interdict is therefore not the same
as that in the main appli cation to which the interim interdict relates. In an
application for an interim interdict the dispute is whether, applying the relevant
legal requirements, the status quo should be preserved or restored pending the
decision of the main dispute. At common l aw, a court's jurisdiction to entertain
an application for an interim interdict depends on whether it has jurisdiction to
preserve or restore the status quo. It does not depend on whether it has the
jurisdiction to decide the main dispute. ”
[22] Our courts are thus careful to ensure that interim relief remains just that –
temporary relief pending a court’s final decision on the parties’ rights. It is for this
9 Webster above.
10 Gool above considered that the phrase ‘ could not succeed’ should read ‘ should not succe ed’.
11 National Gamb ling Board v Premier, KwaZulu -Natal and Others 2002 (2) SA 715 (CC) in para 49, quoting LTC
Harms in Joubert (ed) The Law of South Africa first reissue Vol. 11 para 314.
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reason that where an interim interdict is obtained pending the resolution of a dispute
at trial, the int erdict is not only stipulated to be in place until the action has been
determined but typically would also provide the applicant a specific period (in this
division typically 30 days) within which to serve its summons , failing which the interim
relief will automatically lapse . This ensures that the prospective plaintiff acts timeously
and avoids unnecessary applications to court to discharge interim orders because an
applicant has not pursued the final determination of their rights.
[23] An applicant often claim s final relief on application on the same papers relied
on to obtai n interim relief. In those instances, the interim interdict is granted until the
application is finally determined , and there is no need to create a mechanism to ensure
that an appli cant brings their application.
[24] What then of the instance where an applicant does not pursue their application
for final relief ? Although it is open to a respondent to take the necessary steps to
ensure the application is finally determined, that is not their only recourse.
[25] The Constitutional Court has stated the legal position succinctly in UDM12:
“... It has always been open to the applicants to approach the High Court for the
discharge of the impugned interim order on the grounds of changed
circumsta nces, discovery of further evidence and that the impugned interdict
has endured longer than it was anticipated. It therefore follows that the
impugned interim order is capable of being reconsidered by the High Court
which issued it.”
[26] The first respondent ’s application must be considered within this legal
framework.
The applicant s’ position and the consequences thereof
[27] In her founding affidavit, the first respondent seeks the inference to be drawn
that the applicants are no longer interested in pursuin g the application to finality. She
based this conclusion on the applicants ’ failure to take any further steps in pursuit of
12 UDM above in para [44].
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the application despite the lapse of a substantial period. The applicants contend that
they initially waited for the hearing and o utcome of the first respondent's application
for le ave to appeal the interim order, which was dismissed, and that they had run out
of money to fund the litigation. Little detail is provided in this regard, but it is not
necessary to consider these aspects because of the position the applicants take in
their answering affidavit.
[28] The first applicant states: -
“... there exists no further issue to be pursued in terms of the existing original
application and order. The only outstanding issue (at the time) in the existing
order was for the court to decide whether Respondent is to be removed as
trustee of the Masak hane Trust . She has now resigned.”
[29] The statement is repeated a further three times, the last of which reads:
“The Order by Strydom J, referred to interim relief, has now reached its
conclusion, as the only issue standing over from the original Notice of M otion
was achieved when Respondent resigned from the trust.”
[30] In Eke13, the Constitutional Court approved the formulation of the well-
established test on the interpretation of court orders in Finishing Touch14: -
“The starting point is to determine the manifest purpose of the order. In
interpreting a judgment or order, the court’s intention is to be ascertained
primarily from the language of the judgment or order in accordance with the
usual well-known rules relat ing to the interpretation of documents. As in the
case of a document, the judgment or order and the court’s reasons for giving it
must be read as a whole in order to ascertain its intention.”
[31] There is nothing contentious about the meaning of the interim order . The
interdict was granted pending the final determination of the application . Two issues
were not determined at the interim stage and, therefore, postponed for hearing in the
13 Eke v Parsons 2016 (3) SA 37 (CC) in [29].
14 Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Limited and Others 2013 (2) SA 204 (SCA)
in [13].
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ordinary course, in accordance with paragraph 1 of the inte rim order: the prayer for
the removal of the first respondent as trustee of the Masakhane Trust, claimed in
paragraph 2 of the notice of motion, and the prayer for a final interdict against the first
respondent, claimed in paragraph 3 of the notice of moti on.
[32] Upon the resignation of the first respondent as trustee the relief sought in
paragraph 2 of the notice of motion could no longer be pursued. However, the
answering affidavits identified this as the only issue that stood over and contended
that, for that reason, it is not necessary to pursue the application further. Because the
answering affidavit was silent on the interdict, I enquired about the applicants’ position
on this issue from Mr Broodryk, who appeared for them. He submitted that the interi m
order became final upon the first respondent’s resignation as trustee. He could not
provide me with any authority to support his contention, nor could he substantiate it
with argument.
[33] The interim interdict was granted until both the issue of the remo val and the
issue of a final interdict had been finally determined. Hence, if the need for one of
those two issues falls away, the interim order will remain in place pending the
determination of the other. If the only issue that had to be determined was the first
respondent’s removal as trustee , as the answering affidavit contends, then the need
for the interim interdict ended when that relief was no longer required – on the
resignation of the first respondent. In those circumstances , the applicants should have
agreed that the first respondent may apply for the discharge of the interim order .
[34] The interim interdict was also granted pending a determination of whether a
final interdict should be granted . The applicants seem to take the stance that thi s relief
became obsolete because the interim interdict became final upon the first
respondent’s resignation as trustee .
[35] An interim interdict cannot transform into a final interdict by the inaction or
choice of the party who obtained the interdict in the first place. As pointed out above,
the dispute when considering an application for an interim interdict is not the same as
for a final interdict . The first respondent has not had the opportunity to be heard on
the issue of whether a final interdict should be granted. This breach es the audi alteram
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partem principle, which requires everyone to be heard before a final decision is taken
against them. It is a fundamental principle of fairness that should underl ie any just
and credible legal order.15
[36] The applicants do not intend to pursue a final interdict, and the removal of the
first respondent as trustee is no longer necessary. The purpose served by the interim
interdict, to maintain the status quo pending the determination of the parties’ rights, is
therefore no longer served. In these circumstances , the current situation is unfair and
prejudicial to the first respondent. The first respondent is entitled to have the interim
interdict discharged.
[37] I mention that the first respondent sought to set aside the interim order. Setting
aside the order would be effectiv e as if the order was never granted. That is not the
appropriate order. The interim order should be discharged ; that is, it should be
terminated at this time because of the changed circumstances. The first respondent
made a case for discharge despite the formulation of her relief.
Conclusion
[38] In the circumstances , the interim interdict should be discharged . There is no
reason why the costs should not follow the result.
[39] I therefore make the following order:
a) The interim interdict granted against the first respondent in paragraphs 3
and 4 of the court order o f 31 August 2022 under the abovementioned
case number is discharged .
b) The app licants shall jointly and severally pay the first respondent’s costs
of this application , including costs of counsel on scale B .
15 Minister of the Interior v Bechler and Others; Beier v Minster of the Interior and Others 1948 (3) SA 409 (A) at
451; Masetlha v President of the Republic of the South Africa and Another 2008 (1) SA 566 (CC) in para 187
(minority judgment of Ngcobo J); Walele v City of Cape Town and Others 2008 (6) SA 129 (CC) in para 27.