PHILIPS ELECTRICAL (PVT) LTD v GWANZURA 1988 (2) ZLR 117 (HC)

Flynote

Practice and procedure — interdict — interim interdict granted prohibiting publication of defamatory matter — final interdict applied for on notice of motion — material disputes of fact on papers before Court — balance of interests in favour of petitioner — interim interdict extended until further order of Court.

Costs — incorrect procedure followed — final order an indulgence on part of Court — costs awarded against successful party.

Headnote

Following a dispute with the petitioner, his former employer, the respondent published letters defamatory of the petitioner, who applied for and obtained a rule nisi which operated as a temporary interdict and called on the respondent to show cause why a final order should not be made requiring the respondent to abstain from publishing any other matter defamatory of the petitioner. On the return day, the respondent did not deny publishing defamatory material, but raised the defence of justification.

Held, that the elements necessary for the granting of a temporary interdict are:

• (a) a prima facie right;
• (b) a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is granted;
• (c) that the balance of convenience favours the granting of an interim interdict; and
• (d) that the applicant has no other satisfactory remedy.

For the granting of a final interdict, however, the applicant must show that he has a clear right of action against the respondent; and as there was a dispute of fact in the present matter which could not be resolved on the papers a final interdict could not be granted.

Held, further, that this did not preclude the Court from granting relief other than that actually sought. The Court had four courses available:

• (1) to discharge the rule nisi;
• (2) to order the petitioner to go to trial;
• (3) to order oral evidence to be taken; or
• (4) to continue the interim interdict until a further order of the Court.

To discharge the rule would be arbitrary and smack of expedience rather than justice. To proceed afresh by way of trial action would be unnecessarily time-consuming, possibly undesired, and an additional and unwarranted expense.

Held, further, that prima facie the petitioner's rights had been infringed and the mere pleading of a defence by the respondent was not sufficient to avoid the granting of an interdict. On the question of whether there was a well-grounded apprehension of irreparable harm if the interim relief was not granted, the potential harm to the petitioner could be considerable and irreparable, whereas that to the respondent was, at best, negligible. Finally, where an injury which could give rise to a claim in law is apprehended, the potential victim is not compelled to wait for the damage and sue afterwards for compensation, but can move the court to prevent any damage being done. Balancing the interests of the petitioner against those of the respondent, the petitioner's interests far outweighed the respondent's. It was, therefore, both desirable and necessary to continue the interim interdict until a further order of the Court.

Held, further, that as the petitioner had adopted the wrong procedure and as it had been granted an indulgence in terms of the order made, it should bear the costs of the proceedings.