BOADI v BOADI & ANOR 1992 (2) ZLR 22 (H)

Flynote

Civil procedure — interim interdict — when court will grant

Headnote

The applicant and the first respondent had been married. Whilst they were married the first respondent acquired certain property in Zimbabwe and the property was registered in the name of the first respondent. The parties subsequently got divorced. The applicant claimed that he was entitled to a division of or share in the matrimonial property, including the property acquired by the first respondent in Zimbabwe.

The applicant sought a permanent interdict against the first respondent to prevent her from disposing of the property in Zimbabwe without his consent.

Held, that a final interdict could only be ordered if the applicant has a clear right, there had been actual injury or there is reasonable apprehension of injury and there is no other remedy available. For a final interdict it is not sufficient to establish merely a prima facie right unless there is a likelihood of irreparable harm being suffered if relief is not granted.

Held, further, that the court has a discretion to grant the extraordinary remedy of an interim interdict. In deciding whether to grant this remedy, the court will balance the prejudice to the applicant if the interdict is withheld against the prejudice to the respondent if it is granted.

Held, that in the present case the applicant had established a prima facie right to a share in the property concerned and a well-grounded apprehension of irreparable injury. On the other hand, the first respondent would suffer no prejudice if the interdict were granted for a limited period. The balance was therefore in favour of granting the interim interdict and thus the court ordered accordingly.

Held, as to the costs, that each party should bear its own costs as the first respondent may well not have opposed the application if the applicant had sought only an interim interdict instead of a permanent interdict.