MACNEIL & ANOR v HASKINS 2003 (2) ZLR 334 (H)

Flynote

Practice and procedure — provisional order — interim relief — interdict pendente lite — criteria — prima facie case shown

Headnote

The applicants sought an order that a partnership existed between the parties in relation to a stand and improvements thereon in the Hwange district. Pending final relief, they sought an interim interdict preventing the respondent from (1) selling or otherwise alienating the property and (2) occupying, using or benefitting from the use of the property.

Held, that the applicants were at this stage seeking an interdict pendente lite, the purpose of which is the preservation of the status quo, or the restoring thereof, pending the final determination of the parties' rights. It does not affect or involve the final determination of the parties' rights of such rights. In an application for an interim interdict the applicant has to establish a prima facie case on a balance of probability. Once the applicant succeeds in establishing a prima facie case then the court has no discretion whether or not to grant the provisional order sought.

Held, further, that in an application for such an interdict, the first issue to determine is whether the applicant has established existence of a clear right. To do so, the applicant must show:

• (1) an infringement of his rights by the respondent, or at least a well grounded apprehension of such an infringement, and

• (2) the absence of any other satisfactory remedy, and

• (3) that the balance of convenience favours the granting of an interlocutory interdict (though where they can establish a clear right together with (1) and (2) they would be entitled to claim a final interdict).

Held, further, that the applicants had established a prima facie case on a balance of probabilities; and that they were entitled to an interim interdict restraining the respondent from selling or alienating the property, but no more, pendente lite.