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‘To reach the port …, we must sail sometimes with the wind and sometimes against it – but we must sail, and not drift, nor lie at anchor’ – Oliver Wendell Holmes Sr.
The expression, ‘fishing behind the net’, depicts metaphorically the predicament of a creditor who does not take steps to act speedily to curtail his potential loss.
An interdict in essence means to debar one from doing something or to order that something not be done. In essence, the object of an interdict is to protect an alleged existing right such that the interlocutory interdict maintains the status quo and ‘freezes’ the position until the court decides where the right lies, at which point it ceases to operate (CB Prest The Law and Practice of Interdicts (Cape Town: Juta 1996)).
As we began our day in court, undoubtedly, we are faced with interim interdicts of one sort or another. In such cases, we must consider the application and then decide whether to grant the relief sought. However, various factors come into play before we make such a decision.
This article is not intended to revolutionise interdicts or anti-dissipation orders but simply to reflect briefly on some of the case laws that helped in shaping the ‘character’ of interim interdicts in our courts.
‘You cannot get an injunction to restrain a man who is alleged to be a debtor from parting with his property’ (Cotton LJ in Lister v Stubbs (1890) 45 Ch. D. 1 at 14 in Professor G Jones ‘The rise of the Mareva injunction’ (11) 2 University of Queensland Law Journal 133 (https://classic.austlii.edu.au, accessed 11-6-2024)).
In English law, the decision by Cotton LJ became a principle of general application. However, as time progressed, this principle could not persist, particularly if the debtor is a person who has assets within the jurisdiction but is not a resident. The fears of the plaintiff that the debtor might quickly remove assets on receiving notice of a plaintiff’s claim. Subsequently, the English courts enjoined the debtor under such circumstances.
The Nippon Yusen Kaisha v Karageorgis and Another [1975] 3 All ER 282 case preceded the Mareva injunction. Briefly, the shipowner chartered a ship to the defendant, the charterer. A large sum of money was owed to the plaintiff (shipowner) and it was alleged that the charterer was in flagrant breach of the terms of the charter party. The plaintiff sought an injunction against the charterer who had assets or sufficient funds within the jurisdiction of the court in London. In the Court of Appeal, subsequent to a refusal in the court a quo, Lord Denning MR stated:
‘We are told that an injunction of this kind has never been done before. It has never been the practice of the English court to seize assets of a defendant in advance of judgment, or to restrain the disposal of them. … [T]he time has come when we should revise our practice. There is no reason why the High Court or this court should not make an order such as is asked for here.’
In Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyds Rep 509, shipowners leased vessels to charterers, on a voyage to India to deliver fertilizer. Having made two payments, the charterers defaulted on the third payment, despite receiving the full amount from the Indian Government, paid into a bank in London in favour of the charterers. The shipowners, fearing that the charterers would dispose of the funds in London, made an ex parte application to freeze the proceeds as part of their claim due to them.
Lord Denning unequivocally stated: ‘If it appears that [a] debt is due and owing, and there is a danger that the debtor may dispose of his assets so as to defeat it before judgment, the court has jurisdiction in a proper case to grant an interlocutory judgment so as to prevent [the debtor] disposing of those assets’ (K Alexander ‘The Mareva injunction and Anton Pillar order: The nuclear weapons of English commercial litigation’ (1997) 11 Florida Journal of International Law 487 at 493 (https://scholarship.law.ufl.edu, accessed 28-5-2024)).
In perhaps what I would refer to as profoundly indigenous, the lobola case precedes the Mareva injunction in preventing a plaintiff from being saddled with a ‘hollow victory.’
In Mcitiki and Another v Maweni 1913 CPD 684 at 686-687, the father (respondent) gave the hand of the daughter in marriage after the father of the son had given cattle as dowry (lobola).The daughter soon deserted and the father of the son brought an application to prevent the respondent from disposing of the 15 cattle and three horses pending the outcome of the litigation. The justification of granting the order was that there must not be injustice done to the plaintiff by leaving the debtor possessed with funds sufficient to satisfy the claim. This is especially when circumstances revealed that the debtor was busy ‘getting rid of such funds.’ It had come to the knowledge of the father of the son that the respondent had been moving stock from his kraal, presumably with the intention of hiding them (Commissioner for the South African Revenue Services v Moloto and Others [2023] 1 All SA 607 (GP)).
In essence, as eloquently stated by Hopley J in Maweni as follows:
‘The practice of this court is to do justice between people according to the circumstances that may arise. It has, of course, long been the practice of this court that if [the] respondent, although an incola, were in fuga, the court would in such circumstances restrain him from parting with certain property pending the result of an action; and that doctrine has been extended a little further where the respondent is a prodigal wasting his money or is purposely making away with funds although remaining an incola of the country, so that eventually when his creditor gets the judgment it may be a barren one; and, to use a graphic phrase in one of our old cases, when he went there with his writ of execution, such creditor would find he was “fishing behind the net”. It is to protect a bona fide plaintiff against a defeat of justice in such a case that such orders are given’ (my italics) (Mafusire J in Northern Farming (PvT) Ltd v Vegra Merchants (Pvt) Ltd t/a Vegra Commodities & Anor [2013] ZWHHC 328).
Perhaps the leading case in which the principles of an interim interdict has become grounded, is the well-known Setlogelo v Setlogelo 1914 AD 221. In Setlogelo, Innes JA, set out the requisites of the right to claim the interdict as ‘a clear right, injury actually committed or reasonably apprehended, and the absence of similar protection by any other ordinary remedy’ (at 227).
One of the earlier cases that culminated in Setlogelo is Du Plessis v Van Heerden 1912 CPD 796 at 800 where Buchanan J held:
‘The requirements necessary before an interdict is granted are laid down in Van der Linden’s Institutes, and have been frequently acted upon in this court. They are, first, a clear right on the part of the complainant; secondly, a thing actually done or a well-grounded apprehension thereof prejudicial to that right; and thirdly, that the applicant would otherwise be remediless’ (Prest (op cit) at 32).
In Du Plessis, the water from a fountain on H’s farm flowed to P’s farm for more than 30 years. H obstructed the flow in several ways preventing P access to the fountain. P claimed an interdict against H for interfering with P’s water rights.
The court, ‘[h]eld … on the evidence, sufficient proof of harm was not proved and the interdict was refused with costs, the parties being advised to settle this trivial matter’ (M Uys ‘Water Law of South Africa 1912-1998’ (www.wrc.org, accessed 17-6-2024)).
Following Van der Linden, adopting the idea of ‘clear rights’ and ‘rights that admit a doubt’ and the requirements for an interim interdict and perpetual interdict did not always manifest itself clearly. In Bester v Bethge 1911 EDL 18 at 19-20, Kotze JP held that:
‘One of these requisites is that the applicant shall have a clear right. Now what is meant by a “clear right”? … In some cases the right is indisputable … but there may be cases not so clear, and yet there may be such good prima facie evidence of a right as to justify the court in acting upon it’ (my italics).
Much later, in Webster v Mitchell 1948 (1) SA 1186 (W) at 1192-1193, Clayden J stated that;
‘the court acts on the balance of convenience. If there is greater possible prejudice to the respondent an interim interdict will be refused. … [I]f, though there is prejudice to the respondent, that prejudice is less than that of the applicant the interdict will be granted, subject, if they can be imposed, to conditions which will protect the respondent.’
The Webster case laid down the test as follows:
‘(a) a prima facie right even if it is subject to some doubt;
(b) a reasonable apprehension of irreparable and imminent harm to the right if an interim interdict is not granted;
(c) the balance of convenience must favour the granting of the interdict; and
(d) the applicant must have no other remedy’ (National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223 (CC)).
After a ‘rallying number’ of cases, in L F Boshoff Investments (Pty) Ltd v Cape Town Municipality; Cape Town Municipality v L F Boshoff Investments (Pty) Ltd 1969 (2) SA 256 (C) at 267B-D, Corbett J stated as follows:
‘(a) that the right which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear or, if not clear, is prima facie established, though open to some doubt;
(b) that, if the right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his rights;
(c) that the balance of convenience favours the granting of interim relief; and
(d) that the applicant has no other
satisfactory relief.’
There is little doubt that the Setogelo and Maweni cases, inter alia, have received the stamp of approval in our courts and continue to play an integral role in interdicts.
A Mareva injunction is simply a species of an interdict and does not prevent a respondent from dealing with his assets freely, particularly when the applicant cannot lay any claim. It is certainly not the purpose of the injunction to prevent a defendant from acting in the manner in which he would have acted in the absence of such a claim against him.
In Evoke Realty (Pty) Ltd v Augustine and Others (GJ) (unreported case no 2023-81925, 4-9-2023) (Moorcroft AJ), the first respondent was relocating to New Zealand and he was selling his house. He was not secreting assets to pay his debts and there was no intention of defeating the claims of creditors. Accordingly, the application for an anti-dissipation order was dismissed with costs.
Our courts have created a clear pathway for applications of interim interdicts. It is for the applicants to provide a clear case, which is good in law and of course, meeting certain requirements, entitling him to the relief sought.
The applicant, though, must not rest on his laurels but act speedily. In other words, to borrow from the United States Judge Levi Hubbell, the applicant must ‘fish or cut bait’ with the latter, being the delay, making him a casualty of his own recklessness, leaving him ‘fishing behind the net’.
Ganasen Narayansamy JP.ED (Springfield College of Education) SP.ED (UKZN) BCom BProc LLB Conveyancing and Notarial Practice (NDP) LLM (Unisa) is an additional magistrate in Queenstown.
This article was first published in De Rebus in 2025 (April) DR 22.
