In the recent Supreme Court of Appeal case, Equistock Properties 8 (Pty) Ltd and Another v Oosthuizen and Others [2025] ZASCA 06, Hughes JA, writing for a unanimous bench, set out the requirements for the obtaining of a final interdict. In his opinion such requirements are now trite, and are as follows:
- a clear right on the part of the applicant must be shown;
- an injury actually committed or reasonably apprehended must be shown; and
- the absence of any other satisfactory remedy must be shown.
Hughes JA went on to state that in respect of “a clear right”, it is established law that “the applicant must prove the right it seeks to protect on a balance of probabilities”. Further, whether the applicant has such a right “is a substantive law question”, but “whether it has been established is an evidential question”.
Hughes JA then dealt with the issue where the “clear right” is genuinely in dispute in opposed application proceedings: in such cases, he stated that the applicant can only succeed if the facts averred by the respondent, together with the facts in the applicant’s affidavits, which the respondent admits, establishes the right. This is a restatement of the Plascon-Evans Rule which was not however referred to specifically by the judge.
The Contention
In the matter before the Court an unusual factual situation prevailed: the applicant had purchased a property and had entered into an agreement with certain of the respondents (who were family members) in terms of which these respondents would manage the property and both collect the rent and pay all expenses for their own account. The applicant, being the owner, was content therefore to be in the situation that only capital appreciation would accrue to it and all other accruals and expenses would be for the benefit or loss of the said respondents. The applicant now averred that it had a clear right to the rental received and that accordingly the first provision necessary for the issue of an interdict was satisfied.
The Court of Appeal disagreed with this contention. Even though as a general proposition the owner of a property is entitled to collect the rental derived from the property, this right does not follow axiomatically. The Court found that there was sufficient evidence which satisfied the Court that in the case before it the relevant respondents were entitled to collect the rent on the basis that they paid all expenses.
The Court considered the facts supporting the agreement and concluded, effectively applying the Plascon-Evans Rule, that notwithstanding the unusualness of the agreement between the parties, there was such an agreement and that the respondents (and not the applicant) had established, on the papers before the Court, “a clear right”.
The application for the interdict was accordingly refused.
An interesting aspect of the case was the award by the Court against a purported director (Coetzee) of the applicant of costs to be paid by Coetzee in his personal capacity. The Court found that Coetzee in the founding affidavit supporting the application had made statements of which he had no personal knowledge and that he was generally untruthful in his approach to the Court. The order against Mr Coetzee was to pay the costs of the appeal, including the costs of two Counsel.