BERE J: When we adjourned yesterday I had asked
counsel to prepare heads of argument to give the court a broader and a more
informed perception of the issues that occupied all of us yesterday. Immediately the parties had left my chambers
and as I embarked on my crash research exercise, I realized I was able to come
up with a decision unaided by counsel.
I must emphasise though that, when
legal issues arise and or any other issues arise for deliberation before the
court our legitimate expectation is that legal practitioners being officers of
this court strive to retain their concomitant duties to both the court and
their clients. We do not wish legal
practitioners to do the work for us but merely to assist us arrive at just
decisions. It is not a question of
striving to get a favourable decision by hook or crook or through
unprofessional conduct. That avenue has
short lived benefits and will not add
value to the stature of any legal practitioner.
The thrust of Mr Chikumbirike's point in limine was that the applicants were not
on firm ground in bringing the interim interdict sought particularly against
the third and fifth respondents because they did not have a real right to
justify their action. He passionately
argued it was an elementary principle of our law that if one does not have a
real right he is incapacitated from initiating an action for an interim relief
as sought by the applicants.
Counsel for the first and second
respondents associated himself with the position adopted by Mr Chikumbirike. He elaborated on the position by suggesting that
the applicants being holders of personal rights could not bring the urgent
application they had sought before the court for determination.
Counsel for the applicants' position
was that the applicants' rights were under siege and were therefore entitled to
bring this action. He reasoned it was
for the benefit of all the parties involved that this matter be resolved. It was also his contention that the
applicants did not need to establish the existence of a real right against the
respondents in order to justify the granting of an interim interdict.
The legal position governing the
granting of interim relief in the form of interim interdict is not a subject of
speculation. It is settled law and the
elementary position is not as espoused by Mr
Chikumbirike and blindly supported by one Ronald Farai Mushoriwa for the first and second respondent. The practice of law is not a question of
guess work. It is an exercise that is rooted
in well established legal principles most of which have withstood the test of
time.
The requirements which an applicant
for interim relief must satisfy before he can be granted such relief and which
have been restated on countless occasions are as follows:-
The applicants in this case must
satisfy the following:
“ a) that the right which has
prompted this urgent application and which they seek to
protect is clear
or if not clear is prima facie
established though open to some doubt;
b)
that if that right is only prima facie established, there is a well grounded apprehension of
irreparable harm to the applicants if the interim interdict is not granted and
the applicants ultimately succeed establishing their right.
c)
that the balance of inconvenience favours the granting
of interim relief in favour of the
applicants and
d)
that the applicants have no other satisfactory remedy”
See Airfield Investments (PRIVATE) Limited v The
Minister of Lands and 3 ors Jdt no SC 36/04 at p 9, L.F. Boshoff Investments (Pty) Ltd
v Cape Town Municipality 1969 (2) SA 256 AT 257.
If these are the legal requirements,
then it follows that the whole basis of raising the points in limine by both counsels for the
respondents was both mischievous and a deliberate attempt to poison the court's
mind. It was calculated to mislead the
court.
The points in limine raised by both counsels are accordingly dismissed as they
do not have any legal foundation.
The case must be considered on
merits.
Mabulala & Motsi, applicants' legal practitioners
Mawere & Sibanda, first and second respondents' legal practitioners
Chikumbirike &
Associates, third to fifth respondents' legal
practitioners
