INJUNCTION

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Interim injunction

Material on which Court should decide ? Is oral evidence permissi­ble ?-Regular and summary procedure - burden of proof - defamation suit - section 54 of the Judicature Act No. 2 of 1978 - tests to be applied in granting an interim injunc­tion - ss. 662, 664, 666 C.P.C.


In deciding whether or not to grant an interim injunction the following sequential tests should be applied  
 
1. Has the plaintiff made out a strong prima facie case of infringement or imminent infringement of a legal right to which he has title, that is, that there is a serious question to be tried in relation to his legal rights and that the probabilities are that he will win.
 
2. In whose favour is the balance of convenience- the main factor being the uncompensatable disadvantage or irreparable damage to either party?

3. As the injunction is an equitable relief granted in the discretion of the Court do the conduct and dealings of the parties justify grant of the injunction. The material on which the Court should act as the affidavits supplied by plaintiff and defendant. Oral evidence can be led only of consent or upon acquiescence.
 
In a defamation suit the plaintiff must in addition establish

(i) That the matter complained of is defamatory,
 
(ii) No defence such as truth or public benefit can be set up,

(iii) Nothing has happened to deprive the applicant of his remedy such as the giving of consent.
 
The burden of proof is an the plaintiff. In a defamation suit where the plaintiff seeks an interim injunction he must prove also that no defences such as justification and fair comment can be set up though at the main trial the burden of proving these defences would be on the defendant.

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