The approach approved then by these authorities is that ‘a prima facie right, though open to some doubt’ conveys that the strength of the right is allowed to fluctuate from strong to weak: if it is strong, the other requirements for an interim interdict may be weak; if it is weak, the other requirements for an interim interdict may be strong.

The perspective of the meaning of ‘a prima facie right, although open to some doubt’, as collected by Ferreira from Erikson Motors and Olympic Passenger Service and approved by the Constitutional Court [SA Informal Traders Forum v City of Johannesburg (CCT 173/13 ; CCT 174/14) [2014] ZACC 8 (4 April 2014) at para 25], seems to me to render future reliance on Webster and Gool otiose.  Of course, the remedy remains ‘an extraordinary remedy within the discretion of the Court’, as Erikson Motors underscored [at 691], but that is a description apt for the entire discretion-exercising process, not only the first element of it”.  [Excerpts – paras [6] and [7] from the judgment]

Edcar Rubber Liners CC v Rema Tip Top Holdings SA (Pty) Ltd (24615/2015) [2016] ZAGPJHC 169 (24 June 2016) per Van der Linde J.

Further excerpts without footnotes

A prima facie right: the test

[1]        But the discussion starts with earlier, around the disputed issue of ownership.  Since the relief sought is interim the applicants need only establish a prima facie right, although open to doubt.  More specifically, the applicants must show that on their version, together with the allegations of the respondents that they cannot dispute, they should obtain relief at the trial.  If, having regard to the respondents contrary version and the inherent probabilities serious doubt is then cast on the applicants’ case, the applicants cannot succeed.

[2]        This tried and tested approach was significantly qualified by a full bench of this court in Ferreira v Levin, NO and Others; Vryenhoek and Others v Powell, NO and Others. Ferreira, which received the imprimatur of the Constitutional Court, materially lowered the bar set by Gool.  The latter required that on the asserted case the applicant “should” obtain final relief at trial; the former requires only “a” prospect of success, albeit “weak.”

[3]        The correct perspective, however, of these ostensibly dichotomous positions is, in my view, captured by Holmes, J (then) in Olympic Passenger Service (Pty) Ltd v Ramlagan, approved by Holmes, JA in Erikson Motors (Welkom) Ltd v Protea Motors, Warrenton, and Another, in turn followed by Ferreira, and approved by the Constitutional Court:

“It thus appears that where the applicant’s right is clear, and the other requisites are present, no difficulty presents itself about granting an interdict.  At the other end of the scale, where his prospects of ultimate success are nil, obviously the Court will refuse an interdict. 

Between those two extremes fall the intermediate cases in which, on the papers as a whole, the applicants’ prospects of ultimate success may range all the way from strong to weak.  The expression ‘prima facie established though open to some doubt’ seems to me a brilliantly apt classification of these cases. 

In such cases, upon proof of a well-grounded apprehension of irreparable harm, and there being no adequate ordinary remedy, the Court may grant an interdict – it has a discretion, to be exercised judicially upon a consideration of all the facts. 

Usually this will resolve itself into a nice consideration of the prospects of success and the balance of convenience – the stronger the prospects of success, the less need for such balance to favour the applicant: the weaker the prospects of success, the greater the need for the balance of convenience to favour him.  I need hardly add that by balance of convenience is meant the prejudice to the applicant if the interdict be refused, weighed against the prejudice to the respondent if it be granted.”