The role of public interest in maintaining interim relief
This blog is co-authored by Jos Fogle, candidate attorney.
In February 2025 the High Court provided authority for the point that maintaining interim relief pending the final determination of a matter can be crucial to preventing harm to the public interest and ensuring the proper administration of justice.
In November 2024, the Johannesburg High Court granted an urgent interim interdict preventing Airport Company South Africa (ACSA) from further adjudicating a tender and awarding various contracts, including the purchase of hold baggage screening. ACSA and the South African Civil Aviation Authority were ordered to allow Aviation Co-ordinate Services (Pty) Ltd to replace the existing back-up screening units with new back-up units at two airports. The Respondents launched an application for leave to appeal the November order.
The Applicants therefore applied for an order declaring the November order operative and not suspended by the application for leave to appeal or any appeal, relying on section 18(2) of the Superior Courts Act. The general rule is that the operation and execution of a decision that is the subject of an application for leave to appeal or an appeal is suspended pending the decision of the application for leave to appeal or appeal, if successful. The exception to this rule is if a court orders otherwise in the event of (1) exceptional circumstances; (2) if the party who applied for such an order can prove on a balance of probabilities that they will suffer irreparable harm if the order is not granted; and (3) that the other party will not suffer irreparable harm if the order is granted.
The court found that there were compelling reasons to hear the appeal and therefore granted leave to appeal. ACSA filed a counter-application to suspend the implementation and operation of the court orders based on the argument that the November order interfered with its statutory powers and obligations under international and South African law. The court rejected ACSA’s argument and found that that the November order was of an interim nature as it only served to maintain the previously existing state of affairs.
A key takeaway from this judgment is that the court’s analysis considered the public interest, particularly in relation to cases involving statutory powers and obligations, when determining whether an interim order should be suspended or enforced pending the final determination of case.
