n South African Law Journal - Interdicts seeking to preserve constitutional rights - of losing litigants, interim interdicts pending appeal, and lessons from Canada

Volume 124, Issue 3
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



The authors confront the vexed question whether there is any way for a litigant who has been unsuccessful in challenging government legislation in the court below to argue that, pending the outcome of an appeal against such decision, the impugned law (which thus far remains affirmed as constitutional by the court a quo) ought to be suspended to avoid prejudice and damage to the litigant in the interim. The authors suggest that the traditional position in South African law (which suggests that no suspension is possible) is inconsistent with the fundamental tenets of the Constitution. Their reasons for saying so are based on an analysis of South African cases, as well as on the important Canadian decision in [1994] 1 SCR 311, a judgment which the authors suggest ought to be utilized by a South African court confronted with such an issue in future.

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