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[2016] ZASCA 95
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Koukoudis and Another v Abrina and Another (20747/2014) [2016] ZASCA 95; [2016] 3 All SA 398 (SCA); 2016 (5) SA 352 (SCA) (2 June 2016)
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THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
JUDGMENT
Case
No:
20747/2014
DATE:
2 JUNE 2016
Reportable
In
the matter between:
CHRISTOS
KOUKOUDIS
..................................................................................
FIRST
APPELLANT
PROC
CORP 160 (PTY)
LTD
.........................................................................
SECOND
APPELLANT
And
ABRINA
1772 (PTY)
LTD
.................................................................................
FIRST
RESPONDENT
INTER-ACTIVE
TRADING 626 (PTY)
LTD
............................................
SECOND
RESPONDENT
Neutral
Citation:
Koukoudis v Abrina
(20747/2014)
[2016] ZASCA 95
(2 June
2016)
Coram:
Leach, Majiedt and Pillay JJA and Victor
and Baartman AJJA
Heard:
14 March 2016
Delivered:
2 June 2016
Summary:
Delict
─ claim for damages for
abuse of rights ─ requirements of such a claim ─
requirements not established.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (Tolmay J sitting as court of first instance):
‘
1
The appeal succeeds with costs, including the costs of two counsel.
2
The order of the court a quo is set aside and replaced with the
following:
(a)
The plaintiffs’ claims are dismissed.
(b)
The plaintiffs are ordered to pay the defendants’ costs jointly
and severally, the one paying the other to be absolved,
such costs to
include:
(i)
The costs of 27 and 28 January 2014 until 11h30;
(ii)
The qualifying expenses of Prof P Botha, Mr S Pienaar, Mr P Dacomb
and Mr Regenass.
(c)
Each party is to pay its own costs for the period that the matter
stood down:
(i)
for preparation of the application for absolution of the instance
and,
(ii)
due to the unavailability of counsel.’
JUDGMENT
Leach JA (Majiedt
and Pillay JJA and Victor and Baartman AJJA concurring)
[1]
The respondents sued the appellants for damages they had allegedly
suffered by reason of a delay in the completion and occupation
of new
business premises which, so they contended, had been due to the
appellants having abused a right to object to the establishment
of a
township in terms of the Town-planning and Townships Ordinance 15 of
1986 (the Ordinance). Their claim was upheld in the Gauteng
Division
of the High Court, Pretoria and the appellants were ordered, jointly
and severally, to pay the first respondent the sum
of R237 644,08 and
the second respondent the sum of R985 746,75. Their appeal
against that order is with leave of the court
a quo.
[2]
A myriad of issues were raised in the appeal relating to the cause of
action, as well as causation and the damages allegedly
suffered. In
order to deal with these issues it is necessary to set out the
relevant background circumstances in some detail.
[3]
On 30 July 2003 the first appellant, Mr Koukoudis, became the
registered owner of certain immovable property in Centurion, within
the municipal area of the City of Tshwane Metropolitan Municipality
(the Municipality) to whom he pays rates and taxes. He also
conducts
a business known as Mr Biltong at Shop 53 in the Mall@Reds, a
shopping centre in Centurion owned by the second appellant,
Proc Corp
160 (Pty) Ltd (Proc Corp), a company of which Mr Koukoudis is both a
director and a 12% shareholder.
[4]
The second respondent, Inter-Active Trading 66 (Pty) Ltd
(Inter-Active), is the owner of a steakhouse known as Thunder Ridge
Spur which previously carried on business in premises at the
Mall@Reds pursuant to a written agreement of lease concluded with
Proc Corp with effect from 30 April 2003. Its directors are a Mr
A G Lubbe and his son, who share the same forenames. I shall
therefore refer to them individually as Mr Lubbe Snr and Mr Lubbe Jnr
and collectively as the Lubbes. The sole shareholder of the
second
respondent is the Lubbe Family Trust. Effectively, Inter-Active is
the alter ego of the Lubbes who are also the directors
of the first
respondent, Abrina 1772 (Pty) Ltd (Abrina) which is also wholly owned
by the Lubbe Family Trust.
[5]
The relationship between Proc Corp, as landlord, and Inter-Active, as
tenant, was not one free of difficulty. From the outset
of the lease
in 2003, problems arose as the building had not been completed when
Inter-Active was due to move in and set up the
steakhouse.
Inter-Active had to arrange to do certain of the outstanding work,
and thought that the cost it had incurred in doing
so excused it from
paying certain of its rentals as a result. Proc Corp disputed this
and, when Inter-Active failed to pay, it
cut off its electricity.
This led to court proceedings to have the electrical supply restored.
Subsequently, Inter-Active issued
summons to claim payment of an
amount it alleged Proc Corp owed in respect of the cost of completing
the building.
[6]
Problems also arose in regard to charges levied in respect of rates
increases that Proc Corp sought to pass on pro rata to Inter-Active;
whether VAT was payable on certain items; whether Proc Corp had
provided parking for Inter-Active at the complex as agreed in terms
of the lease; and precisely what rentals were due from time to time.
In addition, when Inter-Active wanted to sell the steakhouse,
Proc
Corp was only prepared to consent to the proposed purchasers taking
over the business if certain conditions were met. As a
result the
sale fell through.
[7]
The rights and wrongs of these disputes are unnecessary to decide and
are mentioned merely as background circumstances to explain
the
tension between the two parties. However, the relationship between
Proc Corp and Inter-Active soured and, before the lease
expired at
the end of April 2008, the Lubbes had decided not to renew it.
[8]
In the meantime, Mr Lubbe Snr had acquired the immovable property
more fully described as the Remaining Extent of Portion 92
of the
farm Swartkop 383, Registration Division JR Gauteng (Portion 92). He
used Abrina as the business vehicle for doing so, and
it became the
registered owner of the property on 25 November 2005. Mr Lubbe Snr
testified that he decided to erect what he described
as ‘his
own building’ on Portion 92 in which to conduct the streakhouse
business. I must mention that Portion 92 is
also situated in
Centurion, and only some 600 metres from the Mall@Reds.
[9]
In order to build the envisaged business premises on Portion 92,
which was zoned as ‘agricultural’ at the time,
it was
necessary to have the property declared a township under the
Ordinance.
[1]
Mr Lubbe Snr
testified that the development of a township was something beyond his
expertise, and so he sought the assistance of
a town planner, Mr Hugo
Erasmus. In terms of the provisions of s 69(1) of the Ordinance, it
was necessary for the owner of land
to apply in writing to the local
authority within whose jurisdiction the land is situated to establish
a township. Consequently,
on 24 January 2006, Mr Erasmus applied to
the Municipality on behalf of Abrina to establish a township on
Portion 92. Following
this, the Municipality published a notice under
s 69(6)(
a
)
of the Ordinance calling for comment on the application. A few days
later, on 30 January 2006, the first appellant, Mr Koukoudis,
filed
the following written objection to the establishment of the proposed
township under s 69(7) of the Ordinance:
‘
1.
The above application including the primary and secondary rights
applied for, are objected to.
2.
The application conflicts with town planning principles and the
interests of residents.
3.
The application does not comply with and the applicant has not
complied with requirements, principles and guidelines regarding
land
development and the environment provided for in the Constitution, the
Development Facilitation Act, 73 of 1998, the National
Environmental
Affairs Act, 107 of 1998 and others.
4.
The application does not address fundamental issues such as;
environmental impact assessments, traffic issues, and other
requirements
of the acts referred to in paragraph 3.
5.
The application as lodged cannot proceed until the issues raised have
been dealt with and addressed.’
[10]
Mr Koukoudis was not the only one who objected to the township.
Further objections were filed on behalf of a Mr Pelser by a
firm of
town planners, as well as by a Mr Swanepoel who, in turn, was
supported by another 19 signatories. All these objections,
save that
of Mr Koukoudis, were subsequently withdrawn. In a written
representation to the Municipality dated 17 September 2007,
Mr
Erasmus stated that ‘the fact that the objectors withdrew their
objections is also an indication that they have accepted
the fact
that the area is in the process of change from residential to
commercial’. Whether that was an accurate reflection
of the
true state of affairs, or whether the other objectors had been
pressurised into doing so after having been personally visited
by the
Lubbes or Mr Erasmus is, at the end of the day, of no consequence in
the light of the manner in which the case eventually
presented
itself.
[11]
Be that as it may, both Mr Lubbe Snr and Mr Erasmus went separately
to see Mr Koukoudis to attempt to persuade him to withdraw
his
objection. When Mr Lubbe Snr asked why he was objecting, Mr Koukoudis
told him to speak to Mr Anastasiadis. The latter is the
managing
director of Proc Corp and appears to be its driving force. On a
subsequent visit, Mr Lubbe Snr asked Mr Koukoudis what
he had against
him, to which the reply was ‘I have a right to object’.
When Mr Lubbe took Mr Koukoudis by the arm he
was told in no
uncertain terms that he should not touch him, and later he received a
letter from an attorney in which it alleged
that he had poked Mr
Koukoudis with his finger and was informed that any further contact
with Mr Koukoudis should take place through
the attorney concerned. A
visit by Mr Erasmus to Mr Koukoudis was also unsuccessful and he,
too, was referred to Mr Anastasiadis.
[12]
When approached by Mr Erasmus, Mr Anastasiadis told him that he
refuses to withdraw the objection. As in fact Proc Corp had
not filed
an objection, the utterances of both Mr Anastasiadis and Mr
Koukoudis, together with the fact that Mr Koukoudis did not
attend
the hearing before the municipal committee regarding Abrina’s
application to develop a township, nor the subsequent
appeal
proceedings to the Townships Board, (which was attended by a
representative of Proc Corp), leads to the inevitable conclusion
that
the first appellant also acted on behalf of Proc Corp in lodging the
objection. I shall refer to this later.
[13]
Applications for the development of townships take their time, as was
also the case in this instance. The Lubbes appear to
have become
impatient. In about September 2007, Abrina started to construct the
shopping centre it wished to develop on Portion
92 by doing the
necessary earthworks, and in December 2007 it started building. This
was premature and unlawful, and on 25 February
2008 the Municipality
issued it with a contravention notice in respect of its building
activities. This read as follows:
‘
During
an investigation on 25/02/2008 at above-mentioned premises it was
found that you are in contravention of s 4(1) of the National
Building Regulations and Building Standards Act 103 of 1977 read with
regulation A25(10) of the National Building Regulations promulgated
by virtue of Section 17(1) read with Section 17(3)(b) of the National
Building Regulations and Building Standards Act 103 of 1977.
In
that you are erecting a building (NEW RESTAURANT) in prospect of
which plans and specifications are to be drawn and submitted
in terms
of the Act without having obtained the prior approval in writing of
the City of Tshwane beforehand.
You,
the owner/occupant are hereby ordered in terms of Section 4(1) of the
National Building Regulations and Building Standards
Act 103 of 1977,
read with regulation A25(10) of the National Building Regulations
promulgated by virtue of Section 17(1) read
with Section 17(3)(b) of
the National Building Regulations and Building Standards Act 103 of
1977, to cease all building work immediately
and to submit the
necessary plans and specifications within 21 days to the City of
Tshwane after receipt hereof and obtain written
approval, or
alternatively to demolish such building and remove the material of
which such building consisted and any other material
or rubbish from
the premises.
Failing
compliance with this notice, legal proceedings will be instituted
against you without further notice. This notice is final
and no
extension of time will be granted.’
[14]
When this notice was ignored, the Municipality brought proceedings as
it had threatened. In Pretoria High Court case 12170/2008,
in which
Abrina was cited as first respondent and the Lubbes as second and
third respondents respectively, the Municipality sought
an order
directing them to cease all building work. Subsequently, on 18 March
2008, an order was granted by consent, postponing
the matter sine die
with the respondents (ie Abrina and the Lubbes) undertaking not to
conduct any building work on the property
pending a decision of the
Municipality’s planning department of an application under
s7(6) of the National Building Regulations
and Building Standards Act
103 of 1977
[2]
to permit
provisional authorization to proceed with the erection of the
building.
[15]
Abrina immediately proceeded to apply for such provisional
authorisation. But it was not prepared to await the outcome of its
application, and notwithstanding its undertaking incorporated in the
court order of 18 March 2008, it recommenced its building
operations
the following month, presumably expecting that its application was a
mere formality and would be approved. However its
expectations proved
to be false as, on 3 June 2008, the Municipality refused the
application in the following terms:
‘
Your
application for provisional authorization to carry on with the
erection of building work on the above-mentioned property in
accordance with Site Development Plan No SDP1/1484/07 and Building
Plan No B5/620/08 is hereby declined, due to the following reasons:
1.
Site Development Plan is not approved, therefore building plans
cannot be recommended for approval.
2.
Township not yet promulgated, there is an objection in terms of
rights.
3.
No service level agreement & guarantees for service in place.
4.
Comments from internal departments outstanding.
4.1
Regional Spatial Planning
4.2
Transport Engineering
4.3
Roads & Stormwater
4.4
Electricity
5.
Rights not being promulgated
6.
Bulk service agreement & guarantees not in place for service.’
[16]
In the meantime, on 12 March 2008, the Municipality’s city
planning committee had approved Abrina’s application
to
establish a township. On learning of this, Mr Koukoudis, on 15 April
2008, lodged an appeal to the Townships Board against that
decision.
Then, on 13 June 2008, after the Municipality had refused Abrina’s
application for provisional authorisation to
build, and in the light
of the fact that Abrina had in fact been building from April 2008, Mr
Koukoudis instituted interdict proceedings
to prevent Abrina from
continuing to build in contravention of the existing town planning
scheme.
[17]
The events of 22 August 2008 are unlikely to be fondly remembered by
the Lubbes. The Municipality, presumably aggrieved at
the breach of
the undertaking incorporated in the court’s order of 18 March
2008, set down case number 12170/2008 for further
hearing and Vorster
AJ issued an order that all construction work cease forthwith. He
further ordered Abrina and the Lubbes to
submit the necessary plans
and specifications within 10 days from the date of a final decision
of the Gauteng Townships Board relating
to the development of the
proposed township and to obtain a written approval of such plans;
alternatively should such approval
not be granted, to demolish any
building on the premises. They were further ordered to pay costs on
the scale as between attorney
and client.
[18]
Not only was the Municipality’s application granted against
them, but Mr Koukoudis’s interdict application, also
heard that
day by Vorster AJ, was also successful. In that matter, Abrina and
the Lubbes were restrained and interdicted from continuing
with any
building or building related activity on Portion 92 in conflict with
the provisions of the Tshwane Town Planning Scheme
of 2008. The
Municipality was also restrained from granting approval of any
building plans on the property, or from granting provisional
authorisation to commence or proceed with the erection of a building
on the property in terms of s 7(6) of Act 103 of 1977, in
conflict
with the Tshwane Town Planning Scheme. Once more, Abrina and the
Lubbes were ordered, jointly and severally, to pay the
costs of that
application on a scale as between attorney and client. A
counter-application in which Abrina and the Lubbes sought
an order
authorising the Municipality to grant an order allowing them to
provisionally continue with the building process, was
also dismissed.
[19]
Abrina and the Lubbes applied for leave to appeal against the
interdict granted in the application of Mr Koukoudis. Leave was
refused on 9 September 2008, but they did not give up and applied to
this Court for its leave to appeal. Unsurprisingly, given
the
unlawfulness of their actions, that application was dismissed on 26
May 2009. However, despite the terms of interdict, in November
2008
Abrina continued with its building operations, doing plumbing work
and certain civil engineering on the site.
[20]
In the meantime, on 2 October 2008, Mr Koukoudis’s appeal to
the Townships Board was heard. On 6 February 2009, the Townships
Board recommended to the MEC of the Gauteng Department of Economic
Development that the appeal should be dismissed. In response
to this,
an attorney acting on behalf of Mr Koukoudis made written
representations to the MEC in the form of a reply to the Townships
Board’s reasons. He recorded the premature building
construction activities of which Abrina had made itself guilty
without
approved building plans; argued that Abrina had not
established a need for a restaurant and that such issue had not been
properly
addressed by the Townships Board; and submitted that it was
undesirable for there to be a further development in a residential
area for a number of reasons, including the impact which the
development would have on traffic.
[21]
Despite all his efforts, the MEC dismissed Mr Koukoudis’s
appeal on 2 July 2009. Meanwhile, notwithstanding the court
orders
against it, Abrina had continued with its building activities on
Portion 92. In October 2009 pilot computer software was
installed and
the branding of the steakhouse it had built was completed. This was
all done before 28 October 2009 when the Municipality
finally
approved the application under s 7(6) of the National Building
Regulations and Building Standards Act 103 of 1977 and granted
provisional authorisation to build. In addition, on 24 November 2009,
acting under s14(1A) of that Act, the Municipality gave Abrina
consent to use the building before a certificate of completion had
been issued. Then, by notice of the Provincial Gazette of 7
December
2009, a township was declared on Portion 92. Two days later, approval
of the building plans was given. It appears
from this that,
essentially, most of the building had been erected either unlawfully
or in conflict with court orders restraining
the building operations.
[22]
Having eventually built the new business premises on Portion 92, the
Lubbes relocated their steakhouse there. Thereafter, the
Lubbes, or
more correctly their alter egos, the two respondent companies,
instituted action against the appellants, alleging that
the initial
objection by Mr Koukoudis and the appeal to the MEC when it was
over-ruled, had been unlawful, and seeking to recover
damages
allegedly sustained through the project having been delayed. As
mentioned at the outset, this claim was upheld in the court
a quo.
[23]
On the face of it, Mr Koukoudis had acted in the exercise of rights
bestowed upon him by the Ordinance. The respondents, however,
alleged
that he had acted with the specific intention of frustrating the
development and causing them financial harm. In doing
so they relied
upon the so-called ‘doctrine of the abuse of right’ which
recognises that a right may be used in circumstances
which render its
exercise unlawful.
[24]
The phrase ‘abuse of right’ has been criticised, because
a person who abuses a right in fact acts without a right.
See eg Prof
J L Neels
Tussen regmatigheid en onregmatigheid: Die leerstuk van
oorskrying van regte en bevoeghede (Deel3)
2000 TSAR 469
at
487-490 where the suggestion is made that the phrase ‘excess of
right (or entitlement)’ would be more appropriate.
Similarly,
Planiol and Ripert in their
Traite elementaire de droit civil
commented:
‘
[T]he
formula “abusive use of rights” is playing with words: if
I use my right, my act is
legitimate
,
and when it is
not
legitimate
,
I am exceeding my right and
acting
wrongfully . . . (A) right ceases where an abuse begins
,
and there cannot be an “abusive use” of any right for the
irrefutable reason that one and the same act cannot be both
in
accordance with the right
and
contrary
to it
.’
(Emphasis
in original.)
[3]
Thus
a person either acts within the limitations of a right, in which
event the act shall be lawful, or beyond it bounds, in which
event
the action will be unlawful.
[4]
Nevertheless it is a phrase of convenience commonly used in legal
parlance and so, despite its strict theoretical short-comings,
I
shall use it for purposes of this judgment.
[25]
The unlawfulness of an action purportedly performed in terms of a
right, but for an improper purpose, has been recognised by
the courts
of this country. For example, in
Van
Eck
[5]
this court had to deal with the seizure of bags of rice, not for the
purpose allowed in terms of a war measure regulation, namely,
to
afford evidence of a contravention, but in order to obtain possession
of the rice so as to further a food distribution scheme.
In finding
this to have been unlawful, Davis AJA, in giving the unanimous
judgment of this Court, said:
‘
Mr
Milne also argued that the motive with which the seizure was effected
was irrelevant, for, he contended, if a man has a right
to do an act,
then the motive from which he exercises that right is immaterial;
even if he did it from a wrong motive, that cannot
affect the
validity of his act. That proposition is, apparently, as a general
rule correct in regard to the English law . . . But
it is of more
doubtful application in our law.
Gothofredus
,
in his Commentary on the
Regula Juris
,
“
Jure suo qui utitur, nil dolo
facit
” (
D
.50.17.53),
points out (p. 245
in fin
.)
that there may be an exception to this rule in the case where
“
nocendi, tantum animo jure suo
quis utatur, neque enim malitiis hominum indulgendum est
”
(where anyone uses his right only with the intent to injure another,
for people’s malice is not to be favoured).
Voet
,
39.3.4,
Schorer
,
Note 58, and
D
.39.3.1.12;
39.3.2.9 may be cited in favour of the existence of this exception;
and see
Smith v. Smith
(1914, A.D. 257
, at p. 272
in fin
.);
Union Government v Marais
(1920, AD 240
at 247). I shall not, however, pursue this matter . . .
for Mr.
Milne’s
proposition can have no application to the present case. We are here
not dealing with an unlimited right to seize, conferred by
law on the
appellants and their officers and employed by them from improper
motives; we are dealing with a limited right, conferred
on them by
law for one purpose only.
While
professing to have exercised that right for the purpose for which
alone it was conferred, in reality they have used it to
effect quite
a different purpose, for which the law gave them no right to use it ─
a purpose indeed which that law by clear
implication forbade.
’
(Emphasis added.)
[26]
It has also been held to have been unlawful for a competitor to
induce a rival’s employers to terminate their employment,
not
in order to benefit from such employees’ services but to
cripple or eliminate the business of the commercial adversary.
[6]
And in
Bress
Designs
[7]
(albeit
in the field of alleged unlawful competition rather than
administrative law) Van Dijkhorst J stated, correctly in my view,
that:
‘
.
. . a clear line should be drawn between acts of interference with
the interests of another when the object is the advancement
of a
person’s own interest and such acts whose sole or dominant
purpose is the infliction of harm for its own sake. Whereas
in law
the advancement of one’s own economic interest is, generally
speaking, a legitimate motive for action, there can be
no doubt that
the community would condemn as
contra
bonos mores
the malicious destruction
or jeopardising of a sound business through the marketing of
identical furniture at cut-throat prices
for reasons of personal
vindictiveness. I have no doubt that not only by the community in
general but also in the field of ethics
and morality of the furniture
manufacturers such conduct is not acceptable, though copying each
other’s products may be the
order of the day.’
[27]
The question of acting in pursuance of a right solely to harm another
was also addressed by this court in
Millward
v Glaser
1949 (4) SA 931
(A) where, by way of example (the facts were very
different
[8]
) the following was
said in regard to the law relating to neighbours:
[9]
‘
If
I dig a well upon my property, I may be fully aware of the fact that
by doing so I am going to diminish the supply in my neighbour’s
well. . . . If I do so with the expected result, for the advancement
of my own interests, my neighbour will have no ground of complaint.
Where, however, I do so not to further my own interests but in order
to injure him, he may have a remedy.’
[10]
[28]
In regard to the requirements of a claim for abuse of right, Prof van
der Walt has said the following:
‘
It
is difficult to formulate a general criterion for determining whether
an abuse has been committed. No hard-and-fast rules can
be
enunciated. Generally speaking there is an abuse when the defendant
has acted with the sole (or predominant) motive of harming
another .
. . and without advancing a significant interest of his or her own.
The subjective requirement of a harmful motive can,
it is submitted,
convert a prima facie lawful act into a wrongful one only if there is
a substantial discrepancy between the harm
suffered by the plaintiff
and the advantage gained by the defendant . . . . Where . . . the
defendant’s conduct serves to
advance a reasonable interest of
his or her own, a bad motive is not in itself sufficient to indicate
wrongful conduct.’
[11]
[29]
Moreover, as Neethling, Potgieter and Visser also point out
[12]
the basic question is one of wrongfulness. In that regard it must be
remembered that our law is generally reluctant to recognise
claims
for pure economic loss, such as the claim with which we are here
dealing, as there always being the risk of indeterminate
liability to
a wide array of persons.
[13]
The element of wrongfulness functions to curb such liability. It
requires the conduct to be of such a nature that public or legal
policy considerations require it to be actionable.
[14]
As stated by the Constitutional Court in
Le
Roux
,
wrongfulness ‘ultimately depends on a judicial determination of
whether . . . it would be reasonable to impose liability
on a
defendant for the damages flowing from specific conduct’ that
‘would in turn depend on considerations of public
and legal
policy in accordance with constitutional norms’.
[15]
[30]
The weight of academic opinion is to the effect that conduct should
not be regarded as being unlawful where it advances a legitimate
right of the person exercising it, even if in doing so another may be
prejudiced. This is apparent from the comment of Prof van
der Walt
quoted above.
[16]
Furthermore Prof J E Scholtens, after an exhaustive examination of
the old authorities and the law in several other jurisdictions,
concluded:
[17]
‘
[T]hat
in order to constitute an abused right in our law both the subjective
requirement that an act be done with the sole or predominant
intention to harm another and the objective requirement that
the act serve no or anyhow no appreciable or legitimate interest
should be present.
The
question is tentatively put forward whether there should not be a
further requirement, viz that no man would have reasonably
acted in
the manner complained of but for the intention to injure. This would
exclude liability for acts which a man is reasonably
at liberty to
do, for instance refusing access to his property to a neighbour.
Under this requirement there would be no liability
even if the
refusal of access would harm the neighbour and were inspired by
malicious motives. Abuse of right is essentially an
excess of right.
What constitutes this excess will depend on the nature of the right
and circumstances of the case.
’
[31]
This in my view is a correct reflection of our law, certainly in
regard to the first two requirements ─ as stated, albeit
obiter, by this court in
Brummer
v Gorfil Brothers
.
[18]
In this case it is unnecessary to go further and to consider the
further requirement tentatively advanced by Prof Scholtens as
the
matter may be resolved by considering the first two. In considering
the question of the appellants’ liability, one must
therefore
have regard, first, to the subjective requirement, namely, whether
the objection to the development was done with the
sole or
predominant intention to harm the respondents (or the Lubbes); and
then, second, the objective requirement, namely, whether
the
objection served no appreciable or legitimate interest of the
appellants.
[32]
Before doing so, however, one further aspect needs to be addressed.
Counsel for the appellant argued, initially with confessed
hesitation
but with waxing enthusiasm, that a claim could not lie where the
right allegedly abused was one bestowed by statute.
In developing
this contention, reliance was placed upon comments of the late Prof R
McKerron in his seminal work
The
Law of Delict
to the effect that liability would flow from an abuse of a
proprietary right but not from the abuse of other rights.
[19]
This would appear to be the position in certain Continental
jurisdictions, in particular France and the Netherlands.
[20]
Reference was also made to the views of the French author, Josserand,
who distinguished between three categories of rights: first,
an
absolute right in respect of which the interests of society demand
that there shall be no check on its exercise so that, in
their
regard, the question of abuse cannot arise; second, an egoistic right
which may be exercised at will provided some material
interest is
promoted; and third, a so-called altruistic right which can only be
exercised with due regard to the interest of others.
[21]
[33]
The active engagement of communities in the affairs of municipalities
is encouraged in our democratic constitutional system.
[22]
In matters of local government, including municipal land use
planning, the right to object to the establishment of a township and
the right to appeal against the approval of a township form part of a
legislative scheme, founded upon the Constitution, that both
entitles
and encourages individual members of society to actively participate
in municipal decision-taking. In the light of this,
it was argued by
the appellants that the rights they had exercised fall within the
category of ‘absolute rights’ as
envisaged by Josserand;
that the interest of society demands that such may be used without
any fear of recourse; and that insofar
as their exercise might cause
a delay, that is the price to be paid for arriving at an informed
decision on future land use development
as contemplated by the legal
framework in a demographic system of participatory governance.
[34]
The argument is not without its attraction and is in line with the
view
that
‘courts would embark on a very perilous and questionable course
should they enter into an inquiry as to motives, when
the act which
has caused injury is permitted by law.’
[23]
The contrary
standpoint
is that, in all circumstances, it should be regarded as wrongful to
exercise a right with the sole or predominant intention
to cause harm
to another and without appreciably advancing a legitimate interest.
Thus Prof Paul-Andre Crepeau has argued that:
‘
Essentially
it must be recognized that, whatever its origin, a right can never be
absolute. Every right has a particular purpose:
it is conferred to
meet social imperatives or economic needs, not to assuage instincts
of vengeance or spitefulness. . . . A legal
order, which is a pale
reflection of the moral order, unavoidably must accommodate egoism;
in no case should it tolerate malice.’
[24]
[35]
My prima facie opinion is that no right, whether statutory or
otherwise, should be regarded as absolute and capable of being
exercised solely to cause harm without fear of the actor being held
liable for abuse. For present purposes, I am therefore prepared
to
accept, without finally deciding, that the abuse of a statutory right
is actionable and that, in the context of the present
dispute, the
fact that Mr Koukoudis exercised a statutory right is in itself no
bar to the appellants being held liable. But due
to the facts of this
case, for the reasons that follow no final decision need be taken on
this issue.
[36]
As already mentioned, the respondents’
claim for damages is founded upon an allegation that Mr Koukoudis
opposed the development
not to advance any self-interest (the
objective requirement of a claim for abuse) but solely to inflict
harm upon the respondents
(the subjective element). In the event of
both these elements being established, considerations of public and
legal policy would
in my view regard such conduct as being unlawful
and actionable.
Indeed I understood it to
be accepted by the appellants that if the respondents had discharged
the onus of proving that to have
been the case, liability would
follow.
[37]
Dealing first with the subjective requirement. T
he
respondents placed considerable emphasis upon the contents of the
minutes of a board meeting held by Proc Corp on 3 December
2007, from
which it appeared that Proc Corp’s management regularly
scrutinised the Gazette for notices relating to proposed
developments
in the area and, if there were any, objected to such developments.
These objections were not made in Proc Corp’s
name but were
lodged either in the name of its associated property management
company, Anaprop, or as happened in the instant case,
in the name of
one of its members. On the strength of this, it was argued that Proc
Corp would have acted in its own name had it
not been motivated by an
ulterior purpose and that its predominant intention had been in the
past to object to and delay other
developers in order to allow it to
make provision in its own shopping mall for the amenities envisaged
in any new development,
thereby keeping other developers ‘out
of the market’. This, so the argument went, was what happened
in this case as
well.
[38]
The court a quo placed considerable reliance upon this, stating the
following in its judgment:
‘
A
perusal of these minutes makes it clear that Proc Corp, through their
managing agent Anaprop had a strategy to object to developments
that
it regarded as competition, with the purpose to delay those
developments in order to stifle competition. There was a difference
of opinion between the directors of Proc Corp pertaining to the
strategy followed. Some of the directors were concerned that these
objections could be perceived as economic sabotage. It is clear that
there were often no
bona fide
town
planning issues at stake in these objections. These minutes confirm
Mr Lubbe and Mr Erasmus’s testimony that the objections
were
made with ulterior purposes. It also supports the evidence that Mr
Anastasiadis was, in his capacity as managing director
of Proc Corp,
behind these objections. It can therefore be accepted that Proc Corp
used Mr Koukoudis to object in the same way
as Anaprop was used to
oppose developments as set out in the minutes. On an analysis of the
evidence it would seem that the only
logical inference is that Mr
Koukoudis lodged his objections to benefit Proc Corp. The question
that will ultimately have to be
answered is if this strategy was
lawful.
From
the above the only logical inference that can be drawn is that the
objections and appeal were lodged with an ulterior purpose
to delay
and frustrate other developers and specifically the plaintiffs.’
[39]
In my view, however, although correct in concluding that the
objection was intended to benefit Proc Corp, the court a quo erred
in
reaching the conclusion that there was an ulterior purpose. The fact
that Proc Corp had attempted to cover the market on previous
occasions does not mean that it was not seeking to protect its own
investment in the Mall@Reds but attempting to ruin the Lubbes.
Even
if its actions in relation to other developers were questionable, an
issue not ripe for issue in these proceedings, the issue
was not
whether it had always acted unlawfully but whether it acted
unlawfully and in abuse of its rights in the present case.
[40]
When Mr Lubbe Snr testified he specifically alleged that the first
appellant had objected in order to destroy him.
[25]
This may have been his suspicion, but it was clearly an inference of
fact that fell solely within the domain of the trial court
to
determine in the light of the evidence placed before it. His
statement that the first appellant wished to destroy him
was, without
a factual basis having been laid, clearly inadmissible.
Significantly, in an affidavit opposing an application brought
by
Proc Corp in June 2008 to evict Inter-Active from the leased premises
at the Mall@Reds after the lease had expired, Mr Lubbe
Snr stated
that Proc Corp’s intention was ‘to financially ruin’
Inter-Active and the companies he controlled
‘which intention
they have on numerous occasions verbally conveyed to me’.
Despite this, when he testified in the court
a quo he made no mention
of any such threats. He would surely have done so if they had been
made, and the inevitable inference
is that the ‘numerous
occasions’ to which he had referred in the previous proceedings
were figments of his imagination.
[41]
In any event, without direct evidence of such threats, whatever
suspicions Mr Lubbe Snr may have harboured as to
Mr
Koukoudis’s motive in
objecting were
irrelevant, and the trial court ought neither to have admitted his
evidence in that regard nor had any regard thereto.
Similarly, the
statement of Mr Erasmus that he assumed that there may have been a
vendetta between Mr Lubbe Snr and Mr Anastasiadis,
was pure
speculation and lacked evidential value. Despite this, as appears
from the passage from the judgment quoted above, the
court a quo
accepted the allegations of both Mr Lubbe Snr and Mr Erasmus which it
felt had been ‘confirmed’ by the
minutes. In this it
misdirected itself.
[42]
For the reasons already given, it can be accepted that Mr Koukoudis,
both in objecting and appealing, acted not only on his
own behalf but
also on behalf of Proc Corp. In the light of this, the respondents
argued that the fact that Proc Corp relied upon
Mr Koukoudis to lodge
the objection, and that Mr Koukoudis failed to attend the hearings
before either the Municipal Planning Committee
or the appeal to the
Townships Board, showed that he had acted with an ulterior purpose.
But Mr Koukoudis himself had a not insubstantial
shareholding in Proc
Corp and there was thus a mutuality of interest between them. In the
light of this common interest, it is
irrelevant whether Mr Koukoudis
or the representatives of Proc Corp conducted the actual prosecution
of the objection proceedings.
The fact that Proc Corp did not object
in its own name is, in these circumstances, no reason to infer that
the objection was motivated
by malice or ulterior purpose.
[43]
Nor does the fact that Standard Bank was prepared to take up the
premises in the Mall@Reds vacated by Inter-Active, at a high
rental,
show an ulterior motive on behalf of the appellants, as the
respondents further contended. From Mr Lubbe Snr’s own
evidence, Standard Bank became a potential lessee (and indeed took
over the premises in due course) in 2008. This was more than
two
years after the written objection had been filed by Mr Koukoudis. It
appears to be an irrelevant consideration in regard to
whether the
objection in itself had been lodged for an ulterior purpose.
[44]
The respondents also argued that the terms of the objection as
originally lodged, and the manner in which the matter proceeded
thereafter, serve to indicate an ulterior motive on the part of Mr
Koukoudis. The objection read as follows:
‘
1.
The above application including the primary and secondary rights
applied for, are objected to.
2.
The application conflicts with town planning principles and the
interests of residents.
3.
The application does not comply with and the applicant has not
complied with requirements, principles and guidelines regarding
land
development and the environment provided for in the Constitution, the
Development Facilitation Act, 73 of 1998, the National
Environmental
Affairs Act, 107 of 1998 and others.
4.The
application does not address fundamental issues such as;
environmental impact assessments, traffic issues, and other
requirements
of the acts referred to in paragraph 3.
5.The
application as lodged cannot proceed until the issues raised have
been dealt with and addressed.’
The
respondents stressed that Mr Koukoudis had not proceeded with the
objection in these terms but ultimately based it squarely
on the
absence of need, desirability and sustainability of the proposed
township, those being requirements found in the regulations
promulgated under the Ordinance. In addition, they relied on the fact
that Mr Koukoudis had deviated from the original objection,
but had
argued that there was no need for a further restaurant in the
vicinity although, so Mr Lubbe Snr testified, whilst the
application
was pending Proc Corp had allowed a number of food outlets to be
opened in its shopping mall. All of this, so it was
argued, justified
an inference of malice.
[45]
I am unable to accept this argument. The application to establish a
township was terse in itself, and it could hardly have
been expected
of the appellants to object in detail to issues which were not known
to them. And the fact that they did so by way
of what was,
effectively, a standard form that they had used in the past, is in
itself no reason to find that they had acted maliciously
with intent
to cause harm. Moreover, the evidence of the respondents’ own
town planner, Mr Schoeman, who was called as an
expert, was that
objections are as a matter of course filed in broad terms and without
the objectors ‘doing their homework’
and that the
relevant issues crystallise as part of the process that includes
appeals against township board decisions. And even
if the appellants
allowed other food dispensing outlets to be established in their
mall, their objection does not lead to the most
probable inference
being that they wished to do the respondents harm.
[46]
Importantly, in October 2007, Mr Lubbe Snr was approached by Proc
Corp through its managing agent and reminded of the option
that
Inter-Active had to renew its lease for the premises it was renting
in the Mall@Reds. And when Mr Lubbe Snr testified, he
stated that
after the expiry of the lease, Proc Corp had made an offer to
Inter-Active to allow it to remain in the premises until
they were
needed.
[26]
At the end of the day, Inter-Active remained in occupation of the
premises in the
Mall@Reds
until
November 2009. These facts appear to me to be wholly inconsistent
with an inference that the appellants intended to destroy
Inter-Active’s business. Had that been the intention, rather
than seeking Inter-Active’s business and allowing it to
continue trading, one would have expected Proc Corp to have refused
to make rental space available to Inter-Active to conduct business
after its lease had expired.
[47]
Indeed,
Proc Corp clearly desired to have a
Spur restaurant
in the Mall@Reds. Spur is a
countrywide franchise having family appeal, and the evidence of Mr
Lubbe Snr establishes that the Thunder
Ridge Spur had proved to be
extremely popular. A popular and successful franchise restaurant
would obviously attract custom, and
the number of people passing
through a shopping mall carries the advantage of potential customers
for all businesses conducted
there. It is therefore understandable
that
Proc Corp
invited
Inter-Active
to
conclude a fresh lease shortly before its lease expired and that,
after the expiry, Proc Corp allowed Inter-active to stay on
in its
mall. None of this speaks of an intention to injure.
[48]
This also has important consequences relevant to the objective
requirement that has to be established by the respondents, to
which I
now turn. Portion 92, to which the Lubbes eventually relocated to the
Thunder Ridge Spur, is only some 600 metres from
the Mall@Reds. It is
common cause that the franchisor of the Spur steakhouse chain, Spur
Group (Pty) Ltd, had set its face in principle
against Spur
steakhouses being situated close to each other, presumably for the
reason that franchisees competing for custom devalue
each other’s
franchise. Indeed the franchise agreement the Lubbes had with
the Spur Group granted the Lubbe Family
Trust, as franchisee, a right
of first refusal in respect of the grant of any other Spur steakhouse
situated within a radius of
one kilometre from the Thunder Ridge
Spur. One of the consequences of relocating the Thunder Ridge
Spur to Portion 92 would
be, as appellants’ counsel put it, to
‘sanitise’ the Mall@Reds for another Spur steakhouse.
Taken with the popularity
of the Thunder Ridge Spur, as firmly
established by the respondents’ own evidence, this would
clearly be detrimental to the
volume of foot traffic through the
Mall@Reds. Simply put, customers who would have been drawn to a Spur
steakhouse in the Mall@Reds
would instead go to Portion 92, a few
hundred metres away. Consequently, the objection, if
successful, would have held a
substantial commercial advantage to the
appellants. And as the Mall@Reds represented a capital investment by
the appellants of
some R320 million, the objection served as an
attempt to preserve the advantages of this substantial asset.
[49]
In order to attempt to bolster their case, the respondents relied on
the fact that neither Mr Koukoudis nor Mr Anastasiadis
gave evidence.
In the light of this, and relying upon well-known authorities,
[27]
it was argued that the motive as to why they had objected to the
development was within their exclusive knowledge and that their
failure to testify justified an inference that their evidence would
damage their own case. Failure to testify by a party who is
available
and whose actions lie at the core of the dispute is, of course, a
factor to be taken into account, but in doing so regard
must be had
to the strength or otherwise of the case that party has to
meet.
[28]
Whilst less evidence
may well suffice to establish a prima facie case where the issue at
stake is peculiarly within the knowledge
of the opposing party, as is
here the case, that cannot convert a case founded upon pure
speculation and faulty inferential reasoning
into a prima facie case.
In my view the respondents case was so devoid of cogency that there
is no justification to draw any so-called
‘adverse inference’
against the appellants for failing to testify nor to conclude as a
result that they had intended
to harm the respondents and had
not in fact sought to protect their commercial interest in the
Mall@Reds.
[50]
Counsel for the appellant argued that the intention or motive in
objecting to the development ‘was obviously and clearly
to
protect commercial interest by preventing the shopping centre from
becoming sterilised for a Spur franchise: every shopping
centre wants
a Spur restaurant’. That is indeed the most probable inference
to be drawn from the evidence. That being so,
both the objection and
the subsequent appeal against it not being upheld served to protect a
legitimate financial and commercial
investment that the appellants
had in the Mall@Reds. As against that, there is no reason to draw an
inference that sole or dominant
intention or motive on the
appellants’ part was to cause personal ruin or financial harm
to the respondents.
[51]
I should mention that it was
argued by the
appellant that the social interest which Mr Koukoudis enjoyed
and shared with other objectors who, like he,
are resident within the
municipal area, had not been shown to have been absent. A resident
does have a social interest in whatever
development may take place,
particularly a commercial development, in a residential area, but I
did not understand that Mr Koukoudis,
in truth, relied upon this in
his appeal which was based solely upon the commercial interest he
shared with Proc Corp. Consequently,
in considering the question of
whether he abused his right to object, I have not taken his social
interest into account.
[52]
In any event, in the light of what I have set out above, the court a
quo erred in concluding that the respondents had successfully
established that the appellants should be held liable for having
abused their right of objection. In reaching that conclusion it
found
that the question whether an interest was protected by the exercise
of a right was to be answered in the light of ‘reasonableness
and fairness’, which ‘implies the weighing-up of the
benefits that the exercise of the right has for the (appellants)
as
against the prejudice suffered by the (respondents) as a result
thereof’. The authority relied upon in support of this
proposition were cases dealing with nuisance and disputes between
neighbours, arising from the impingement of one neighbour’s
right by the exercise of the right of another. In the present case,
of course, the appellants enjoyed the right to object. The
respondents, on the other hand, had no right to develop Portion 92
which was impaired by the objection. All they had was the entitlement
to apply to develop the land within the statutory prescripts relevant
to such an application. The matter therefore did not turn,
as the
court a quo appears to have thought, on whether bounds of
reasonableness had been exceeded and rendered the objection wrongful,
but whether the respondents had established both the subjective and
objective requirements for an abuse of rights ie whether the
appellants had intended to cause the respondents harm and had not
acted to advance or protect a legitimate interest. In respect
of both
requirements the respondents failed to prove an abuse.
[53]
The appeal must therefore succeed. As the respondents failed to
establish a valid claim, it is unnecessary to deal with the
diverse
arguments that were ventilated in this court in regard to the
questions of causation and damage, and whether the effect
of whatever
delays caused by the objection were off-set by the respondents’
illegal building operations conducted in breach
of their statutory
obligations and in defiance of court orders granted against them.
[54]
Turning to the question of costs, there is no reason for costs not to
follow the event. Both sides were agreed, correctly,
that the matter
was of a nature of the employment of two counsel and was justified.
There are however certain particular matters
relevant to costs that
must be mentioned.
[55]
It was recorded in the judgment a quo, that the respondents had
conceded that they were liable for the costs of 27 and 28 January
2014 until 11h30. In paragraph 1 of the order granted by the court a
quo, it was specifically ordered that the respondents are
to pay
those others costs, and that order can stand.
[56]
At the end of the respondents’ case, the appellants applied
unsuccessfully for absolution from the instance. In paragraph
2 of
the order of the court a quo, the appellants were ordered to pay the
costs of that application jointly and severally, although
each party
was ordered to pay its own costs for the period that the matter had
stood down to allow the parties to prepare for the
application. The
appellants argued that they should be entitled to those costs as
absolution ought to have been granted. The trial
judge had a
discretion as whether to grant absolution. She probably exercised
that discretion on an incorrect factual basis, but
it seems to me to
be unnecessary to deal with the correctness of her decision in that
regard as I see no reason why a specific
order as to costs in respect
of the absolution proceedings need be made. Applications from the
instance and their preparation all
form part of the trial proceeding
and a specific order relating to those costs seems superfluous. The
appellants however suggested
that each party should pay its own costs
relating to the period the matter stood down for the preparation of
the application for
absolution. That order operates in favour of the
respondents and so, if that’s what the appellants wish, I have
no difficulty
in granting the request.
[57]
The court a quo made a specific order that each party should pay its
own costs as a result of the matter standing down due
to the
unavailability of counsel. This was not attacked on appeal. I intend
to repeat that provision in the order made below.
[58]
The appellants also sought the qualifying expenses of certain expert
witnesses in the event of the appeal succeeding. There
was no
objection by the respondents to an order in that regard. This, too,
will be reflected in the order below.
[59]
The following order is made:
‘
1
The appeal succeeds with costs, including the costs of two counsel.
2
The order of the court a quo is set aside and replaced with the
following:
(a)
The plaintiffs’ claims are dismissed.
(b)
The plaintiffs are ordered to pay the defendants’ costs
jointly and severally, the one paying the other to be absolved,
such
costs to include:
(i)
The costs of 27 and 28 January 2014 until 11h30;
(ii)
The qualifying expenses of Prof P Botha, Mr S Pienaar, Mr P Dacomb
and Mr Regenass.
(c)
Each party is to pay its own costs for the period that the matter
stood down:
(i)
for preparation of the application for absolution of the instance
and,
(ii)
due to the unavailability of counsel.’
L
E Leach
Judge
of Appeal
Appearances:
For
the Appellants: M M Oosthuizen SC
Instructed
by: Welgemoed Attorneys, Centurion
Symington
& De Kok, Bloemfontein
For
the Respondents: M C Erasmus SC
(with
him D J van Heerden)
Instructed
by: D P Du Plessis Incorporated, Centurion
Lovius
Block, Bloemfontein
[1]
In
terms of Proclamation No R161 of 31 October 1994, the administration
of the Ordinance was assigned to the Gauteng Province
from the
former Province of the Transvaal.
[2]
The
section reads as follows:
The
provisions of this section shall not be construed so as to prohibit
a local authority, before granting or refusing its approval
in
accordance with subsection (1) in respect of an application, from
granting at the written request of the applicant and on
such
conditions as the local authority may think fit, provisional
authorization to an applicant to commence or proceed with the
erection of a building to which such application relates.
[3]
Traite
elementaire de droit civil
(10
th
ed. 1926), t. 2 at No. 871, p. 298, this translation being cited by
the Canadian Supreme Court in
Houle
v Canadian National Bank
[1990]
3 SCR 122
;1990 SCR Lexis 710,
1990 CANLII 58
(SCC).
[4]
See
eg J Neethling T M Potgieter P J Visser
Law
of Delict
5ed (2006) at 102-103 on the authorities there cited.
[5]
Van
Eck NO, and Van Rensburg NO v Etna Stores
1947
(2) SA 984
(A).
[6]
Atlas
Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd &
others
1981 (2) SA 173
(T) at 200F-G.
[7]
Bress
Designs (Pty) Ltd v G Y Lounge Suite Manufacturers (Pty) Ltd &
Another
1991
(2) SA 455
(W) at 475H - 476A.
[8]
The
wife of a deceased alleged that her late husband’s mistress
had by deliberate and intentional acts of persuasion made
a will
leaving his estate to her.
[9]
At
942.
[10]
A
similar comment is to be found in
Regal
v African Superslate (Pty) Ltd
1963 (1) SA 102
(A) at 107G-108A.
[11]
M
van der Walt
Delict:
Principles and Cases
2
ed (1979) para 77.
[12]
J
Neethling T M Potgieter P J Visser
Law
of Delict
(5
ed) at 107.
[13]
Country
Cloud Trading CC v MEC, Department of Infrastructure Development
[2014]
ZACC 28
;
2015 (1) SA 1
(CC) para 24 and the cases there cited.
[14]
Country
Cloud
paras
23-25.
[15]
Le
Roux and others v Dey (Freedom of Expression Institute and
Restorative Justice Centre as amici curiae)
[2016] ZACC 4
;
2011 (3) SA 374
(CC) 2011(6) BCLR 577 CC para 122.
[16]
See
further Neels ‘
Tussen
regmatigheid en onregmatigheid: Die leerstuk van oorskrying van
regte en bevoegdhede
’
(Deel
4)
(2000)
TSAR 643
at 645-649.
[17]
J
E Scholtens
Abuse
of Rights
(1958)
75 SALJ 39
at 49.
[18]
Brummer
v Gorfil Brothers Investments (Pty) Ltd & andere
1999 (3) SA 389
(SCA) at 412A-C.
[19]
R
G McKerron
The
Law of Delict
7ed (1971) at 49-50.
[20]
Scholtens
at p 48.
[21]
See
H C ‘Gutteridge
Abuse
of Rights
’
15 (1933-1935)
Cambridge
Law Journal
22
at 27-29.
[22]
See
eg s 152 of the Constitution and the
Local Government: Municipal
Systems Act 32 of 2000
.
[23]
P
M Mignault Pierre Basile ‘
The
Modern Evolution of Civil Responsibility
’
(1927), 5 Can. Bar Rev. 1 at 12 also cited in
Houle
.
[24]
P
A Crepeau ‘
Le
contenu obligationnel d’un contrat’
(1965)
43 Can Bar Rev 1
at 26 – a translation cited in
Houle.
[25]
He
used the Afrikaans expression ‘wou my vernietig’.
[26]
Volume
14 at 2675.
[27]
In
particular
Galante
v Dickinson
1950 (2) SA 460
(A) at 465,
Elgin
Fireclays Limited v Webb
1947 (4) SA 744
(A) at 749 and
Gericke
v Sack
1978 (1) SA 821
(A) at 827.
[28]
Titus
v Shield Insurance Co Ltd
1980 (3) SA 119
(A) at 133E-F.