Franschhoekse Wynkelder (Ko-operatief) Bpk v South African Railways and Harbours

• Jurisdiction: South Africa
• Court: Cape Provincial Division
• Judge: Vos J and Vivier J
• Judgment Date: 02 March 1981
• Citation: 1981 (3) SA 36 (C)

Vos, J.:

The main issue in this matter is whether a wine-making G co-operative, whose members are wine farmers, has a claim in law against the person who damaged the lands of its members with the result that the co-operative will no longer receive grapes from those members.

Plaintiff's claim reads:

"3.

Certain owners of farms situate in the Franschhoek valley are members of plaintiff and in terms of plaintiff's constitution and rules such members deliver their grapes to plaintiff for the purpose of making wine therefrom.

4.

Certain of the farms of plaintiff's members adjoin the railway line owned and operated by defendant and situate in the Franschhoek valley.

5.

On or about 4 June 1977, a company known as Union Weedkiller Services (Pty) Ltd ('Union Weedkiller'), acting at the

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instance of and on the instructions of defendant, sprayed the A undergrowth alongside defendant's railway line where it adjoins the farms owned by certain of plaintiff's members with a weedkiller substance known as 'Tandex'.

6.1

Defendant knew or ought to have known:

6.1.1

that the weedkiller was a noxious and poisonous substance;

6.1.2

that it would contaminate the soil with which it came into contact and cause the destruction of and/or serious damage to vines, fruit trees or other crops growing in the said soil.

6.2

B By reason of the aforegoing, defendant should have taken adequate precautions to prevent contamination of the soil on the aforementioned farms adjoining the railway line and also to prevent the destruction of and damage to vines, fruit trees and other crops growing thereon.

7.

C As a result of the spraying operations carried out by Union Weedkiller, as referred to in para 5 above, the soil of certain of the farms of plaintiff's members was contaminated by the aforementioned noxious and poisonous substance and vines D growing on each of the said farms were destroyed and/or damaged.

8.

The said contamination of the soil and destruction of and damage to vines were occasioned by the negligence of defendant in that it failed to take adequate precautions to prevent such contamination, destruction and damage.

9.

E In consequence of the aforementioned spraying operations and resultant damage to and destruction of the vines as aforementioned, plaintiff will no longer receive grapes from such farms, thereby causing plaintiff damage in the sum of R975 F 664 which damage was, in all the circumstances, foreseeable.

10.

In the premises, defendant is obliged to pay the sum of R975 664 to plaintiff."

Defendant excepted to the claim on various agrounds, but for purposes of G this judgment I need mention only one. It is that defendant is not in law liable to plaintiff for any damage. On this the excipient's case was that the legal basis of plaintiff's claim was the lex Aquilia and that plaintiff could only succeed if defendant's conduct. was not only negligent but also unlawful vis-à-vis plaintiff, in other words, it was not enough that defendant was negligent. There had - in addition - to be H unlawful conduct towards plaintiff. Thus, if a trader opened a business with the avowed object of damaging a competitor, no matter how negligent or even intentional his conduct might be and no matter how foreseeable the damage might be, the competitor had no claim in law because the conduct was not unlawful. In support of this contention counsel quoted various decisions and articles in legal journals, eg, Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) at 830; Union Government v Ocean Accident and Guarantee Corporation Ltd 1956 (1) SA 577 (A) at 584F - 585D; Nkabinde v SA Motor & General Insurance Co Ltd 1961 (1) SA 302 (D); Shell & BP

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South African Petroleum Refineries (Pty) Ltd and Others v Osborne Panama SA 1980 (3) SA 653 (D); Grobbelaar v Van Heerden 1906 EDC 229; Van Wyk v A Herbst 1954 (2) SA 571 (T) at 574A - C; Smit v Saipem 1974 (4) SA 918 (A) at 931; Lockhat's Estate v North British & Mercantile Insurance Co Ltd 1959 (3) SA 295 (A) at 304E - F; Kruger v Strydom 1969 (4) SA 304 (NC); McKerron Delict 7th ed at 33.

Counsel for plaintiff countered by submitting that the exception can only succeed if on all its possible meanings the particulars of claim B disclosed no cause of action. He contended that the allegation that "the damage was in all the circumstances foreseeable" carried the day. While I agree with...