Lanco Engineering CC v Aris Box Manufacturers (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Galgut J
• Judgment Date: 20 May 1992
• Citation: 1993 (4) SA 378 (D)
• Hearing Date: 31 March 1992
• Court: Durban and Coast Local Division

Galgut, J.:

The plaintiff, Lanco Engineering CC, claims damages from the defendant, Aris Box Manufacturers (Pty) Ltd. The plaintiff's claim is delictual. It is based upon the actio legis Aquiliae. The plaintiff hired a property in terms of a lease with the owner thereof, and its case is that the defendant unlawfully and intentionally interfered with the D plaintiff's contractual relationship with the owner in respect of the lease, causing the plaintiff thereby to suffer damages.

The owner of the property was the S Pillay Family Trust. It had acquired the property from Methlain Properties (Pty) Ltd on 1 December 1989. On 14 December 1989 the plaintiff concluded a lease agreement with the S Pillay E Family Trust in terms of which the plaintiff would take occupation of the property on 1 February 1990. The defendant was at that stage the tenant, having some years earlier concluded a lease with Methlain Properties (Pty) Ltd which had been extended from time to time and which was due to expire on 31 December 1989. The defendant did not vacate the property on 31 December 1989 as it was obliged to do. It in fact remained in occupation F until 2 April 1990, thereby preventing the plaintiff from taking occupation until that date. It was this holding over by the defendant which the plaintiff complains constituted the interference in its lease and therefore its contractual relationship with the owner. As a result of the defendant's holding over the plaintiff suffered damages which it now G claims from the defendant.

A party in the position of the plaintiff, having been prevented from taking occupation, would normally take action against the landlord for such relief as the law affords him, because a lessee has no real right in the property but only a personal right against the lessor. In the plaintiff's lease, however, clause 21E provided as follows: H

'21E Should the leased premises not be ready for occupation by the tenant upon the commencement date by reason of:

(a)

building operations not having been completed; or

(b)

their being in a state of disrepair; or

(c)

the failure of the previous tenant to vacate, or

(d)

any other cause whatsoever; I

then the tenant shall have no claim for cancellation of this lease or damages or other right of action against the landlord and the tenant agrees and undertakes to take occupation of the leased premises upon the date the leased premises will be available for occupation by the tenant. The landlord's decision as to when the leased premises will be available for occupation shall be final and binding on the tenant J and the lease shall commence on the date

Galgut J

A the leased premises are available for occupation and shall, mutatis mutandis, continue thereafter for the period set out in clause 4 of the schedule with the date of termination being extended accordingly.'

This clause of course effectively prevented the plaintiff from taking action against the owner for any relevant relief as a result of the B holding over by the defendant and it is for this reason that the plaintiff looks to the defendant for its damages.

The progress of our law in regard to an action under the lex Aquilia whereby a party to a contract sues a third party for interference in his contractual relationship has not been free from difficulty. The reported C cases which have dealt with it are collected and some of them discussed in works such as Van der Merwe and Olivier Die Onregmatige Daad in die Suid-Afrikaanse Reg 6th ed at 370-82; Van Heerden and Neethling Onregmatige Mededinging (1983 ed) at 149-52 (supplemented by an article by Neethling in (1991) 54 THRHR at 566-7, which dealt with developments since D 1983); McKerron The Law of Delict 7th ed at 268-9; Lee and Honoré The South African Law of Obligations 2nd ed at 306-7.

The earlier cases reflect a leaning toward the English law and, while the later cases have sought to bring the claims more strictly under the actio legis Aquiliae, broadening its ambit where necessary, it is clear that the last word has not been spoken by our Courts on the subject.

E The wrongful interference by a third party in another's contractual relationship is closely allied to and, depending on the facts of a given case, is sometimes part of what is commonly called unlawful competition. One way or the other, however, the legal principles ought to be the same. In this regard a reference to the works which I have mentioned and to the F more recent cases referred to in them reflects that there are at least three requirements to a successful claim based upon an interference in a contractual relationship. These are that there must be (a) an unlawful and (b) a culpable (in the broad sense) (c) interference.

The question of unlawfulness, and in particular by what yardstick such unlawfulness is to be determined, is a matter which, until the last decade G at any rate, provided our Courts with some difficulty. As I understand the cases it is, however, by now well settled that what determines whether any particular conduct is unlawful or not is the general criterion of reasonableness or the boni mores as perceived by the public. See Minister van Polisie v Ewels 1975 (3) SA 590 (A); Administrateur, Natal v Trust H Bank van Afrika Bpk 1979 (3) SA 824 (A); Marais v Richard en 'n Ander 1981 (1) SA 1157 (A) at 1168C; and Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at 498H. In regard to these cases it was said in Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 (4) SA 371 (D) at 384D that conduct will be regarded as unlawful

I '. . . when the circumstances of the case are of such a nature that it not only incites moral indignation but also that the legal convictions of the community demand that it ought to be regarded as unlawful and that the damage suffered by the plaintiff ought to be made good by the defendant'.

As far as the question of culpability is concerned, it is clear that dolus at least is necessary. Whether culpa will also suffice is a question J that has thus

Galgut J

A far not been settled by our Courts. It was left open by the Appellate Division in Dantex Investment Holdings (Pty) Ltd v Brenner and Others NNO 1989 (1) SA 390 (A) at 395G. In the case before me there is no need to go into this question, firstly, because counsel for the plaintiff accepts that dolus is necessary and, secondly, because, as I will show, dolus has in any event been proved. I will therefore assume that dolus is the B necessary ingredient to found a successful claim.

It is the question of the third requirement I have mentioned, the interference itself, that affords particular difficulty in the case before me. In this regard counsel for the defendant, in support of his contention that the interference must be 'deliberate and not merely incidental', C makes two submissions in regard to what he contends are necessary ingredients. The first is that the interference by the defendant must result in a breach of the contract by the party with whom the plaintiff contracted. (The relevance of this is that counsel for the plaintiff submits that clause 21E of the lease amounts to no more than a pactum de non petendo and that the owner therefore breached the lease by failing to D afford the plaintiff occupation on 1 February 1990. There can be no doubt, however, that clause 21E was not a mere pactum de non petendo and that in the result the owner's inability to afford the plaintiff occupation on 1 February 1990 did not constitute a breach of the lease by the owner.) The second submission made by counsel for the defendant is that such interference must consist of an inducement exercised by the defendant upon E such party to commit the breach.

In support of both submissions counsel for the defendant relies on a dictum in the judgment of Corbett J (as he then was) in Dun and Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd 1968 (1) SA 209 (C) F at 215G-H which reads as follows:

'Moreover, incorporeal property, such as a personal right flowing from contract, also enjoys a measure of protection in that a delictual remedy is available to a party to a contract who complains that a third party has intentionally and without lawful justification invaded his enjoyment of such property by inducing the other party to the contract to commit a breach thereof (see Isaacman v Miller 1922 TPD 56 at 61; Solomon v Du G Preez 1920 CPD 401).'

As I understand it, however, Corbett J did not thereby intend to define the limits of the action or the prerequisites thereof. He was, as I see it, merely mentioning in what circumstances the cases had hitherto afforded a remedy.

H It is perfectly true that most of the cases, and in particular the earlier ones, are cases where the contract concerned was breached as a result of an inducement by the defendant to do so. See, for example, McKriel v Keely 1 SC 32; New Kleinfontein Co Ltd v Superintendent of Labourers 1906 TS 241; Jansen v Pienaar 1 SC 276; Solomon v Du Preez 1920 CPD 401 and Isaacman v Miller 1922 TPD 56. The cases concerned must I however be seen in proper context. Firstly, they related to contracts of service, where the most common form of interference is doubtless enticing an employee away from his employer or inducing him to leave. Secondly, it was the influence of the English law on the question which led to the enticement or inducement being regarded as yardsticks in cases of that kind. The development of our law on the subject, as I see it however, J shows that,

Galgut J

A while an enticement or inducement constitutes an interference, conduct other than enticement or inducement may well constitute an interference for the purposes of the lex Aquilia. In the case before me the contract concerned is not a contract of service, although that does not of course mean...