Makulu Plastics & Packaging CC v Born Free Investments 128 (Pty) Ltd and Others 2013 1 SA 377 (GSJ) : recent case law

• Author: J. Scott
• DOI: 10.10520/EJC145894
• Published date: 01 January 2013
• Date: 01 January 2013
• Pages: 620-632

620

Onlangse regspraak/Recent case law

Makulu Plastics & Packaging CC v Born Free

Investments 128 (Pty) Ltd and Others

2013 1 SA 377 (GSJ)

Interference with contractual relationship – extension of existing categories for

purposes of granting relief – requirements for granting of interdict to prevent

interference – obligations of landlord in terms of contract of lease as alternative

basis for relief

1Introduction

The delict of interference with a contractual relationship as a species of

damnum iniuria datum, warranting the institution of an Aquilian claim to

enable a party suffering harm in consequence of such interference, has

received but scant attention in South African law in recent times. For this

reason alone the handing down of a judgment on the basis of this specific

form of delict is noteworthy.

The rules of English law pertaining to the tort of “interference with

contractual relations” or “inducing breach of contract” have exerted a

strong influence on the rules of the South African law of delict in this

respect (see eg Van der Merwe Die Beskerming van Vorderingsregte uit

Kontrak teen Aantasting deur Derdes (1959) 119 sqq, demonstrating a

reliance on English precedent in early South African case law; on this

action in general, see McKerron The Law of Delict (1971) 270-275; Van

der Merwe & Olivier Die Onregmatige Daad in die Suid-Afrikaanse Reg

(1989) 370-382; Neethling & Potgieter Neethling-Potgieter-Visser Law of

Delict (2010) 306-309; Loubser, Midgley et al The Law of Delict in South

Africa (2010) 230-233). However, in Lanco Engineering CC v Aris Box

Manufacturers (Pty) Ltd (1993 4 SA 378 (D) 380D) it was pointed out that

“the later cases have sought to bring the claims more strictly under the

actio legis Aquiliae, broadening its ambit where necessary ...”.

In this note an evaluation of the judgement of a full bench of the

Gauteng South High Court (Johannesburg) will be given, with specific

reference to its value in respect of the development of the delictual claim

for redressing harm flowing from an interference with a contractual

relationship.

2 Facts and Judgment

The appellant (applicant in the court a quo), a tenant of the premises of

the first respondent, had, pending the finalisation of an action to be

instituted by it, urgently – but unsuccessfully – applied for orders

designed to prevent the appellant from: (i) entering into an agreement