Molteno Brothers and Others v South African Railways and Others

• Jurisdiction: South Africa
• Judge: Wessels CJ, Curlewis JA, Stratford JA and De Villiers JA
• Judgment Date: 29 April 1936
• Citation: 1936 AD 321
• Court: Appellate Division

Wessels, C.J.:

The appellants, who were the applicants in the Court below made an application to the Cape Provincial Division for a mandamus (1) directing the respondents to inform the applicants as to the procedure to be followed in pre-cooling deciduous fruit intended for export during the coming season, and (2) directing the respondents to grant applicants permission to make their own arrangements as to pre-cooling such varieties of their fruit as in their opinion would be injured by the procedure to be followed. The applicants also asked for an interdict restraining the respondents (a) from adopting, in the pre-cooling of such deciduous fruits as applicants may consign for export, the same procedure as was adopted during the 1934/1935 season; (b) from subjecting such fruit to a rapid forced cooling blast of 25 degrees F.; (c) from using a direct cold blast upon the fruit which is below the freezing temperature of the most delicate fruit in the cooling chamber, or below the temperature likely to cause chilling injury to any fruit in such chamber, whichever may be the higher. Both the request for a mandamus and for an interdict were refused by the Court below. The appellants ask us to reverse that decision. I shall first deal with the request for a mandamus and then consider the application for an interdict.

Wessels, C.J.

Act 17 of 1914 made provision for the inspection of fruit to be exported for purposes of sale. This Act required exporters to give notice of their intention to export fruit, and then an inspector examines and either passes or rejects the fruit. It also provided that the Governor-General may make regulations to carry out the purpose of the Act, and inter alia a regulation in respect of the period for which, and the temperature at which, fruit intended for export shall be kept in cold storage at the port of shipment or elsewhere prior to shipment. Act 16 of 1922 made further provisions for the inspecting and grading of fruit and other agricultural products. In 1925, however, the Legislature altered the method of controlling the fruit export. An Act was passed (No. 12 of 1925) by which the control of the fruit export was placed in the hands of a board. This Act was repealed in 1926 by Act 53 of 1926, but the policy of vesting the control of the export of fruit in a statutory body was maintained. This Act established a Perishable Products Export Control Board as a corporate body and gave it power to enter into contracts with shipowners and others for the conveyance or storage of perishable products. It was given the right, inter alia, to control the export of perishable products and to perform such other functions in respect of the export and shipment of perishable products from the Union and the pre-cooling thereof as may be prescribed by regulation. This Act took away from the exporter the right to export his fruit after inspection and approval and provided (sec. 8(1)) that after a fixed date "no person shall export or ship any perishable product in refrigerating chambers or ventilated holds from the Union save under contract or other arrangement made by, through or with the consent of the board." Sec. 14 (1) gives the Governor-General the power to make regulations to carry out the provisions of the Act and, inter alia, regulations "prescribing the function and degree of supervision which the board shall be entitled to exercise over cold stores in which perishable products for export are placed for pre-cooling or storage." The following regulations which bear on this case have been made in terms of sec. 14 (1).: -

"28. (a) Any perishable product intended for export shall, after it has been passed for export by the Government inspector, be within the control of the board, who shall be entitled to keep such product, prior to shipment, in such store as it may think fit, regardless

Wessels, C.J.

of the question whether the product was or was not consigned to any particular cold or other store. (b) It shall not be competent for the owner of the product, after it has been passed for export by the Government Inspector, to withdraw such product, whether already placed in cold store or not, save with the sanction of the board and, subject to such conditions as the board may impose."

"32. All cold stores intended for the pre-cooling or storage of export perishable products as defined in the Act are subject to the approval of the board, which will be guided in coming to a decision by the certificate of a technical officer of the Department of Agriculture as to insulation, air-circulation, refrigerating capacity and suitability of handling facilities."

Secs. 33 and 34 provide that cold stores approved of by the board shall keep logs of temperatures as directed by the board, and all such books must be available for inspection by the board. Sec. 39 provides: "The personnel of all supervisors and of the staff generally engaged in a Government cold store holding export perishable products defined in the Act, and of the operators in the engine-room serving such store, shall be subject to the approval of the board."

The regulation which makes provision for the temperature at which fruit is to be kept in the cold store approved of by the board is not framed under Act 53 of 1926 but under Act 17 of 1914. It provides: -

"5. (a) All fruit which is to be shipped in refrigerated holds shall be pre-cooled in a pre-cooling store or depôt approved by the Perishable Products Export Control Board, provided that where in the opinion of that board such pre-cooling is not reasonably practicable or expedient, or suitable pre-cooling facilities are not available, the said board or its duly authorised representative may authorise in writing that such pre-cooling may be dispensed with. (b) All refrigerating chambers containing fruit not...