Natal Fresh Produce Growers' Association and Others v Agroserve (Pty) Ltd and Others

• Jurisdiction: South Africa
• Judge: Howard JP
• Judgment Date: 19 January 1990
• Citation: 1990 (4) SA 749 (N)
• Hearing Date: 13 December 1989
• Court: Natal Provincial Division

Natal Fresh Produce Growers' Association and Others v Agroserve (Pty) Ltd and Others
1990 (4) SA 749 (N)

1990 (4) SA p749

Citation	1990 (4) SA 749 (N)
Court	Natal Provincial Division
Judge	Howard JP
Heard	December 13, 1989
Judgment	January 19, 1990

Flynote : Sleutelwoorde

Negligence — Liability for — Wrongful conduct — Exception H to particulars of claim as lacking averments to sustain action for interdict on basis of lex Aquilia — Failure to allege facts from which inference or conclusion to be drawn that defendant's activities in manufacturing and distributing hormonal herbicides wrongful — I Manufacture and distribution throughout South Africa of hormonal herbicides registered for sale in terms of Fertilisers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36 of 1947 for use as agricultural remedies prima facie lawful activities — Not rendered J unlawful by use to detriment of some by third parties for whose

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A conduct manufacturers and distributors not responsible — Manufacture and distribution of herbicides not amounting to procuring, instigating or encouraging such use so as to make manufacturers legally responsible for products' users' actions — Manufacture and distribution constituting causa sine qua non of such use but not sufficient to saddle B manufacturers with legal responsibility — Failure to allege facts to support extension of concept of wrongfulness to cover novel situation — Grossly unreasonable to brand manufacturer's actions unlawful in absence of allegations giving rise to policy considerations militating in favour of such extension.

Practice — C Pleadings — Exception — Rule that Court obliged to take pleadings as they stood for purpose of deciding exception — Operation of rule limited to allegations of fact and cannot be extended to inferences and conclusions not warranted by allegations of fact — Principle also not obliging Court to stultify itself by accepting facts D which are manifestly false and so divorced from reality that they could not possibly be proved.

Practice — Parties — Locus standi — Growers' association — Objects of promoting and protecting interests of growers of all kinds of fresh produce — No direct and substantial interest in action to interdict manufacture and distribution of hormonal herbicides — No legal interest E prejudicially affected by judgment — Damage to fresh produce of some members not hindering association in objects — At best indirect interest not sufficient to confer locus standi to join proceedings.

Headnote : Kopnota

F In an action based on the lex Aquilia, a plaintiff must allege and prove facts to show that the defendant's conduct is wrongful. To determine whether it is wrongful the conduct is measured against a criterion of reasonableness representing the legal convictions of the community. The decision as to whether the conduct is wrongful involves policy considerations and entails evaluating and balancing the conflicting interests involved with due regard to the social consequences of categorising conduct as wrongful. In line with the Court's conservative G approach to the extension of the actio legis Aquilia, it will be extended only if positive policy considerations favouring such extension are shown to exist.

Defendants, in an action for an interdict restraining certain of their conduct, excepted to plaintiffs' particulars of claim. They alleged that plaintiffs had failed to allege sufficient facts to justify the conclusion that defendant's conduct was wrongful. Ex facie the particulars of claim, the defendants did no more than manufacture and distribute hormonal herbicides duly registered for sale in terms of the H Fertilisers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36 of 1947, activities which were prima facie lawful. Defendants alleged that such activities were not rendered unlawful by the fact that the herbicides were used to the detriment of some by third parties for whose conduct the defendants were not legally responsible. To hold otherwise, they alleged, would involve an extension of the concept of wrongfulness in Aquilian liability to a new situation, an extension not warranted by the general criterion of reasonableness and inimical to public policy I amounting to an unjustified interference with defendant's freedom of trade. Plaintiffs pointed to the particulars of claim which contained allegations of fact to the effect that (a) any use of hormonal herbicides anywhere in South Africa resulted in damage to fresh produce in the Tala Valley, (b) such damage could not be prevented except by eliminating the use of herbicides throughout South Africa, (c) the use of herbicides was caused, accommodated and encouraged by their manufacture and distribution, and (d) therefore the damage was caused by J the manufacture and distribution of

1990 (4) SA p751

A such herbicides. They contended further that such particulars set out a cause of action established by authority and involving no extension of the Aquilian action. Plaintiffs also contended that for the purpose of deciding the exception the Court was obliged to take the pleadings as they stood, assuming the truth of the allegations contained therein.

Held, that the principle that a Court was obliged to take the pleadings as they stood for the purpose of determining whether an exception to them should be upheld, was limited in operation to allegations of fact B and could not be extended to inferences and conclusions not warranted by the allegations of fact.

Held, further, that such principle did not oblige a Court to stultify itself by accepting facts which were manifestly false and so divorced from reality that they could not possibly be proved and the Court could not accept as fact the allegation that any use of herbicides anywhere in South Africa resulted in damage to fresh produce growing in the Tala Valley.

Held, further, that the allegation that the use of hormonal herbicides C was 'caused, accommodated and encouraged' by their manufacture and distribution was not an allegation of fact but an inference or conclusion not entirely warranted by the facts.

Held, further, that there was no allegation that the defendants used, procured or instigated the use of herbicides by others and, while the manufacture and distribution of the products undoubtedly facilitated their use, that did not amount to procuring, instigating or encouraging D such use so as to make defendants legally responsible for the actions of the products' users.

Held, further, that the only connection between the activities of defendants and the damage-producing use of the herbicides by others was that the manufacture and distribution facilitated such use so that it could be regarded as a causa sine qua non of the use, but that in itself was not sufficient to saddle the manufacturers with legal responsibility for the conduct of the users nor was it sufficient to place plaintiffs' E cause of action in the established or traditional category of damage to property which was limited to damage to property caused by the defendant himself or by his agent or employee or some other person for whose actions he was legally responsible.

Held, further, with regard to the argument that if the use of the herbicides anywhere in South Africa inevitably resulted in damage then F it followed that the manufacture and distribution of such herbicides facilitating such use caused the damage, that, the logic of such reasoning aside, the argument had to be rejected because it was based on the false premise that the facts alleged, namely any use of the herbicides anywhere in South Africa resulted in damage to the fresh produce in the Tala Valley, could be proved.

Held, furthermore, bearing in mind that the scope of the Aquilian action would not be extended to new situations unless there were positive policy considerations favouring such an extension, that the onus was on G the plaintiffs to make such allegations regarding such policy considerations and they had vouchsafed no particulars of the extent of the use of the herbicides or the effect such an interdict as was sought would have on users of herbicides, the agricultural sector and the economy as a whole.

Held, accordingly, that it would be grossly unreasonable to brand the defendants' activities as wrongful merely because such herbicides had been used to the detriment of growers of fresh produce in the Tala H Valley by one or more unidentifiable persons over whom the defendants had no control and for whose conduct they were not legally responsible.

Held, therefore, that the plaintiffs' allegations of fact contained in their particulars of claim did not give rise to policy considerations favouring the extension of the concept of wrongfulness in Aquilian liability to cover defendants' conduct and the exception had to be upheld.

Held, further, with regard to the argument that first plaintiff lacked I locus standi to sue for the relief claimed, that the legitimate interest alleged by plaintiff which it claimed it was entitled to protect, namely promoting and protecting the interests of growers of all kinds of produce, did not amount to a direct and substantial interest in the subject-matter of the action which could be prejudicially affected by the judgment.

Held, further, in this regard, that it had not been alleged that the wrongdoing of the defendants was directed towards the Tala Valley J growers because of their

1990 (4) SA p752

A membership of the first plaintiff nor that first plaintiff...