THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 20747/2014

In the matter between:

CHRISTOS KOUKOUDIS                                            FIRST APPELLANT
PROC CORP 160 (PTY) LTD

SECOND APPELLANT

and

ABRINA 1772 (PTY) LTD

FIRST RESPONDENT
INTER-ACTIVE TRADING 626 (PTY) LTD      SECOND RESPONDENT

Neutral Citation: Koukoudis v Abrina (20747/2014) [2016] ZASCA 95 (2
June 2016)

Coram:
Leach, Majiedt and Pillay JJA and Victor and Baartman AJJA

Heard:
14 March 2016

Delivered: 2 June 2016

Summary: Delict ─ claim for damages for abuse of rights ─ requirements of

such a claim ─ requirements not established.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Tolmay J
sitting as court of first instance):
„1 The appeal succeeds with costs, including the costs of two counsel.
2 The order of the court a quo is set aside and replaced with the following:
(a)
The plaintiffs‟ claims are dismissed.
(b)
The plaintiffs are ordered to pay the defendants‟ costs jointly and

severally, the one paying the other to be absolved, such costs to include:
(i)
The costs of 27 and 28 January 2014 until 11h30;
(ii)
The qualifying expenses  of Prof P Botha, Mr S Pienaar, Mr P Dacomb

and Mr Regenass.
(c)
Each party is to pay its own costs for the period that the matter stood

down:
(i)
for preparation of the application for absolution of the instance and,
(ii)
due to the unavailability of counsel.‟

________________________________________________________________

JUDGMENT
________________________________________________________________

Leach JA (Majiedt and Pillay JJA and Victor and Baartman AJJA
concurring)
[1] The respondents sued the appellants for damages they had allegedly
suffered by reason of a delay in the completion and occupation of new business
premises which, so they contended, had been due to the appellants having
abused a right to object to the establishment of a township in terms of the
Town-planning and Townships Ordinance 15 of 1986 (the Ordinance). Their
claim was upheld in the Gauteng Division of the High Court, Pretoria and the
appellants were ordered, jointly and severally, to pay the first respondent the
sum of R237 644,08 and the second respondent the sum of R985 746,75. Their
appeal against that order is with leave of the court a quo.

[2] A myriad of issues were raised in the appeal relating to the cause of
action, as well as causation and the damages allegedly suffered. In order to deal
with these issues it is necessary to set out the relevant background
circumstances in some detail.

[3] On 30 July 2003 the first appellant, Mr Koukoudis, became the registered
owner of certain immovable property in Centurion, within the municipal area of
the City of Tshwane Metropolitan Municipality (the Municipality) to whom he
pays rates and taxes. He also conducts a business known as Mr Biltong at Shop
53 in the Mall@Reds, a shopping centre in Centurion owned by the second
appellant, Proc Corp 160 (Pty) Ltd (Proc Corp), a company of which Mr
Koukoudis is both a director and a 12% shareholder.

[4] The second respondent, Inter-Active Trading 66 (Pty) Ltd (Inter-Active),
is the owner of a steakhouse known as Thunder Ridge Spur which previously
carried on business in premises at the Mall@Reds pursuant to a written
agreement of lease concluded with Proc Corp with effect from 30 April 2003.
Its directors are a Mr A G Lubbe and his son, who share the same forenames. I
shall therefore refer to them individually as Mr Lubbe Snr and Mr Lubbe Jnr
and collectively as the Lubbes. The sole shareholder of the second respondent is
the Lubbe Family Trust. Effectively, Inter-Active is the alter ego of the Lubbes
who are also the directors of the first respondent, Abrina 1772 (Pty) Ltd
(Abrina) which is also wholly owned by the Lubbe Family Trust.

[5] The relationship between Proc Corp, as landlord, and Inter-Active, as
tenant, was not one free of difficulty. From the outset of the lease in 2003,
problems arose as the building had not been completed when Inter-Active was
due to move in and set up the steakhouse. Inter-Active had to arrange to do
certain of the outstanding work, and thought that the cost it had incurred in
doing so excused it from paying certain of its rentals as a result. Proc Corp
disputed this and, when Inter-Active failed to pay, it cut off its electricity.  This
led to court proceedings to have the electrical supply restored. Subsequently,
Inter-Active issued summons to claim payment of an amount it alleged Proc
Corp owed in respect of the cost of completing the building.

[6] Problems also arose in regard to charges levied in respect of rates
increases that Proc Corp sought to pass on pro rata to Inter-Active; whether
VAT was payable on certain items; whether Proc Corp had provided parking
for Inter-Active at the complex as agreed in terms of the lease; and precisely
what rentals were due from time to time. In addition, when Inter-Active wanted
to sell the steakhouse, Proc Corp was only prepared to consent to the proposed

purchasers taking over the business if certain conditions were met. As a result
the sale fell through.

[7] The rights and wrongs of these disputes are unnecessary to decide and are
mentioned merely as background circumstances to explain the tension between
the two parties. However, the relationship between Proc Corp and Inter-Active
soured and, before the lease expired at the end of April 2008, the Lubbes had
decided not to renew it.

[8] In the meantime, Mr Lubbe Snr had acquired the immovable property
more fully described as the Remaining Extent of Portion 92 of the farm
Swartkop 383, Registration Division JR Gauteng (Portion 92). He used Abrina
as the business vehicle for doing so, and it became the registered owner of the
property on 25 November 2005. Mr Lubbe Snr testified that he decided to erect
what he described as „his own building‟ on Portion 92 in which to conduct the
streakhouse business. I must mention that Portion 92 is also situated in
Centurion, and only some 600 metres from the Mall@Reds.

[9] In order to build the envisaged business premises on Portion 92, which
was zoned as „agricultural‟ at the time, it was necessary to have the property
declared a township under the Ordinance.1 Mr Lubbe Snr testified that the
development of a township was something beyond his expertise, and so he
sought the assistance of a town planner, Mr Hugo Erasmus. In terms of the
provisions of s 69(1) of the Ordinance, it was necessary for the owner of land to
apply in writing to the local authority within whose jurisdiction the land is
situated to establish a township. Consequently, on 24 January 2006, Mr
Erasmus applied to the Municipality on behalf of Abrina to establish a township

1 In terms of Proclamation No R161 of 31 October 1994, the administration of the Ordinance was assigned to
the Gauteng Province from the former Province of the Transvaal.

on Portion 92. Following this, the Municipality published a notice under s
69(6)(a) of the Ordinance calling for comment on the application. A few days
later, on 30 January 2006, the first appellant, Mr Koukoudis, filed the following
written objection to the establishment of the proposed township under s 69(7) of
the Ordinance:
„1.
The above application including the primary and secondary rights applied for, are

objected to.
2.
The application conflicts with town planning principles and the interests of

residents.
3.
The application does not comply with and the applicant has not complied with

requirements, principles and guidelines regarding land development and the

environment provided for in the Constitution, the Development Facilitation

Act, 73 of 1998, the National Environmental Affairs Act, 107 of 1998 and  others.
4.
The application does not address fundamental issues such as; environmental

impact assessments, traffic issues, and other requirements of the acts referred to in

paragraph 3.
5.
The application as lodged cannot proceed until the issues raised have been dealt with

and addressed.‟

[10] Mr Koukoudis was not the only one who objected to the township.
Further objections were filed on behalf of a Mr Pelser by a firm of town
planners, as well as by a Mr Swanepoel who, in turn, was supported by another
19 signatories. All these objections, save that of Mr Koukoudis, were
subsequently withdrawn. In a written representation to the Municipality dated
17 September 2007, Mr Erasmus stated that „the fact that the objectors
withdrew their objections is also an indication that they have accepted the fact
that the area is in the process of change from residential to commercial‟.
Whether that was an accurate reflection of the true state of affairs, or whether
the other objectors had been pressurised into doing so after having been

personally visited by the Lubbes or Mr Erasmus is, at the end of the day, of no
consequence in the light of the manner in which the case eventually presented
itself.

[11]   Be that as it may, both Mr Lubbe Snr and Mr Erasmus went separately to
see Mr Koukoudis to attempt to persuade him to withdraw his objection. When
Mr Lubbe Snr asked why he was objecting, Mr Koukoudis told him to speak to
Mr Anastasiadis. The latter is the managing director of Proc Corp and appears
to be its driving force. On a subsequent visit, Mr Lubbe Snr asked Mr
Koukoudis what he had against him, to which the reply was „I have a right to
object‟. When Mr Lubbe took Mr Koukoudis by the arm he was told in no
uncertain terms that he should not touch him, and later he received a letter from
an attorney in which it alleged that he had poked Mr Koukoudis with his finger
and was informed that any further contact with Mr Koukoudis should take place
through the attorney concerned. A visit by Mr Erasmus to Mr Koukoudis was
also unsuccessful and he, too, was referred to Mr Anastasiadis.

[12] When approached by Mr Erasmus, Mr Anastasiadis told him that he
refuses to withdraw the objection. As in fact Proc Corp had not filed an
objection, the utterances of both Mr Anastasiadis and Mr Koukoudis, together
with the fact that Mr Koukoudis did not attend the hearing before the municipal
committee regarding Abrina‟s application to develop a township, nor the
subsequent appeal proceedings to the Townships Board, (which was attended
by a representative of Proc Corp), leads to the inevitable conclusion that the
first appellant also acted on behalf of Proc Corp in lodging the objection. I shall
refer to this later.

[13] Applications for the development of townships take their time, as was
also the case in this instance. The Lubbes appear to have become impatient. In

about September 2007, Abrina started to construct the shopping centre it wished
to develop on Portion 92 by doing the necessary earthworks, and in December
2007 it started building. This was premature and unlawful, and on 25 February
2008 the Municipality issued it with a contravention notice in respect of its
building activities. This read as follows:
„During an investigation on 25/02/2008 at above-mentioned premises it was found that you
are in contravention of s 4(1) of the National Building Regulations and Building Standards
Act 103 of 1977 read with regulation A25(10) of the National Building Regulations
promulgated by virtue of Section 17(1) read with Section 17(3)(b) of the National Building
Regulations and Building Standards Act 103 of 1977.
In that you are erecting a building (NEW RESTAURANT) in prospect of which plans and
specifications are to be drawn and submitted in terms of the Act without having obtained the
prior approval in writing of the City of Tshwane beforehand.
You, the owner/occupant are hereby ordered in terms of Section 4(1) of the National
Building Regulations and Building Standards Act 103 of 1977, read with regulation A25(10)
of the National Building Regulations promulgated by virtue of Section 17(1) read with
Section 17(3)(b) of the National Building Regulations and Building Standards Act 103 of
1977, to cease all building work immediately and to submit the necessary plans and
specifications within 21 days to the City of Tshwane after receipt hereof and obtain written
approval, or alternatively to demolish such building and remove the material of which such
building consisted and any other material or rubbish from the premises.
Failing compliance with this notice, legal proceedings will be instituted against you without
further notice. This notice is final and no extension of time will be granted.‟

[14] When this notice was ignored, the Municipality brought proceedings as it
had threatened. In Pretoria High Court case 12170/2008, in which Abrina was
cited as first respondent and the Lubbes as second and third respondents
respectively, the Municipality sought an order directing them to cease all
building work. Subsequently, on 18 March 2008, an order was granted by
consent, postponing the matter sine die with the respondents (ie Abrina and the
Lubbes) undertaking not to conduct any building work on the property pending

a decision of the Municipality‟s planning department of an application under
s 7(6) of the National Building Regulations and Building Standards Act 103 of
19772 to permit provisional authorization to proceed with the erection of the
building.

[15] Abrina
immediately proceeded to apply
for such provisional
authorisation. But it was not prepared to await the outcome of its application,
and notwithstanding its undertaking incorporated in the court order of 18 March
2008, it recommenced its building operations the following month, presumably
expecting that its application was a mere formality and would be approved.
However its expectations proved to be false as, on 3 June 2008, the
Municipality refused the application in the following terms:
„Your application for provisional authorization to carry on with the erection of building work
on the above-mentioned property in accordance with Site Development Plan No
SDP1/1484/07 and Building Plan No B5/620/08 is hereby declined, due to the following
reasons:
1.
Site Development Plan is not approved, therefore building plans cannot be

recommended for approval.
2.
Township not yet promulgated, there is an objection in terms of rights.
3.
No service level agreement & guarantees for service in place.
4.
Comments from internal departments outstanding.
4.1
Regional Spatial Planning
4.2
Transport Engineering
4.3
Roads & Stormwater
4.4
Electricity
5.
Rights not being promulgated
6.
Bulk service agreement & guarantees not in place for service.‟

2 The section reads as follows:
The provisions of this section shall not be construed so as to prohibit a local authority, before granting or
refusing its approval in accordance with subsection (1) in respect of an application, from granting at the written
request of the applicant and on such conditions as the local authority may think fit, provisional authorization to
an applicant to commence or proceed with the erection of a building to which such application relates.

[16]   In the meantime, on 12 March 2008, the Municipality‟s city planning
committee had approved Abrina‟s application to establish a township.  On
learning of this, Mr Koukoudis, on 15 April 2008, lodged an appeal to the
Townships Board against that decision. Then, on 13 June 2008, after the
Municipality had refused Abrina‟s application for provisional authorisation to
build, and in the light of the fact that Abrina had in fact been building from
April 2008, Mr Koukoudis instituted interdict proceedings to prevent Abrina
from continuing to build in contravention of the existing town planning scheme.

[17] The events of 22 August 2008 are unlikely to be fondly remembered by
the Lubbes. The Municipality, presumably aggrieved at the breach of the
undertaking incorporated in the court‟s order of 18 March 2008, set down case
number 12170/2008 for further hearing and Vorster AJ issued an order that all
construction work cease forthwith. He further ordered Abrina and the Lubbes to
submit the necessary plans and specifications within 10 days from the date of a
final decision of the Gauteng Townships Board relating to the development of
the proposed township and to obtain a written approval of such plans;
alternatively should such approval not be granted, to demolish any building on
the premises. They were further ordered to pay costs on the scale as between
attorney and client.

[18] Not only was the Municipality‟s application granted against them, but Mr
Koukoudis‟s interdict application, also heard that day by Vorster AJ, was also
successful. In that matter, Abrina and the Lubbes were restrained and
interdicted from continuing with any building or building related activity on
Portion 92 in conflict with the provisions of the Tshwane Town Planning
Scheme of 2008. The Municipality was also restrained from granting approval

of any building plans on the property, or from granting provisional
authorisation to commence or proceed with the erection of a building on the
property in terms of s 7(6) of Act 103 of 1977, in conflict with the Tshwane
Town Planning Scheme. Once more, Abrina and the Lubbes were ordered,
jointly and severally, to pay the costs of that application on a scale as between
attorney and client. A counter-application in which Abrina and the Lubbes
sought an order authorising the Municipality to grant an order allowing them to
provisionally continue with the building process, was also dismissed.

[19]   Abrina and the Lubbes applied for leave to appeal against the interdict
granted in the application of Mr Koukoudis. Leave was refused on 9 September
2008, but they did not give up and applied to this Court for its leave to appeal.
Unsurprisingly, given the unlawfulness of their actions, that application was
dismissed on 26 May 2009. However, despite the terms of interdict, in
November 2008 Abrina continued with its building operations, doing plumbing
work and certain civil engineering on the site.

[20] In the meantime, on 2 October 2008, Mr Koukoudis‟s appeal to the
Townships Board was heard. On 6 February 2009, the Townships Board
recommended to the MEC of the Gauteng Department of Economic
Development that the appeal should be dismissed. In response to this, an
attorney acting on behalf of Mr Koukoudis made written representations to the
MEC in the form of a reply to the Townships Board‟s reasons. He recorded the
premature building construction activities of which Abrina had made itself
guilty without approved building plans; argued that Abrina had not established
a need for a restaurant and that such issue had not been properly addressed by
the Townships Board; and submitted that it was undesirable for there to be a
further development in a residential area for a number of reasons, including the
impact which the development would have on traffic.

[21]   Despite all his efforts, the MEC dismissed Mr Koukoudis‟s appeal on 2
July 2009. Meanwhile, notwithstanding the court orders against it, Abrina had
continued with its building activities on Portion 92. In October 2009 pilot
computer software was installed and the branding of the steakhouse it had built
was completed. This was all done before 28 October 2009 when the
Municipality finally approved the application under s 7(6) of the National
Building Regulations and Building Standards Act 103 of 1977 and granted
provisional authorisation to build. In addition, on 24 November 2009, acting
under s 14(1A) of that Act, the Municipality gave Abrina consent to use the
building before a certificate of completion had been issued. Then, by notice of
the Provincial Gazette of 7 December 2009, a township was declared on Portion
92. Two days later, approval of the building plans was given.  It appears from
this that, essentially, most of the building had been erected either unlawfully or
in conflict with court orders restraining the building operations.

[22] Having eventually built the new business premises on Portion 92, the
Lubbes relocated their steakhouse there. Thereafter, the Lubbes, or more
correctly their alter egos, the two respondent companies, instituted action
against the appellants, alleging that the initial objection by Mr Koukoudis and
the appeal to the MEC when it was over-ruled, had been unlawful, and seeking
to recover damages allegedly sustained through the project having been
delayed. As mentioned at the outset, this claim was upheld in the court a quo.

[23] On the face of it, Mr Koukoudis had acted in the exercise of rights
bestowed upon him by the Ordinance. The respondents, however, alleged that
he had acted with the specific intention of frustrating the development and
causing them financial harm. In doing so they relied upon the so-called

„doctrine of the abuse of right‟ which recognises that a right may be used in
circumstances which render its exercise unlawful.

[24]     The phrase „abuse of right‟ has been criticised, because a person who
abuses a right in fact acts without a right. See eg Prof J L Neels Tussen
regmatigheid en onregmatigheid: Die leerstuk van oorskrying van regte en
bevoeghede (Deel 3) 2000 TSAR 469 at 487-490 where the suggestion is made
that the phrase „excess of right (or entitlement)‟ would be more appropriate.
Similarly, Planiol and Ripert in their Traite elementaire de droit civil
commented:
„[T]he formula “abusive use of rights” is playing with words: if I use my right, my act is
legitimate, and when it is not legitimate, I am exceeding my right and acting wrongfully . . .
(A) right ceases where an abuse begins, and there cannot be an “abusive use” of any right for
the irrefutable reason that one and the same act cannot be both in accordance with the right
and contrary to it.‟ (Emphasis in original.)3
Thus a person either acts within the limitations of a right, in which event the act
shall be lawful, or beyond it bounds, in which event the action will be
unlawful.4 Nevertheless it is a phrase of convenience commonly used in legal
parlance and so, despite its strict theoretical short-comings, I shall use it for
purposes of this judgment.

[25] The unlawfulness of an action purportedly performed in terms of a right,
but for an improper purpose, has been recognised by the courts of this country.
For example, in Van Eck5 this court had to deal with the seizure of bags of rice,
not for the purpose allowed in terms of a war measure regulation, namely, to
afford evidence of a contravention, but in order to obtain possession of the rice

3 Traite elementaire de droit civil (10th ed. 1926), t. 2 at No. 871, p. 298, this translation being cited by the
Canadian Supreme Court in Houle v Canadian National Bank [1990] 3 SCR 122;1990 SCR Lexis 710, 1990
CANLII 58 (SCC).
4 See eg J Neethling T M Potgieter P J Visser Law of Delict 5ed (2006) at 102-103 on the authorities there cited.
5 Van Eck NO, and Van Rensburg NO v Etna Stores 1947 (2) SA 984 (A).

so as to further a food distribution scheme. In finding this to have been
unlawful, Davis AJA, in giving the unanimous judgment of this Court, said:
„Mr Milne also argued that the motive with which the seizure was effected was irrelevant,
for, he contended, if a man has a right to do an act, then the motive from which he exercises
that right is immaterial; even if he did it from a wrong motive, that cannot affect the validity
of his act. That proposition is, apparently, as a general rule correct in regard to the English
law . . . But it is of more doubtful application in our law. Gothofredus, in his Commentary on
the Regula Juris, “Jure suo qui utitur, nil dolo facit” (D.50.17.53), points out (p. 245 in fin.)
that there may be an exception to this rule in the case where “nocendi, tantum animo jure suo
quis utatur, neque enim malitiis hominum indulgendum est” (where anyone uses his right
only with the intent to injure another, for people‟s malice is not to be favoured). Voet, 39.3.4,
Schorer, Note 58, and D.39.3.1.12; 39.3.2.9 may be cited in favour of the existence of this
exception; and see Smith v. Smith (1914, A.D. 257, at p. 272 in fin.); Union Government v
Marais (1920, AD 240 at 247). I shall not, however, pursue this matter . . . for Mr. Milne’s
proposition can have no application to the present case. We are here not dealing with an
unlimited right to seize, conferred by law on the appellants and their officers and employed
by them from improper motives; we are dealing with a limited right, conferred on them by
law for one purpose only. While professing to have exercised that right for the purpose for
which alone it was conferred, in reality they have used it to effect quite a different purpose,
for which the law gave them no right to use it ─ a purpose indeed which that law by clear
implication forbade.‟ (Emphasis added.)

[26] It has also been held to have been unlawful for a competitor to induce a
rival‟s employers to terminate their employment, not in order to benefit from
such employees‟ services but to cripple or eliminate the business of the
commercial adversary.6 And in Bress Designs7(albeit in the field of alleged
unlawful competition rather than administrative law) Van Dijkhorst J stated,
correctly in my view, that:
„. . . a clear line should be drawn between acts of interference with the interests of another
when the object is the advancement of a person‟s own interest and such acts whose sole or

6 Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd & others 1981 (2) SA 173 (T) at 200F-G.
7 Bress Designs (Pty) Ltd v G Y Lounge Suite Manufacturers (Pty) Ltd & Another 1991 (2) SA 455 (W) at 475H
- 476A.

dominant purpose is the infliction of harm for its own sake. Whereas in law the advancement
of one‟s own economic interest is, generally speaking, a legitimate motive for action, there
can be no doubt that the community would condemn as contra bonos mores the malicious
destruction or jeopardising of a sound business through the marketing of identical furniture at
cut-throat prices for reasons of personal vindictiveness. I have no doubt that not only by the
community in general but also in the field of ethics and morality of the furniture
manufacturers such conduct is not acceptable, though copying each other‟s products may be
the order of the day.‟

[27]   The question of acting in pursuance of a right solely to harm another was
also addressed by this court in Millward v Glaser 1949 (4) SA 931 (A) where,
by way of example (the facts were very different8) the following was said in
regard to the law relating to neighbours:9
„If I dig a well upon my property, I may be fully aware of the fact that by doing so I am
going to diminish the supply in my neighbour‟s well. . . . If I do so with the expected result,
for the advancement of my own interests, my neighbour will have no ground of complaint.
Where, however, I do so not to further my own interests but in order to injure him, he may
have a remedy.‟10

[28] In regard to the requirements of a claim for abuse of right, Prof van der
Walt has said the following:
„It is difficult to formulate a general criterion for determining whether an abuse has been
committed. No hard-and-fast rules can be enunciated. Generally speaking there is an abuse
when the defendant has acted with the sole (or predominant) motive of harming another . . .
and without advancing a significant interest of his or her own. The subjective requirement of
a harmful motive can, it is submitted, convert a prima facie lawful act into a wrongful one
only if there is a substantial discrepancy between the harm suffered by the plaintiff and the
advantage gained by the defendant . . . . Where . . . the defendant‟s conduct serves to advance

8 The wife of a deceased alleged that her late husband‟s mistress had by deliberate and intentional acts of
persuasion made a will leaving his estate to her.
9 At 942.
10 A similar comment is to be found in Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A) at 107G-
108A.

a reasonable interest of his or her own, a bad motive is not in itself sufficient to indicate
wrongful conduct.‟11

[29]   Moreover, as Neethling, Potgieter and Visser also point out12 the basic
question is one of wrongfulness. In that regard it must be remembered that our
law is generally reluctant to recognise claims for pure economic loss, such as
the claim with which we are here dealing, as there always being the risk of
indeterminate liability to a wide array of persons.13 The element of
wrongfulness functions to curb such liability. It requires the conduct to be of
such a nature that public or legal policy considerations require it to be
actionable.14 As stated by the Constitutional Court in Le Roux, wrongfulness
„ultimately depends on a judicial determination of whether . . . it would be
reasonable to impose liability on a defendant for the damages flowing from
specific conduct‟ that „would in turn depend on considerations of public and
legal policy in accordance with constitutional norms‟. 15

[30] The weight of academic opinion is to the effect that conduct should not
be regarded as being unlawful where it advances a legitimate right of the person
exercising it, even if in doing so another may be prejudiced. This is apparent
from the comment of Prof van der Walt quoted above.16 Furthermore Prof J E
Scholtens, after an exhaustive examination of the old authorities and the law in
several other jurisdictions, concluded: 17
„[T]hat in order to constitute an abused right in our law both the subjective requirement that
an act be done with the sole or predominant intention to harm another and the objective

11 M van der Walt Delict: Principles and Cases 2 ed (1979) para 77.
12 J Neethling T M Potgieter P J Visser Law of Delict (5 ed) at 107.
13 Country Cloud Trading CC v MEC, Department of Infrastructure Development [2014] ZACC 28; 2015 (1)
SA 1 (CC) para 24              and the cases there cited.
14 Country Cloud paras 23-25.
15 Le Roux and others v Dey (Freedom of Expression Institute and Restorative Justice Centre as amici curiae)
[2016] ZACC 4;2011 (3) SA 374 (CC) 2011(6) BCLR 577 CC para 122.
16 See further Neels „Tussen regmatigheid en onregmatigheid: Die leerstuk van oorskrying van regte en
bevoegdhede‟ (Deel 4) (2000) TSAR 643 at 645-649.
17 J E Scholtens Abuse of Rights (1958) 75 SALJ 39 at 49.

requirement that the act serve no or anyhow no appreciable or legitimate interest should be
present.
The question is tentatively put forward whether there should not be a further requirement, viz
that no man would have reasonably acted in the manner complained of but for the intention
to injure. This would exclude liability for acts which a man is reasonably at liberty to do, for
instance refusing access to his property to a neighbour. Under this requirement there would
be no liability even if the refusal of access would harm the neighbour and were inspired by
malicious motives. Abuse of right is essentially an excess of right. What constitutes this
excess will depend on the nature of the right and circumstances of the case.‟

[31] This in my view is a correct reflection of our law, certainly in regard to
the first two requirements ─ as stated, albeit obiter, by this court in Brummer v
Gorfil Brothers.18 In this case it is unnecessary to go further and to consider the
further requirement tentatively advanced by Prof  Scholtens as the matter may
be resolved by considering the first two. In considering the question of the
appellants‟ liability, one must therefore have regard, first, to the subjective
requirement, namely, whether the objection to the development was done with
the sole or predominant intention to harm the respondents (or the Lubbes); and
then, second, the objective requirement, namely, whether the objection served
no appreciable or legitimate interest of the appellants.

[32] Before doing so, however, one further aspect needs to be addressed.
Counsel for the appellant argued, initially with confessed hesitation but with
waxing enthusiasm, that a claim could not lie where the right allegedly abused
was one bestowed by statute. In developing this contention, reliance was placed
upon comments of the late Prof R McKerron in his seminal work The Law of
Delict to the effect that liability would flow from an abuse of a proprietary right
but not from the abuse of other rights.19 This would appear to be the position in

18 Brummer v Gorfil Brothers Investments (Pty) Ltd & andere 1999 (3) SA 389 (SCA) at 412A-C.
19 R G McKerron The Law of Delict 7ed (1971) at 49-50.

certain Continental jurisdictions, in particular France and the Netherlands.20
Reference was also made to the views of the French author, Josserand, who
distinguished between three categories of rights: first, an absolute right in
respect of which the interests of society demand that there shall be no check on
its exercise so that, in their regard, the question of abuse cannot arise; second,
an egoistic right which may be exercised at will provided some material interest
is promoted; and third, a so-called altruistic right which can only be exercised
with due regard to the interest of others.21

[33] The active engagement of communities in the affairs of municipalities is
encouraged in our democratic constitutional system.22 In matters of local
government, including municipal land use planning, the right to object to the
establishment of a township and the right to appeal against the approval of a
township form part of a legislative scheme, founded upon the Constitution, that
both entitles and encourages individual members of society to actively
participate in municipal decision-taking. In the light of this, it was argued by the
appellants that the rights they had exercised fall within the category of „absolute
rights‟ as envisaged by Josserand; that the interest of society demands that such
may be used without any fear of recourse; and that insofar as their exercise
might cause a delay, that is the price to be paid for arriving at an informed
decision on future land use development as contemplated by the legal
framework in a demographic system of participatory governance.

[34] The argument is not without its attraction and is in line with the view that
„courts would embark on a very perilous and questionable course should they
enter into an inquiry as to motives, when the act which has caused injury is

20 Scholtens at p 48.
21 See H C „Gutteridge Abuse of Rights‟ 15 (1933-1935) Cambridge Law Journal 22 at 27-29.
22 See eg s 152 of the Constitution and the Local Government: Municipal Systems Act 32 of 2000.

permitted by law.‟23 The contrary standpoint is that, in all circumstances, it
should be regarded as wrongful to exercise a right with the sole or predominant
intention to cause harm to another and without appreciably advancing a
legitimate interest. Thus Prof Paul-Andre Crepeau has argued that:
„Essentially it must be recognized that, whatever its origin, a right can never be absolute.
Every right has a particular purpose: it is conferred to meet social imperatives or economic
needs, not to assuage instincts of vengeance or spitefulness.  . . .  A legal order, which is a
pale reflection of the moral order, unavoidably must accommodate egoism; in no case should
it tolerate malice.‟24

[35] My prima facie opinion is that no right, whether statutory or otherwise,
should be regarded as absolute and capable of being exercised solely to cause
harm without fear of the actor being held liable for abuse. For present purposes,
I am therefore prepared to accept, without finally deciding, that the abuse of a
statutory right is actionable and that, in the context of the present dispute, the
fact that Mr Koukoudis exercised a statutory right is in itself no bar to the
appellants being held liable. But due to the facts of this case, for the reasons that
follow no final decision need be taken on this issue.

[36] As already mentioned, the respondents‟ claim for damages is founded
upon an allegation that Mr Koukoudis opposed the development not to advance
any self-interest (the objective requirement of a claim for abuse) but solely to
inflict harm upon the respondents (the subjective element). In the event of both
these elements being established, considerations of public and legal policy
would in my view regard such conduct as being unlawful and actionable.
Indeed I understood it to be accepted by the appellants that if the respondents

23 P M Mignault Pierre Basile ‘The Modern Evolution of Civil Responsibility‟ (1927), 5 Can. Bar Rev. 1 at 12
also cited in Houle.
24 P A Crepeau  „Le contenu obligationnel d’un contrat’  (1965) 43 Can Bar Rev 1 at  26 – a translation cited in
Houle.

had discharged the onus of proving that to have been the case, liability would
follow.

[37] Dealing first with the subjective requirement. The respondents placed
considerable emphasis upon the contents of the minutes of a board meeting held
by Proc Corp on 3 December 2007, from which it appeared that Proc Corp‟s
management regularly scrutinised the Gazette for notices relating to proposed
developments in the area and, if there were any, objected to such developments.
These objections were not made in Proc Corp‟s name but were lodged either in
the name of its associated property management company, Anaprop, or as
happened in the instant case, in the name of one of its members. On the strength
of this, it was argued that Proc Corp would have acted in its own name had it
not been motivated by an ulterior purpose and that its predominant intention
had been in the past to object to and delay other developers in order to allow it
to make provision in its own shopping mall for the amenities envisaged in any
new development, thereby keeping other developers „out of the market‟. This,
so the argument went, was what happened in this case as well.

[38] The court a quo placed considerable reliance upon this, stating the
following in its judgment:
„A perusal of these minutes makes it clear that Proc Corp, through their managing agent
Anaprop had a strategy to object to developments that it regarded as competition, with the
purpose to delay those developments in order to stifle competition. There was a difference of
opinion between the directors of Proc Corp pertaining to the strategy followed. Some of the
directors were concerned that these objections could be perceived as economic sabotage. It is
clear that there were often no bona fide town planning issues at stake in these objections.
These minutes confirm Mr Lubbe and Mr Erasmus‟s testimony that the objections were made
with ulterior purposes. It also supports the evidence that Mr Anastasiadis was, in his capacity
as managing director of Proc Corp, behind these objections. It can therefore be accepted that
Proc Corp used Mr Koukoudis to object in the same way as Anaprop was used to oppose

developments as set out in the minutes. On an analysis of the evidence it would seem that the
only logical inference is that Mr Koukoudis lodged his objections to benefit Proc Corp. The
question that will ultimately have to be answered is if this strategy was lawful.
From the above the only logical inference that can be drawn is that the objections and appeal
were lodged with an ulterior purpose to delay and frustrate other developers and specifically
the plaintiffs.‟

[39] In my view, however, although correct in concluding that the objection
was intended to benefit Proc Corp, the court a quo erred in reaching the
conclusion that there was an ulterior purpose. The fact that Proc Corp had
attempted to cover the market on previous occasions does not mean that it was
not seeking to protect its own investment in the Mall@Reds but attempting to
ruin the Lubbes. Even if its actions in relation to other developers were
questionable, an issue not ripe for issue in these proceedings, the issue was not
whether it had always acted unlawfully but whether it acted unlawfully and in
abuse of its rights in the present case.

[40] When Mr Lubbe Snr testified he specifically alleged that the first
appellant had objected in order to destroy him.25 This may have been his
suspicion, but it was clearly an inference of fact that fell solely within the
domain of the trial court to determine in the light of the evidence placed before
it.  His statement that the first appellant wished to destroy him was, without a
factual basis having been laid, clearly inadmissible. Significantly, in an affidavit
opposing an application brought by Proc Corp in June 2008 to evict Inter-
Active from the leased premises at the Mall@Reds after the lease had expired,
Mr Lubbe Snr stated that Proc Corp‟s intention was „to financially ruin‟ Inter-
Active and the companies he controlled „which intention they have on
numerous occasions verbally conveyed to me‟. Despite this, when he testified in
the court a quo he made no mention of any such threats. He would surely have

25 He used the Afrikaans expression „wou my vernietig‟.

done so if they had been made, and the inevitable inference is that the
„numerous occasions‟ to which he had referred in the previous proceedings
were figments of his imagination.
[41] In any event, without direct evidence of such threats, whatever suspicions
Mr Lubbe Snr may have harboured as to Mr Koukoudis‟s motive in objecting
were irrelevant, and the trial court ought neither to have admitted his evidence
in that regard nor had any regard thereto. Similarly, the statement of Mr
Erasmus that he assumed that there may have been a vendetta between Mr
Lubbe Snr and Mr Anastasiadis, was pure speculation and lacked evidential
value. Despite this, as appears from the passage from the judgment quoted
above, the court a quo accepted the allegations of both Mr Lubbe Snr and Mr
Erasmus which it felt had been „confirmed‟ by the minutes. In this it
misdirected itself.

[42] For the reasons already given, it can be accepted that Mr Koukoudis, both
in objecting and appealing, acted not only on his own behalf but also on behalf
of Proc Corp. In the light of this, the respondents argued that the fact that Proc
Corp relied upon Mr Koukoudis to lodge the objection, and that Mr Koukoudis
failed to attend the hearings before either the Municipal Planning Committee or
the appeal to the Townships Board, showed that he had acted with an ulterior
purpose. But Mr Koukoudis himself had a not insubstantial shareholding in
Proc Corp and there was thus a mutuality of interest between them. In the light
of this common interest, it is irrelevant whether Mr Koukoudis or the
representatives of Proc Corp conducted the actual prosecution of the objection
proceedings. The fact that Proc Corp did not object in its own name is, in these
circumstances, no reason to infer that the objection was motivated by malice or
ulterior purpose.

[43] Nor does the fact that Standard Bank was prepared to take up the
premises in the Mall@Reds vacated by Inter-Active, at a high rental, show an
ulterior motive on behalf of the appellants, as the respondents further
contended. From Mr Lubbe Snr‟s own evidence, Standard Bank became a
potential lessee (and indeed took over the premises in due course) in 2008. This
was more than two years after the written objection had been filed by Mr
Koukoudis. It appears to be an irrelevant consideration in regard to whether the
objection in itself had been lodged for an ulterior purpose.

[44] The respondents also argued that the terms of the objection as originally
lodged, and the manner in which the matter proceeded thereafter, serve to
indicate an ulterior motive on the part of Mr Koukoudis. The objection read as
follows:
‘1.
The above application including the primary and secondary rights applied for, are

objected to.
2.
The application conflicts with town planning principles and the interests of residents.
3.
The application does not comply with and the applicant has not complied with

requirements, principles and guidelines regarding land development and the

environment provided for in the Constitution, the Development Facilitation Act, 73 of

1998, the National Environmental Affairs Act, 107 of 1998 and others.
4.
The application does not address fundamental issues such as; environmental impact

assessments, traffic issues, and other requirements of the acts referred to in paragraph

3.
5.
The application as lodged cannot proceed until the issues raised have been dealt with

and addressed.‟
The respondents stressed that Mr Koukoudis had not proceeded with the
objection in these terms but ultimately based it squarely on the absence of need,
desirability and sustainability of the proposed township, those being
requirements found in the regulations promulgated under the Ordinance. In
addition, they relied on the fact that Mr Koukoudis had deviated from the

original objection, but had argued that there was no need for a further restaurant
in the vicinity although, so Mr Lubbe Snr testified, whilst the application was
pending Proc Corp had allowed a number of food outlets to be opened in its
shopping mall. All of this, so it was argued, justified an inference of malice.

[45] I am unable to accept this argument. The application to establish a
township was terse in itself, and it could hardly have been expected of the
appellants to object in detail to issues which were not known to them. And the
fact that they did so by way of what was, effectively, a standard form that they
had used in the past, is in itself no reason to find that they had acted maliciously
with intent to cause harm. Moreover, the evidence of the respondents‟ own
town planner, Mr Schoeman, who was called as an expert, was that objections
are as a matter of course filed in broad terms and without the objectors „doing
their homework‟ and that the relevant issues crystallise as part of the process
that includes appeals against township board decisions. And even if the
appellants allowed other food dispensing outlets to be established in their mall,
their objection does not lead to the most probable inference being that they
wished to do the respondents harm.

[46] Importantly, in October 2007, Mr Lubbe Snr was approached by Proc
Corp through its managing agent and reminded of the option that Inter-Active
had to renew its lease for the premises it was renting in the Mall@Reds. And
when Mr Lubbe Snr testified, he stated that after the expiry of the lease, Proc
Corp had made an offer to Inter-Active to allow it to remain in the premises
until they were needed.26 At the end of the day, Inter-Active remained in
occupation of the premises in the Mall@Reds until November 2009. These facts
appear to me to be wholly inconsistent with an inference that the appellants
intended to destroy Inter-Active‟s business. Had that been the intention, rather

26 Volume 14 at 2675.

than seeking Inter-Active‟s business and allowing it to continue trading, one
would have expected Proc Corp to have refused to make rental space available
to Inter-Active to conduct business after its lease had expired.

[47] Indeed, Proc Corp clearly desired to have a Spur restaurant in the
Mall@Reds. Spur is a countrywide franchise having family appeal, and the
evidence of Mr Lubbe Snr establishes that the Thunder Ridge Spur had proved
to be extremely popular. A popular and successful franchise restaurant would
obviously attract custom, and the number of people passing through a shopping
mall carries the advantage of potential customers for all businesses conducted
there. It is therefore understandable that Proc Corp invited Inter-Active to
conclude a fresh lease shortly before its lease expired and that, after the expiry,
Proc Corp allowed Inter-active to stay on in its mall. None of this speaks of an
intention to injure.

[48] This also has important consequences relevant to the objective
requirement that has to be established by the respondents, to which I now turn.
Portion 92, to which the Lubbes eventually relocated to the Thunder Ridge
Spur, is only some 600 metres from the Mall@Reds. It is common cause that
the franchisor of the Spur steakhouse chain, Spur Group (Pty) Ltd, had set its
face in principle against Spur steakhouses being situated close to each other,
presumably for the reason that franchisees competing for custom devalue each
other‟s franchise.  Indeed the franchise agreement the Lubbes had with the Spur
Group granted the Lubbe Family Trust, as franchisee, a right of first refusal in
respect of the grant of any other Spur steakhouse situated within a radius of one
kilometre from the Thunder Ridge Spur. One of the consequences of  relocating
the Thunder Ridge Spur to Portion 92 would be, as appellants‟ counsel put it, to
„sanitise‟ the Mall@Reds for another Spur steakhouse. Taken with the
popularity of the Thunder Ridge Spur, as firmly established by the respondents‟

own evidence, this would clearly be detrimental to the volume of foot traffic
through the Mall@Reds. Simply put, customers who would have been drawn to
a Spur steakhouse in the Mall@Reds would instead go to Portion 92, a few
hundred metres away.  Consequently, the objection, if successful, would have
held a substantial commercial advantage to the appellants. And as the
Mall@Reds represented a capital investment by the appellants of some R320
million, the objection served as an attempt to preserve the advantages of this
substantial asset.

[49] In order to attempt to bolster their case, the respondents relied on the fact
that neither Mr Koukoudis nor Mr Anastasiadis gave evidence. In the light of
this, and relying upon well-known authorities,27 it was argued that the motive as
to why they had objected to the development was within their exclusive
knowledge and that their failure to testify justified an inference that their
evidence would damage their own case. Failure to testify by a party who is
available and whose actions lie at the core of the dispute is, of course, a factor
to be taken into account, but in doing so regard must be had to the strength or
otherwise of the case  that party has to meet.28 Whilst less evidence may well
suffice to establish a prima facie case where the issue at stake is peculiarly
within the knowledge of the opposing party, as is here the case, that cannot
convert a case founded upon pure speculation and faulty inferential reasoning
into a prima facie case. In my view the respondents case was so devoid of
cogency that there is no justification to draw any so-called „adverse inference‟
against the appellants for failing to testify nor to conclude as a result that they
had intended to harm  the respondents and had not in fact sought to protect their
commercial interest in the Mall@Reds.

27 In particular Galante v Dickinson 1950 (2) SA 460 (A) at 465, Elgin Fireclays Limited v Webb 1947 (4) SA
744 (A) at 749 and Gericke v Sack 1978 (1) SA 821 (A) at 827.
28 Titus v Shield Insurance Co Ltd 1980 (3) SA 119 (A) at 133E-F.

[50] Counsel for the appellant argued that the intention or motive in objecting
to the development „was obviously and clearly to protect commercial interest by
preventing the shopping centre from becoming sterilised for a Spur franchise:
every shopping centre wants a Spur restaurant‟. That is indeed the most
probable inference to be drawn from the evidence. That being so, both the
objection and the subsequent appeal against it not being upheld served to
protect a legitimate financial and commercial investment that the appellants had
in the Mall@Reds. As against that, there is no reason to draw an inference that
sole or dominant intention or motive on the appellants‟ part was to cause
personal ruin or financial harm to the respondents.

[51] I should mention that it was argued by the appellant that the social
interest  which Mr Koukoudis enjoyed and shared with other objectors who,
like he, are resident within the municipal area, had not been shown to have been
absent. A resident does have a social interest in whatever development may take
place, particularly a commercial development, in a residential area, but I did not
understand that Mr Koukoudis, in truth, relied upon this in his appeal which
was based solely upon the commercial interest he shared with Proc Corp.
Consequently, in considering the question of whether he abused his right to
object, I have not taken his social interest into account.

[52]  In any event, in the light of what I have set out above, the court a quo
erred in concluding that the respondents had successfully established that the
appellants should be held liable for having abused their right of objection. In
reaching that conclusion it found that the question whether an interest was
protected by the exercise of a right was to be answered in the light of
„reasonableness and fairness‟, which „implies the weighing-up of the benefits
that the exercise of the right has for the (appellants) as against the prejudice
suffered by the (respondents) as a result thereof‟. The authority relied upon in

support of this proposition were cases dealing with nuisance and disputes
between neighbours, arising from the impingement of one neighbour‟s right by
the exercise of the right of another. In the present case, of course, the appellants
enjoyed the right to object. The respondents, on the other hand, had no right to
develop Portion 92 which was impaired by the objection. All they had was the
entitlement to apply to develop the land within the statutory prescripts relevant
to such an application. The matter therefore did not turn, as the court a quo
appears to have thought, on whether bounds of reasonableness had been
exceeded and rendered the objection wrongful, but whether the respondents had
established both the subjective and objective requirements for an abuse of rights
ie whether the appellants had intended to cause the respondents harm and had
not acted to advance or protect a legitimate interest. In respect of both
requirements the respondents failed to prove an abuse.

[53] The appeal must therefore succeed. As the respondents failed to establish
a valid claim, it is unnecessary to deal with the diverse arguments that were
ventilated in this court in regard to the questions of causation and damage, and
whether the effect of whatever delays caused by the objection were off-set by
the respondents‟ illegal building operations conducted in breach of their
statutory obligations and in defiance of court orders granted against them.

[54] Turning to the question of costs, there is no reason for costs not to follow
the event. Both sides were agreed, correctly, that the matter was of a nature of
the employment of two counsel and was justified. There are however certain
particular matters relevant to costs that must be mentioned.

[55] It was recorded in the judgment a quo, that the respondents had conceded
that they were liable for the costs of 27 and 28 January 2014 until 11h30. In

paragraph 1 of the order granted by the court a quo, it was specifically ordered
that the respondents are to pay those others costs, and that order can stand.

[56] At the end of the respondents‟ case, the appellants applied unsuccessfully
for absolution from the instance. In paragraph 2 of the order of the court a quo,
the appellants were ordered to pay the costs of that application jointly and
severally, although each party was ordered to pay its own costs for the period
that the matter had stood down to allow the parties to prepare for the
application. The appellants argued that they should be entitled to those costs as
absolution ought to have been granted. The trial judge had a discretion as
whether to grant absolution. She probably exercised that discretion on an
incorrect factual basis, but it seems to me to be unnecessary to deal with the
correctness of her decision in that regard as I see no reason why a specific order
as to costs in respect of the absolution proceedings need be made. Applications
from the instance and their preparation all form part of the trial proceeding and
a specific order relating to those costs seems superfluous. The appellants
however suggested that each party should pay its own costs relating to the
period the matter stood down for the preparation of the application for
absolution. That order operates in favour of the respondents and so, if that‟s
what the appellants wish, I have no difficulty in granting the request.

[57] The court a quo made a specific order that each party should pay its own
costs as a result of the matter standing down due to the unavailability of
counsel. This was not attacked on appeal. I intend to repeat that provision in the
order made below.

[58] The appellants also sought the qualifying expenses of certain expert
witnesses in the event of the appeal succeeding. There was no objection by the

respondents to an order in that regard. This, too, will be reflected in the order
below.

[59] The following order is made:
„1 The appeal succeeds with costs, including the costs of two counsel.
2 The order of the court a quo is set aside and replaced with the following:
(a)
The plaintiffs‟ claims are dismissed.
(b)
The plaintiffs are ordered to pay the defendants‟ costs jointly and

severally, the one paying the other to be absolved, such costs to include:
(i)
The costs of 27 and 28 January 2014 until 11h30;
(ii)
The qualifying expenses  of Prof P Botha, Mr S Pienaar, Mr P Dacomb

and Mr Regenass.
(c)
Each party is to pay its own costs for the period that the matter stood

down:
(i)
for preparation of the application for absolution of the instance and,
(ii)
due to the unavailability of counsel.‟

______________________

L E Leach
Judge of Appeal

Appearances:

For the Appellants:

M M Oosthuizen SC

Instructed by:

Welgemoed Attorneys, Centurion

Symington & De Kok, Bloemfontein

For the Respondents:

M C Erasmus SC

(with him D J van Heerden)

Instructed by:

D P Du Plessis Incorporated, Centurion

Lovius Block, Bloemfontein
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:  The Registrar, Supreme Court of Appeal
Date:  2 June 2016
Status:  Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

Neutral Citation:
Koukoudis v Abrina (20747/2014) [2016] ZASCA 95 (2 June 2016)

The respondents sued the appellants in the Gauteng Division of the High Court, Pretoria
alleging that they had suffered damages by reason of the appellants having objected to the
establishment of a township, the result of which had led to a delay in them completing and
occupying new business premises. Although the appellants had acted in terms of an
Ordinance to object to the development of a township, the trial court held that they had
abused their right to do so. The court therefore ordered the appellants to pay substantial
damages to the respondent.

The appellants appealed against this order to the Supreme Court of Appeal which, today,
upheld their appeal. It held that the claim based on an abuse of right was one which should be
recognised, even though the right allegedly abused was one bestowed by statute. However, it
held that the respondents had failed to prove its allegation that the appellants, in objecting to
the proposed township, had acted with the ulterior purpose of causing them financial harm. It
found that the respondents had sought to protect a legitimate interest, namely, their
investment in another shopping mall and in doing so had not abused their rights. It therefore
held that the high court had erred in holding the appellants liable to the respondents for
damages. The appeal was allowed and the claim of the respondents dismissed.

---ends---