Fourie NO en 'n Ander v Stadsraad van Potgietersrus (148/84) [1985] ZASCA 83; [1987] 1 All SA 16 (A) (16 September 1985)

Fourie NO en 'n Ander v Stadsraad van Potgietersrus (148/84) [1985] ZASCA 83; [1987] 1 All SA 16 (A) (16 September 1985)

The Supreme Court of Appeal held that the respondent, as lessor, was under a common law obligation to provide the appellants with undisturbed use of the leased land for grazing, as stipulated in the lease agreement. The pollution of the grazing land by plastic bags from the respondent's adjacent dumping site constituted an external disturbance that rendered the land unusable for its intended purpose. The court found that the footstoots clause did not exempt the respondent from liability for such external disturbances, especially where the source was under the respondent's control. The respondent failed to take reasonable steps to prevent or remedy the pollution, and did not discharge the...

Citation
[1985] ZASCA 83
Parties
Appellant: Philippus Johannes Fourie N.O.; Appellant: Jacobus Steenkamp; Respondent: Stadsraad van Potgietersrus
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
16 September 1985
Case Number
148/84
Procedural Posture
Civil Appeal / Appeal From the Transvaal Provincial Division
Outcome
Appeal upheld with costs. The orders of the court a quo are set aside and replaced with absolution from the instance in favour of the appellants.
Judges
Joubert, Trengove, Hoexter
Legal Topics
Lease of Land, Commodus Usus, Footstoots Clause, Burden of Proof, Remedies for Breach, External Disturbance
Land and Property Civil Procedure Lease of Land Commodus Usus Footstoots Clause Burden of Proof Remedies for Breach External Disturbance

Case Brief

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Parties

Philippus Johannes Fourie N.O.

Appellant

Jacobus Steenkamp

Appellant

Stadsraad van Potgietersrus

Respondent

Procedural Posture

Civil Appeal / Appeal From the Transvaal Provincial Division

Legal Issues

  1. 1 Whether the respondent, as lessor, was obliged to ensure undisturbed use of the leased land for grazing purposes.
  2. 2 Whether the presence of plastic pollution from the respondent's adjacent dumping site constituted a breach of the lease.
  3. 3 Whether the footstoots clause in the lease excluded the respondent's liability for external disturbances.

Ratio Decidendi

The Supreme Court of Appeal held that the respondent, as lessor, was under a common law obligation to provide the appellants with undisturbed use of the leased land for grazing, as stipulated in the lease agreement. The pollution of the grazing land by plastic bags from the respondent's adjacent dumping site constituted an external disturbance that rendered the land unusable for its intended purpose. The court found that the footstoots clause did not exempt the respondent from liability for such external disturbances, especially where the source was under the respondent's control. The respondent failed to take reasonable steps to prevent or remedy the pollution, and did not discharge the...

Court Disposition

Appeal upheld with costs. The orders of the court a quo are set aside and replaced with absolution from the instance in favour of the appellants.

Orders

  • Absolution from the instance is granted with costs in respect of the respondent's claim.