The SCA held that the threatened invasion of the rights of the owner under the lease was enough proof of reasonably apprehended injury.  It was also held that an interdict was an appropriate remedy.  This was despite the owners having the right to claim damages or cancel the lease.  The owner was entitled to enforce its bargain and to obtain the lessee’s promised rental while preventing the lessee from conducting itself in a manner that involves breaking the law.

V&A Waterfront Properties (Pty) Ltd and Another v Helicopter and Marine Services (Pty) Ltd (392/2004) [2005] ZASCA 87; [2006] 3 All SA 523 (SCA) (26 September 2005) per Howie P

Excerpts from the judgment (without footnotes)

[6]     The lease contains two provisions which are material now.  In the first the lessee undertook to comply strictly with the regulations and rules of, inter alia, the third respondent.[1] The second forbade contravention by the lessee of any statutory regulations relating to or affecting the carrying on of the lessee’s business in the premises.[2]

. . . . .

[10]   The defence which the respondents sought to raise in this respect has sometimes been called ‘collateral challenge’.  Its applicability was examined and explained by this court in Oudekraal Estates Pty Ltd v City of Cape Town and Others[1] In brief, it is applicable in proceedings where a public authority seeks to coerce a subject into compliance with an unlawful administrative act.[2] If these proceedings are not of that nature then the grounding order will have legal effect until set aside by a reviewing court.

. . . . .

[15]   In the circumstances the proceedings a quo were not such that the defence of collateral challenge was available.  The grounding order therefore had to be regarded as valid.  The consequence is that its infringement by the respondents would have brought about a breach of the lease if indeed the first respondent bore the obligations of lessee.

. . . . .

[18]   The contention overlooks that in legal parlance ‘assignment’ normally means the transfer of both rights and obligations but that its interpretation is in any event dependent on context.[1] If use of ‘assigned’ in addition to ‘ceded’ is not enough to indicate the transfer of more than rights, the context makes it unarguably clear that the first respondent assumed not only the rights of lessee but the obligations as well.

[19]   It follows that the respondents’ threat to ignore the grounding order amounted at the same time to a threat to breach the lease.

[20]   The respondents contended nevertheless that breach did not constitute ‘injury’ for purposes of the second essential requirement for final interdict relief which was expressed in the classic formulation as ‘injury actually committed or reasonably apprehended’.[2] The argument was that ‘injury’ in that phrase had necessarily to entail physical harm or pecuniary loss.  The appellants had consequently to show, so the contention proceeded, that the helicopter was unairworthy and that its operation involved risk to life and property.

[21]   The argument is founded on neither authority nor principle.  The leading common law writer on the subject of interdict relief [3] used the words ‘eene gepleegde feitelijkheid’ to designate what is now in the present context, loosely referred to as ‘injury’.  The Dutch expression has been construed as something actually done which is prejudicial to or interferes with, the applicant’s right.[4] Subsequent judicial pronouncements have variously used ‘infringement’ of right[5] and ‘invasion of right’.[6]  Indeed, the leading case Setlogelo[7] was itself one involving the invasion of the right of possession.  Of course it is hard to imagine that a rights invasion will not be effected most often by way of physical conduct but to prove the necessary injury or harm it is enough to show that a right has been invaded.  The fact that physical means were employed or physical consequences sustained is incidental.

[22]  In the present case therefore the threatened invasion of the first appellant’s rights under the lease constituted proof of reasonably apprehended injury.  It was not necessary for the appellants’ success to show that the helicopter was unairworthy or what the chances were of a fatal or destructive crash.

[23]   Coming to the third and final requirement, the respondents submitted that an interdict was not the only appropriate remedy.  It was said that the first appellant could sue for damages or cancel the lease.  This argument cannot prevail.  The first appellant is entitled to enforce its bargain: to obtain the lessee’s promised rental while preventing the latter from conducting itself in a manner that involves breaking the law.  The only ordinary remedy which provides it with the necessary protection is an interdict.  Cancellation would be quite the opposite of that to which the first appellant is entitled.  And damages would be difficult to prove if possible to prove at all.

Lessors of commercial complexes stipulate for provisions like those in issue because they want, understandably, to maintain the standing or repute or safety or appeal of their properties.  However, whether a particular lessee’s contraventions of the law, and consequent breaches of its lease, have led to financial loss because aspirant or even existing tenants do not want, in view of the contraventions, to be involved in the complex, could be exceedingly problematic to prove.

[24]   For these reasons the application in the court below should have succeeded and the appeal must succeed.

[25]   It remains to mention that a good deal of time was devoted in the appeal to the question whether the appellants were, by interdict proceedings, really seeking contractual relief in the form of specific performance and, if so, whether they needed to fulfil the requirements for a final interdict.  In reliance on the views of Professor RH Christie The Law of Contract, 4th ed, 618-9, they argued that there was no such need.  One may indeed say that had the prayer expressly been for specific performance many of the same issues may have arisen as have arisen.  However, an interdict having been sought, and the requirements for it having been met, it is unnecessary to decide whether the appellants’ argument was right.