The claim for damages for abuse of rights must establish that the defendant exercised a right solely or predominately with the motive of harming another person and without advancing a significant interest of their own. If the person allegedly causing the harm was seeking to advance a reasonable interest of their own, a bad motive is not in itself sufficient to indicate wrongful conduct.
The plaintiff in Koukoudis v Abrina alleged that the defendant had abused a right to object to a development in terms of the Town-planning and Townships Ordinance 1986 with the deliberate intention of frustrating the development and causing the plaintiffs financial harm. The objection had delayed a development considerably.
The question is always whether the right was pursued solely to harm another.
The unlawfulness of an action purportedly performed in terms of a right but for an improper purpose has been recognised in various cases as a ground for claiming damages. But the question is always whether the right was pursued solely to harm another.
After an examination of the evidence the court found that the defendant exercised a statutory right to object to the development and the evidence was inconsistent with an inference that it was done solely to cause the plaintiffs harm. The claim was therefore dismissed.
The court left open two questions. Firstly, whether exercise of a statutory right can ever give rise to a claim for damages. The court indicated however that no right, whether statutory or otherwise, should be regarded as absolute and capable of being exercised solely to cause harm. This is the likely decision if that question has ever to be examined directly.
Secondly, the question was raised whether the remedy should require an intention to injure. The court did not decide the issue. It does not seem to be a necessary element and has not been a requirement in any previous case.
Thus for the present at least there are two requirements for abuse of rights claims, namely the subjective requirement that the right is exercised with the sole or predominant intention of harming the other party and secondly the objective requirement that it serves no appreciable or legitimate interest of the person allegedly causing the harm.