Airports Company South Africa Soc Limited v Airports Bookshops (Pty) Limited t/a Exclusive Books (945/2015) [2016] ZASCA 129; [2016] 4 All SA 665 (SCA); 2017 (3) SA 128 (SCA) (27 September 2016)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2016
>>
[2016] ZASCA 129
|

|

Airports Company South Africa Soc Limited v Airports Bookshops (Pty) Limited t/a Exclusive Books (945/2015) [2016] ZASCA 129; [2016] 4 All SA 665 (SCA); 2017 (3) SA 128 (SCA) (27 September 2016)

Links to summary

THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 945/2015
In
the matter between:
AIRPORTS
COMPANY SOUTH AFRICA SOC LIMITED

APPELLANT
and
AIRPORTS
BOOKSHOPS (PTY) LIMITED T/A
EXCLUSIVE
BOOKS

RESPONDENT
Neutral
Citation:
ACSA
v Exclusive Books
(945/2015)
[2016] ZASCA 129
(27
September 2016)
Coram:
Lewis,
Shongwe, Willis and Zondi JJA and Potterill AJA
Heard:
12
September 2016
Delivered:
27
September 2016
Summary:
Contract:
where
a lease is terminable on the giving of reasonable notice, the lease
must be interpreted to determine what is reasonable in
the
circumstances; an application for eviction of a lessee must be
determined on the basis of the averments made by the applicant
that
are not disputed by the respondent, and the version of the respondent
that is not implausible, far-fetched or not credible.
ORDER
On
appeal from:
Gauteng
Local Division of the High Court, Johannesburg (Dodson AJ sitting as
court of first instance): judgment reported
sub
nom Airports Company South Africa Ltd v Airport Bookshops (Pty) Ltd
t/a Exclusive Books
2016
(1) SA 473
(GJ).
The
appeal is dismissed with the costs of two counsel.
JUDGMENT
Lewis
JA (Shongwe and Zondi JJA and Potterill AJA concurring)
[1]
The appellant, Airports Company South Africa Ltd (ACSA), entered into
a lease in respect of premises at the O R Tambo International

Airport, Johannesburg, with the respondent, Airport Bookshops (Pty)
Ltd t/a Exclusive Books (Exclusive) in March 2009. The contract

followed a tender process and was for a period of five years,
backdated to 1 September 2008, terminating on 31 August 2013.
Exclusive
successfully ran a bookstore at the premises for the full
period of the lease.
[2]
By mid-August 2013 ACSA had still not started the process necessary
for the renewal of the lease or the award of a new tender
either to
Exclusive or anyone else. Accordingly, on 15 August 2013, after some
negotiation, ACSA and Exclusive, signed an agreement
that recorded:
‘
We
refer to previous negotiations regarding the extension of the . . .
lease agreement that expires on 31 August 2013.
The
said lease agreement is, notwithstanding anything to the contrary
contained in the relevant agreement, hereby
renewed on month on
month at the minimum monthly rental
of R585,761.70 excluding VAT.
This
letter will form an integral part of the above lease agreement but it
does not waive, extend or change any of the terms and
conditions of
the lease agreement, except as herein stated.’ (My emphasis.)
[3]
Exclusive remained in occupation of the premises and continued to
trade there. When ACSA issued a request for bids in respect
of the
premises on 4 December 2013, Exclusive submitted a bid, in effect to
remain the lessee, before the deadline for submission
in January
2014. In June 2014, ACSA informed Exclusive that its bid had been
unsuccessful and that it could request a ‘debriefing’

within 21 days. Exclusive did make such a request, but before the
debriefing, on 18 June 2014, it was given notice to vacate the

premises by 31 July 2014. Exclusive promptly applied, on 11 July
2014, for the review and setting aside of the tender award, alleging

that it had been made in conflict with a number of the provisions of
the Promotion of Administrative Justice Act 3 of 2000 (PAJA).
It
cited ACSA and the allegedly successful tenderer, Amger Retailing
(Pty) Ltd (Amger), as respondents.
[4]
Despite the application to review and set aside the award of the bid
to Amger, Exclusive was met with an urgent application
for eviction
brought on 27 August 2015. The application was struck from the roll
for want of urgency and was heard in the ordinary
course by Dodson AJ
in the Gauteng Local Division of the High Court, Johannesburg, in May
2015. Dodson AJ dismissed the application
for eviction but granted
leave to appeal against his order to this court.
The
versions of the parties in the application
[5]
It is important to note at the outset that the eviction order sought
was in application proceedings. The court a quo was bound
to accept
those facts averred by ACSA that were not disputed by Exclusive, and
Exclusive’s version in so far as it was tenable
and credible.
The simple
Plascon-Evans
[1]
test, repeated so often in this and other courts, and as adumbrated
recently in
National
Director of Public Prosecutions v Zuma
,
[2]
required the court a quo to accept the version of Exclusive in so far
as there was any dispute of fact and its version was not
far-fetched,
not credible or implausible.
[6]
The factual dispute between the parties centered on the
interpretation of the letter recording the extension of the lease.
ACSA’s version of the meaning of the phrase ‘month on
month’ in the letter quoted was that the lease was a monthly

tenancy, terminable on one month’s notice. Accordingly, said
ACSA in the founding affidavit, it’s termination of the
monthly
tenancy by giving six weeks’ notice, was ‘reasonable’.
The extension agreement, it said, ‘was specific
in terms of the
duration thereof and  . . . there was no ambiguity or
uncertainty on the expiry thereof’. The lease
had been
terminated and Exclusive was bound to vacate the premises.
[7]
Exclusive put up a very different version. In its answering
affidavit, Mr B Trisk, its chief executive officer, pointed out
that
the eviction application was brought as a matter or urgency, and
Exclusive had been given very little time (one day) to file
its
answer: it had in fact done so in four days. Trisk pointed out that
the application should not be viewed in isolation because
there was a
dispute pending between it and ACSA about the award of the tender to
Amger. He attached the papers in the review application,
which had
been brought shortly before, and asserted that:
‘
Exclusive
Books contends that, until the review and a valid tender process has
been finalized, Exclusive Books is entitled to continue
in
occupation. It currently occupies in terms of a lease
terminable
on reasonable notice which, in the circumstances, means reasonable
notice upon a valid tender process being finalized.
[My
emphasis.]
The
applicant [ACSA] is aware of Exclusive Books’ defence and
contentions, yet resorted inappropriately to these motion
proceedings.’
The
dispute about the duration of the lease was thus immediately
apparent. Trisk attached correspondence between the parties and
their
attorneys to demonstrate the differences between them, none of which
was adverted to in the founding affidavit.
[8]
The defence raised by Exclusive was that the tender in respect of the
premises was awarded not to it but to Amger in a process
that it
alleged was tainted by illegality and fell to be reviewed and set
aside. Trisk set out three bases for the review. These
were: (a) ACSA
had indicated that Exclusive had failed to comply with certain
requirements of the request for proposals (the RFP),
when in fact
ACSA had had a discretion and had failed to put its mind to the
reasons for the failure, which had been set out in
detail in the bid
documents: this amounted to a breach of s 3 read with ss 6(2)
(c)
,
(d)
(e)
or
(f)
of the PAJA; (b) ACSA had misread parts of the bid documents in
respect of rental requirements and had thus again been in breach
of
the sections referred to in (b); (c) ACSA had given important
information about the premises and their use to Amger but had
not
advised Exclusive of the same information. This was a further breach
of various provisions of the PAJA.
[9]
The founding affidavit in the review application, attached to Trisk’s
answering affidavit in the eviction application,
was of course
considerably more detailed. But the essence of the defence based on
the unlawfulness of the tender award was clearly
set out, and not
merely contained in the attachment, as ACSA attempted to argue.
[10]
Trisk continued:
‘
At
all material times . . . the parties contemplated that the
respondent’s tenancy would not be terminated before the
conclusion
of a valid  and lawful tender process and the lawful
and valid award of a tender for occupation of the shop. This is
particularly
so since the parties contemplated that Exclusive Books
may be the successful tenderer so there would be no sense in it being
required
to vacate only later to return. Conversely, Exclusive Books
would not itself give notice of termination or vacate the premises
prior to the tender process being finalized as there would be no
substitute until a new tenant was secured and the premises could
not
stand vacant until then.
To
the extent, therefore, that the lease was terminable on notice, such
notice would in the particular circumstances have to be
reasonable.
The reasonableness of such notice would depend on all the
circumstances, including but not limited to the question
whether a
valid and lawful tender process in respect of the shop had run its
course, culminating in the valid award of a tender
to a tenant (which
could be Exclusive Books).’
[11]
He concluded, after pointing out that ACSA had failed to respond to
Exclusive’s Uniform Rule 53 request for the record
in the
review application, at the time of deposing to the answering
affidavit in the eviction application, that the review application

should be determined first. If it succeeded, a new award would have
to be made before ACSA could give reasonable notice to Exclusive
to
vacate the premises.
[12]
In its reply, ACSA did not controvert any of the defences raised by
Exclusive. It did not deal with Exclusive’s version.
It did not
claim that the review was spurious. Instead, it raised a new argument
– that the extension of the lease was invalid
for want of
compliance with s 217 of the Constitution which requires that when an
organ of state, which ACSA is, contracts for
goods or services it
must do so in accordance with a system which is fair, equitable,
transparent, competitive and cost-effective.
Since the extension
agreement did not follow a fair and open tender process, it was
invalid, the contention went. ACSA did not
pursue this proposition in
arguing the appeal and I need say no more about it. (The court a quo
found that there were exceptions
to the general requirement in s 217
and that the extension agreement was such an exception and was valid.
I need make no finding
in this regard.)
The
decision of the court a quo
[13]
Dodson AJ considered that the case ACSA made out in its founding
affidavit was based on its interpretation of the contract.
That was,
as I have said, that it was entitled to give one month’s notice
to terminate the lease. He found, against ACSA,
that the extension
agreement included a tacit term that neither party was entitled to
terminate the lease on notice ‘until
completion of a valid and
lawful tender process to identify a new tenant’. He considered
also that Exclusive was entitled
to challenge the lawfulness of the
tender process by way of a collateral challenge, which he considered
to have been mounted successfully
on the grounds set out in Trisk’s
answering affidavit, as amplified by the affidavit in the attached
review application.
The court considered in detail the nature of the
breaches of the provisions of the PAJA alleged by Exclusive and
concluded that
the tender had been made unlawfully, and that ACSA was
thus not entitled to terminate.
Issues
on appeal
[14]
ACSA appeals against all these findings. It argues that the tacit
term is contrary to the express terms of the extension agreement
(on
its version a monthly tenancy terminable on a month’s notice),
and that the challenges to the lawfulness of the tender
award, being
made only in an attachment to the answering affidavit, cannot be
sustained. I consider that it is not necessary to
consider whether
there was a tacit term at all. Whether the lease was terminable on a
month’s notice, or on reasonable notice,
which is dependent on
the circumstances, depends on the interpretation of the lease
extension itself. And since ACSA did not deal
at all with the
challenges raised by Exclusive to the tender award, they fall to be
considered on Exclusive’s version alone.
The
nature of the lease
[15]
The original lease was for a fixed period of five years. It was
extended on a ‘month on month’ basis because of

particular circumstances, obviously known to both parties at the
time. The reason for the extension was that ACSA had failed to
start
a tender process timeously, and by mid-August 2013 had but a couple
of weeks before it was faced with empty premises at the
end of
August. The extension letter written to Exclusive on 15 August by
ACSA refers to previous negotiations regarding the extension
of the
lease agreement that would expire within two weeks. It also stated
that, notwithstanding the extension, all other terms
of the agreement
would remain in force. It was clearly anticipated that Exclusive
would remain in occupation until the bid process
was finalized.
[16]
ACSA argues, however, that the lease was a monthly tenancy (month on
month), terminable on a month’s notice. This meant
that either
party could give a month’s notice to terminate at any time,
whether or not the tender process was concluded.
Exclusive could thus
vacate the premises, leaving ACSA without a key tenant, or ACSA could
terminate the lease despite not having
a tenant to replace Exclusive.
[17]
Exclusive, on the other hand, argues that the lease is one of
indefinite duration, terminable on reasonable notice, and whether

that notice is reasonable depends entirely upon the factual context.
The fact that rental is payable monthly does not mean that
the lease
is a monthly lease only: it is no more than an indication that the
lease may be terminated on a month’s notice.
Thus the lease
became of indefinite duration, terminable on reasonable notice.
‘Month on month’ meant no more than
that the duration was
no longer for a fixed term, as the lease was in the first place. In
Wille’s
Principles of South Africa Law
,
[3]
the author writes that the duration of the lease is for the period
that the parties have agreed expressly or impliedly.
‘
An
express agreement may provide that the lease shall endure for a
definite time, short or long; or until a certain event takes
place
(which is bound to occur); or the duration may be at the will of the
lessor, or of the lessee; lastly, the lease may be periodic,
ie the
lease continues from week to week, month to month, or year to year
(according to the period expressly or impliedly agreed
upon) until it
is terminated by reasonable notice given by either party.’
(Footnotes omitted.)
[18]
Similarly,
Cooper
Landlord & Tenant
[4]
states:
‘
A
periodic lease continues until it is terminated by notice given by
either party. In the absence of agreement to the contrary,
notice
must be given a reasonable time before the date on which a party
decides to terminate the lease. The period of such notice
must be
such that the lessor has a reasonable opportunity of letting his
premises or the lessee of finding other premises. A day’s

notice is considered reasonable in the case of a daily lease; a
week’s notice in the case of a weekly lease; and a month’s

notice in the case of a monthly lease; but there is no fixed ratio
between the period of the lease and the notice period.’
[19]
In
Tiopaizi
v Bulawayo Municipality
[5]
De Villiers JA stated:
‘
Where
the parties have not agreed upon a definite time, the law requires
reasonable notice to be given by the one to the other .
. . . What
constitutes such reasonable time is nowhere laid down . . . .
Grotius
,
eg, states that in the case of a house the notice should be at a
convenient time so that the lessor may have an opportunity of
letting
his house, and the lessee of providing himself with another house.’
[20]
In
Wasmuth
v Jacobs
,
[6]
a full court held (per Levy J):
‘
[W]here
there is a lease with no terminal point, that is, a periodic or
open-ended lease, eg a week to week or month to month lease,
the
common law imposes a legal duty on the lessor to give reasonable
notice to terminate the lease.’
The
interpretation of the extension of the lease
[21]
In this matter, whether the notice given by ACSA to Exclusive was
reasonable in the circumstances must depend on the interpretation
of
the extension agreement having regard to the factual matrix.
[7]
In addition, a commercial contract must be interpreted so as to
favour a commercially sensible construction.
[8]
[22]
In Exclusive’s answering affidavit it was alleged that the
parties contemplated that the lease would continue until the

conclusion of the tender process.  If that were not so, and the
lease could be terminated by either party on a month’s
notice,
the results would be distinctly contrary to the commercial realities
of which the parties were aware. It would mean that,
if Exclusive
were ultimately the successful bidder, it might be required to vacate
on a month’s notice, only to return to
the same premises after
the award of the bid. Both parties knew that Exclusive might be the
successful bidder: they could not possibly
have intended that either
of them could terminate, Exclusive leaving the premises vacant, only
to return with all its stock and
re-employed staff a short while
later. Implicitly, the tender process had to be a valid one such that
the successful bidder would
have no obstacles in the path of
occupying the premises as soon as possible after the bid award was
made.
[23]
This interpretation was not in any way controverted by ACSA in its
reply. It did not show that the interpretation of the lease
for which
Exclusive contended was untenable and implausible. And ACSA did not
show that its interpretation – that the lease
was a monthly
tenancy terminable on one month’s notice – was correct
such that it proved that the reason for the continued
occupation by
Exclusive was unlawful.  It was required to show that the
purported termination of the lease on one month’s
notice was
lawful.
[24]
It is trite that when claiming eviction an owner must aver and prove
its ownership
[9]
and that the
occupier is in possession. If the owner alleges more than is
necessary to vindicate its property, as ACSA did by alleging
that the
lease had been terminated on one month’s notice, it must show
that the termination was lawful. In
Myaka
v Havemann
[10]
Davis AJA settled some uncertainty in this regard by approving
statements of Hathorn JP in
Karim
v Baccus
[11]
and Greenberg J in
Boshoff
v Union Government
,
[12]
that once an owner has admitted to parting with possession by virtue
of an agreement such as a lease, or a sale on instalments,
he is
bound by the admission, and bears the onus of proving that the reason
for the possession has come to an end. The owner must
prove lawful
termination.
[25]
The incidence of the onus was discussed in depth by Jansen JA in
Chetty
v Naidoo,
[13]
which confirmed the correctness of the approach in
Myaka
.
He said:
‘
It
is inherent in the nature of ownership that possession of the
res
should
normally be with the owner and it follows that no other person may
withhold it from the owner unless he is vested with some
other right
enforceable against the owner (eg a right of retention or a
contractual right). An owner, in instituting a
rei
vindicatio
,
need, therefore, do no more than allege and prove that he is the
owner and that the defendant is holding the
res
– the onus being on the defendant to allege and establish any
right to continue to hold against the owner . . . But if he
goes
beyond alleging merely his ownership and the defendant being in
possession (whether unqualified or described as “unlawful”

or “against his will”) other considerations then come
into play.
If
he concedes in his particulars of claim that the defendant has an
existing right to hold (eg, by conceding a lease or hire-purchase

agreement), without also alleging that it has been terminated . . .
his statement of claim obviously discloses no cause of action.
If he
does not concede an existing right to hold, but, nevertheless, says
that a right to hold now would have existed but for a
termination
which has taken place, then
ex
facie
the statement of claim he must at least prove the termination, which
might, in the case of a contract, also entail proof of the
terms of
the contract.’
[26]
ACSA alleged a lease and a termination. It was therefore incumbent on
it to prove valid termination. It did not even try. It
did not deny
Exclusive’s allegations and evidence in its answering affidavit
that the tender process was unlawful and thus
the termination was
unlawful. Instead it relied on a new defence – that the lease
upon which it had relied in its founding
papers was invalid, an
argument, as I have said, not pursued on appeal. Accordingly, the
court must rely on Exclusive’s version,
which is entirely
plausible and credible and makes complete commercial sense of the
extension agreement. I consider that the parties
intended that
Exclusive would remain in occupation from month to month (and not for
a further five years) until a lawful tender
process was completed and
either Exclusive or a new lessee was awarded the bid. That is what
Exclusive said was contemplated, and
ACSA did not contest that in
replying to the affidavits. Nor did it attempt to show that
Exclusive’s interpretation was in
any way implausible or not
credible.
[27]
During the hearing of the appeal two spectres flowing from this
interpretation of the extension agreement were raised in argument.

One was that it was improbable that the parties had contemplated that
the lease would endure until a valid tender process was concluded,

because Exclusive would then have the benefit of occupation for what
might be a lengthy period, until all processes had been exhausted.

The suggestion was that there might be no provision for increase of
the rental to take into account the ravages of inflation in
the event
that the lease endured for a long period. That seems to me to be
unlikely, given that the terms of the original lease
would probably
have made provision for increases in rental, and remained applicable,
as the extension agreement expressly said.
But the court does not
know what the provisions were because ACSA has not told us. It could
easily have raised that in response
to Exclusive’s defence.
[28]
Secondly, it was suggested that if we recognized Exclusive’s
claim to remain in occupation until the tender process is
validly
concluded, we would be giving licence to every lessee, dissatisfied
with the outcome of a tender  process for the
lease of premises,
and who wished to remain in occupation, to claim that the tender
process was invalid. The answer to that is
that a lessor who seeks
eviction of a tenant from premises after it has awarded a tender to
another must show that the termination
was valid in the
circumstances. ACSA could have done just that by showing that
Exclusive’s attempt to review and set aside
the tender was
fanciful or without warrant or just a dilatory tactic. Instead, it
virtually ignored the application for review,
which was instituted
before it sought eviction. That spectre must also go back into the
shadows.  In all the circumstances,
I consider that ACSA has not
proved that it had a right to terminate the lease with Exclusive on
one month’s notice.
[29]
The appeal is dismissed with the costs of two counsel.
_______________________
C
H Lewis
Judge
of Appeal
Willis
JA (Dissenting)
[30]
I have read the judgment prepared by Lewis JA. I regret that I cannot
agree with her that the appeal should be dismissed. My
reasons
follow.
The
failure of ACSA to allege that it is the owner of the premises
[31]
As I understand the law, there is no need for a lessor to allege that
it is the owner of the premises where eviction is sought
by the
lessor relying on the terms of a lease agreement that had been
concluded between the parties, more especially where
– as
in this case – there is no dispute about who is lessor and who
is lessee and that the right to occupy derives
from the lease in
question.
[14]
The circumstances of this case are completely different from those in
Myaka v
Havemann
,
[15]
Karim v
Baccus
,
[16]
and
Boshoff
v Union Government
,
[17]
upon which Lewis JA relies. I therefore consider that what Lewis JA
has said in paras 24 and 25, concerning the need for an owner
to
allege and prove its ownership, is irrelevant for the purposes of
deciding this matter. I accept, however, that ACSA bears the
onus to
prove lawful termination of the lease.
The
written agreement of lease between the parties
[32]
Lewis JA has set out the relevant portions of the written agreement
between the parties, upon which this case depends, which
takes the
form of a letter addressed by ACSA to Exclusive, to which Exclusive
appended its agreement on 30 July 2013. In order
to facilitate the
reader’s understanding of the flow of my reasoning concerning
the critical issues in this case, I shall
repeat the vital parts of
the agreement. They read as follows:
‘
Dear
Sir/Madam,
AGREEMENT
OF LEASE BETWEEN AIRPORTS COMPANY SOUTH AFRICA – OR TAMBO
INTERNATIONAL AIRPORT AND AIRPORT BOOKSHOP (PTY) LTD T/A
EXCLUSIVE,
DATED 01 SEPTEMBER 208 INRESPECT OF SHOP DFE 02: INTERNATIONAL
DEPARTURES AIRSIDE
We
refer to previous
negotiations
regarding the extension of the
above mentioned lease agreement that expires on 31 August 2013.
The
said lease agreement is, notwithstanding anything to the contrary
contained in the relevant agreement, hereby renewed on month
on month
at the minimum monthly rental of R585 761.70 excluding VAT.
This
letter will form an integral part of the above lease agreement but
does
not waive, extend or
change any of the terms and conditions of the lease agreement, except
as herein stated
.
Please
sign this copy and return it to us, in order that we have the records
amended.’ (Emphases added.)
[33]
I shall refer to the lease agreement that expired on 31 August 2013
as the ‘background document’
.
In my opinion, the
following features of the agreement, concluded between the parties in
July 2013, clearly stand out:
(a)
It
was
ad
hoc
in
character;
[18]
(b)
It
was the result of negotiations between the parties;
(c)
It
was concluded between experienced persons of business, dealing with
each other as equals;
(d)
It
would operate on a month to month basis;
(e)
It
makes no reference to any tender invited by ACSA;
(f)
Other than
as stated therein, it does not waive, extend or change any of the
terms and conditions of the lease that was to expire
on 31 August
2013;
(g)
The
risk for ACSA and Exclusive was mutual: either party could find
itself inconvenienced, at short notice, by the non-renewal of
the
lease.
The
interpretation of the written agreement between the parties
[34]
It is trite that contracts must not only be construed according to
the ordinary grammatical meaning of the words used therein,
but also
regard must be had to context.
[19]
In my view the plain, ordinary and grammatical meaning of the words
(even if the phrase ‘renewed on month on month’
was not
entirely felicitous) permits no regard being had for the tender that
is at issue in this case. A plain reading of the contract
indicates
that, once the time period of the background document had expired,
Exclusive had no right to occupy the premises, unless
there was a
renewal. As there was no renewal beyond 31 July 2014, there was
thereafter no right existing for Exclusive to remain
in occupation
thereof.
[35]
The absence of a renewal served a dual function: it not only brings
the lease to an end but also serves as a notice to vacate.
The
agreement does not permit any room for holding over on the lease
while issues imprecise as to the time upon which Exclusive
was to
vacate are left open either for negotiation between the parties or,
failing their reaching an agreement, for a court to
determine.
[36]
Moreover, in my respectful opinion, an interpretation to this effect,
in the highly competitive environment of vending in the
international
departures lounge at the busiest airport in Africa, is not only
absurd but could also never, even remotely, have
been within the
contemplation of the parties.
[20]
[37]
As Lewis JA observed in
North
East Finance (Pty) Ltd v Standard Bank of South Africa Ltd
,
context or the factual matrix is ever-important in the interpretation
of contracts.
[21]
Provided rental payments are not disproportionate to turnover,
shop-keeping at a busy international airport lounge is a paradise
for
traders. There is a captive market of thousands of affluent customers
with time and money to spare. Both ACSA and Exclusive
would have been
aware of this commercial reality at the airport: it is highly
desirable to be a tenanted shopkeeper at an airport
such as this and
ACSA would have found no difficulty in finding one. That ACSA would
not have wanted to lose time would not only
have been a matter of
critical importance to it but would have been a fact of which
Exclusive would have been fully aware.
[38]
A booksellers’ position in such a market is especially
advantageous. The market consists of travellers who are keen to

acquire reading material with which to relieve the tedium of the
long-haul flights that await them. Exclusive’s disappointment

as an unsuccessful tenderer is readily understandable. Its
disappointment cannot, however, be conjured into  a right to
stave
off ACSA’s prima facie right to decide for itself whom it
wishes to have as its tenants and another tenant’s prima facie

right to take occupation of the premises in question. The legal
processes available for the review of tenders by ‘organs
of
state’ may inhibit freedom of contract but they do not tear it
to shreds.
[39]
Even when context is taken into account, no reading of the agreement
that makes the respective obligations of the parties conditional
upon
the tender is justified. In context, the agreement, unadulterated by
any ‘constructive’ interpretation, makes
eminently good
commercial sense: ACSA would have a tenant paying rental and
Exclusive would be able to continue trading (presumably
profitably in
view of its long tenancy and reluctance to let go of it) on an
interim basis, until such time as there was greater
clarity and
certainty for the parties. As experienced persons of business,
neither ACSA nor Exclusive could have intended so commercially

foolish an agreement as to hock themselves to a condition that could
tether their effective operations.
[40]
That a contract must be interpreted so as to give it a commercially
sensible meaning, appears to be now well-established.
[22]
A sensible reading of the agreement between the parties is that the
parties intended that the tender would be irrelevant to their

respective obligations in terms of the actual agreement itself:
either party could terminate the lease upon one month’s notice

for whatever reason or motive it liked. The outcome of the tender may
have been relevant as to whether the parties entered into
a new
contract of lease but that is another matter entirely.
The
other issues that need to be considered
[41]
As a plain reading of the contract is commercially sensible and does
not, in my opinion, make the occupation of the premises
contingent
upon a consideration of the ‘reasonableness’ of the
notice to vacate the premises, the issue seems to me
to be
irrelevant. Even if it were relevant, however, I disagree with Lewis
JA that ACSA has failed on the question of the reasonableness
of its
notice to Exclusive. I shall now deal with this and the other issues
that were raised in argument before us.
The
reasonableness of the notice to vacate the premises
[42]
On 23 June 2014 ACSA gave Excusive Books notice to vacate the
premises by 31 July 2014. After further prompting by ACSA, Exclusive

responded on 15 July 2014 by saying that it had not been given
‘reasonable notice’. It went on to say ‘reasonableness

would be influenced by all circumstances, including a new tenant for
the premises concluding an agreement consequent upon a valid
tender
process’ and that the termination of the lease ‘cannot
possibly be implemented until such time that our client’s

[review] application has been dealt with by the court.’
[43]
On 17 July 2014, ACSA responded by email contending that the notice
period was reasonable ‘for the type of business’
that
Exclusive conducted. ACSA pertinently refers to this in its founding
affidavit.
[44]
In its answering affidavit, Exclusive disputes the reasonableness of
the notice, contending that reasonableness ‘would
depend on all
the circumstances, including but not limited to the question of
whether a valid and lawful tender process in respect
of the shop had
run its course’. The circumstances have, however, been
specified: the contract was renewed on a ‘month
on month’
basis.
[45]
In a judgment that has stood the test of time for more than ninety
years, this court made it clear in
Tiopazi
v Bulawayo Municipality
[23]
that in respect of the lease of a house from month to month,
reasonable notice to vacate would be one month, unless there is an

agreement to the contrary.
[24]
There is no conceivable reason why the common law principle should be
different in respect of commercial premises.
[25]
There is no agreement to the contrary. Indeed, the agreement between
the parties appears to be in full harmony with this principle.

Exclusive was given more than one month to vacate. It therefore was
given reasonable notice.
[46]
Lewis JA has relied on the judgment of De Villiers JA in
Tiopazi
to put a different gloss on the common law. His was one of three
separate judgments, each concurring in the same conclusion. De
Villiers JA went on to say:
‘
From
the various cases decided in our courts it may now be taken as
settled that in the absence of agreement or custom to the contrary,
a
monthly contract of letting and hiring for an indefinite period
requires a month’s notice, to expire, in all cases except
in
the case of domestic or menial servants, at the end of the
month
.’
[26]
In
the passage upon which Lewis JA relies, De Villiers JA was outlining
the history of the law and not setting out the law as it
stood in
South Africa in 1922. The situation with regard to ‘domestic or
menial servants’ has, of course, changed much
to their
advantage under our constitutional dispensation. No reason presents
itself to me as to why the common law should change
insofar as
commercial tenants are concerned.
[47]
In any event, I do not understand Lewis JA’s reliance on the
passage which she has quoted from
Tiopazi
to have the consequence that a shopkeeper is entitled to ‘hold
over’ on a lease until it has found a suitable, alternative

store. Not even a residential tenant is entitled to a ‘room
with a view’ before she must vacate.
[48]
Even if it were to be accepted that the facts of a particular case
may disturb the normative principle established in
Tiopazi
,
this court has set its face against averments in answering affidavits
that are vague, bald and sketchy.
[27]
It has also said that where facts are peculiarly within the knowledge
of a respondent, the respondent can be expected to set these
out in
the answering affidavit.
[28]
Other than to raise the defence of a review of the tender (which, as
I have already indicated, is unmeritorious), Exclusive has
contended
the absence of reasonable notice to vacate in terms that are so
vague, bald and sketchy that they cannot, in any event,
pass
muster.
[49]
Prior to the
ad
hoc
agreement having been concluded in mid-August 2013, Exclusive would
have known that it would have had to vacate the premises on
or before
31 August 2013. No facts present themselves to suggest that
commercial realities (to adopt a phrase used by Lewis JA)
– or
any other relevant factor – had changed to the extent that the
six week period of notice actually given to Exclusive
to vacate was
not reasonable, in the circumstances.
[50]
After all, fittings in a shop ordinarily accede to the property
owned.
[29]
They are not owned by the lessee.
[30]
If Exclusive has a right to remove fittings, for example, it would be
for it to say so.
[31]
It did not. How difficult can it be to remove books, magazines,
periodicals and newspapers (the stock-in-trade of a bookseller)
from
a store within a month? Were there other factors, which might have
affected the reasonableness of the notice to vacate, these
would have
been peculiarly within the knowledge of Exclusive and ought to have
been set out by it. Its failure to do so must count
against it.
[51]
In summary, I disagree with Lewis JA on the question of ‘reasonable
notice’ for the following reasons:
(a)
The
agreement between the parties is not silent on the question of
notice. It provided, by necessary implication, in the circumstances

of this particular case, for an advance warning of one month before
exclusive knew that it had to vacate the premises.
(b)
Exclusive
could have been under no misapprehension that it was entitled to
‘hold over’ until it received ‘reasonable
notice’.
(c)
Even if
‘reasonable notice’ was required, one month’s
notice, as given, was ‘reasonable’ at common
law.
(d)
Even if the
common law is regarded as being merely normative, rather than
prescriptive and Exclusive consider one month’s
notice not to
be reasonable, it must set out, in cogent terms, why this is so. It
has failed to do this.
The
tacit term found by the court a quo to have been part of the
agreement between the parties
[52]
I am doubtful, in the light of the above whether the question of
there being a tacit term as contended for, needs to be considered.

Nevertheless, in view of the fact that this is a dissenting judgment,
I shall deal with it, for the sake of completeness. As mentioned
by
Lewis JA, the high court found that the agreement contained a tacit
term, formulated as follows:
‘
Neither
party may terminate this agreement until completion of a lawful
tender process
.’
[53]
The classic test as to whether a tacit term forms part of a contract
is that of what the ‘officious’ or ‘innocent’

‘ bystander’ may say in regard to the situation.
[32]
The officious or innocent bystander is neither naïve nor
foolish. She takes into account the facts.
[33]
The facts are that neither ACSA nor Exclusive is a commercial ‘babe
in the woods’. For either of them to have agreed
to a term that
was onerous for itself would not be like taking candy from a baby.
A review of a tender may, conceivably travel
from the High Court to
this one and then on to the Constitutional Court. The process will be
time-consuming, expensive and with
risk. For a right to evict a
tenant to be rendered, by agreement, contingent on the outcome of
such a review is hardly likely for
any reasonably astute commercial
operator.  In the absence of any clear indication to the
contrary, it is safe to assume that
ACSA is far from being un-astute.
Even if there had been an expectation or perhaps an intention that
the lease between the parties
would be renewed on an extended basis,
this would not necessarily create a contractual term to this
effect.
[34]
It is impossible to believe that such a term would have been agreed
to by ACSA as a matter ‘of course’.
[35]
[54]
In summary, as Brand JA observed in
City
of Cape Town  v Bourbon-Leftley
,
a tacit term is not easily inferred by the courts, the reason being
that the courts can neither make contracts for people nor
supplement
them because it may appear reasonable or convenient to do so.
[36]
[55]
Although it seems from the express terms of the agreement that both
parties were equally at risk of the lease being terminated
at a time
when it would have been inconvenient, at best for Exclusive, if there
was a tacit term, it would have been that the lease
would continue
until a replacement tenant had been found or a new long term lease
had been entered into by ACSA – not that
a valid tender process
had been completed
[56]
Accordingly, I conclude that the court below erred in finding the
existence of a tacit term as it did.
The
issue of the review of the tender
[57]
In my opinion, for the reasons outlined above, the review of the
tender is irrelevant to the issues at hand. In view of the
fact that
both the court below and Lewis JA have an opposite view, I shall add
a few brief observations in this regard.
[58]
I disagree that ‘a lessor who seeks eviction of a tenant from
premises after it has awarded a tender to another must
show that the
tender was valid in the circumstances’.
[37]
Even if one assumes that the award of the tender was relevant in the
present case (and, in my opinion, it is not), the maxim
omnia
praesumuntur rite esse acta donec probetur in contrarium
would shift the onus or create a burden of rebuttal.
[38]
[59]
In
Millennium
Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo
Province
,
Jafta JA, delivering the unanimous judgment of this court, said:
‘
A
decision to accept a tender is almost always acted upon immediately
by the conclusion of a contract with the tenderer, and that
is often
immediately followed by further contracts concluded by the tenderer
in executing the contract. To set aside the decision
to accept the
tender, with the effect that the contract is rendered void from the
outset,
can have
catastrophic consequences for an innocent tenderer, and adverse
consequences for the public at large in whose interests
the administrative body or official purported to act. Those interests
must be carefully weighed against those of the disappointed
tenderer
if an order is to be made that is just and equitable
.’
[39]
(Emphasis added.)
[60]
It is self-evident that the reasons that we have a system of review
of tenders by ‘organs of state’ are primarily
to act as a
safeguard against corruption and, in general, to prevent the wasteful
use of public resources. The system of review
of tenders was not
established for disappointed tenderers to participate in commercial
‘blood sports’ or to act as
‘spoilsports’.
[61]
It appears that the review is based on ACSA’s refusal to
consider Exclusive’s tender because it failed to provide
a
tax-clearance certificate,  Exclusive’s failure ‘to
comply with the rental-price specifications’ and ACSA’s

allowing the successful bidder to become ‘privy to sensitive
information directly germane to the bid in respect of shop space’

(what this ‘sensitive information’ might be was not
disclosed), the fact that ‘no reasonable person’ could

have decided to award the tender as it did and an absence of
fairness, equitableness, competitiveness and transparency.
[62]
Exclusive goes on to say that these grounds of review are ‘neither
complete nor exhaustive’. ACSA’s answering
affidavit, if
any, in the review application is not before us. There is no need for
ACSA to have ensured that this was done.
The court below
considering the review application will, no doubt, carefully apply
its mind to Exclusive’s allegations in
its founding affidavit
together with those of ACSA, should it file an answering affidavit in
the review application.  For
the purposes of this matter,
however, these grounds are altogether too terse to be taken
seriously.
[63]
For these reasons, I think the appeal has to succeed. In my opinion,
the correct order for this court would have been to uphold
the appeal
with costs including the costs of two counsel and to have replaced
the order of the court below with one ejecting Exclusive
from the
premises at International Departures – Airside – OR Tambo
International Airport and ordering Exclusive to
pay the costs of the
application, including the costs of two counsel.
_______________________
N
P Willis
Judge
of Appeal
APPEARANCES
For
the Appellant:

A Bava (with him N Mbelle)
Instructed
by:

Mothle Jooma Sabdia Attorneys,
Johannesburg
Matsepe Attorneys,
Bloemfontein
For
the Respondent:

A Subel SC (with him J J Meiring)
Instructed
by:

Baker & McKenzie (incorporated as Du Plessis,
Van der Merwe Inc),
Johannesburg
Symington & De Kock
Attorneys, Bloemfontein
[1]
Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635D.
[2]
National Director of Public
Prosecutions v Zuma
[2009]
ZASCA 1
2009 (1) SACR 361
(SCA) para 26.
[3]
Wille’s Principles of
South African Law
9 ed
(2007) General editor: Francois du Bois p 908.
[4]
W E
Cooper The South
African Law of Landlord & Tenant
2
ed pp 65-66.
[5]
Tiopaizi v Bulawayo
Municipality
1923 AD 317
at 325-326.
[6]
Wasmuth v Jacobs
1987 (3) SA 629
(SWA) at 637B-C.
[7]
Novartis (SA) (Pty) Ltd v
Maphil Trading (Pty) Ltd
2016 (1) SA 518
(SCA)
[2015] ZASCA 111
is the most recent case that
expresses this by-now trite principle: see paras 27-31, and the
cases cited there.
[8]
Ibid paras 30 and 31;
Ekhurhuleni
Metropolitan Municipality v Germiston Municipal Retirement Fund
2010 (2) SA 498
(SCA)
[2009] ZASCA 154
para 13 and
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA);
[2012] ZASCA 13
para 18.
[9]
ACSA did not aver that it was the owner of the premises, but since
Exclusive did not rely on its failure, there is no need to
determine
whether this alone was sufficient to deprive ACSA of its right to
vindicate. A lessor who is not the owner (a sublessor,
for example)
but who alleges termination of a lease, must show its right to claim
eviction.
[10]
Myaka v Havemann
1948 (3) SA 457
(A) at 465.
[11]
Karim v Baccus
1946 NPD 721
at 726.
[12]
Boshoff v Union Government
1932 TPD 345.
[13]
Chetty v Naidoo
1974 (3) SA 13
(A) at 20C-H.
[14]
See for
example
Boompret
Investments (Pty) Ltd & another v Paardekraal Concession Store
(Pty) Ltd
1990 (1) SA 347
(A) at 351G-I.
[15]
Myaka v Havemann
1948 (3) SA 457
(A) at 465.
[16]
Karim v Baccus
1946 NPD 721
at 726.
[17]
Boshoff v Union Government
1932 TPD 345.
[18]
See
Joel Melamed and
Hurwitz v Cleveland Estates (Pty) Ltd; Joel Melamed and Hurwitz v
Vorner Investments (Pty) Ltd
[1984] ZASCA 4
;
1984 (3) SA 155
(A) at 169B.
[19]
See for
example
Bastian
Financial Services  (Pty) Ltd v General Hendrik Schoeman
Primary School
[2008] ZASCA 70
;
2008 (5) SA 1
(SCA) paras 15 to 19;
Masstores
(Pty) Ltd v Murray & Roberts Construction (Pty) Ltd &
another
[2008] ZASCA 94
;
2008 (6) SA 654
(SCA) para 23;
KPMG
Chartered Accountants (SA) v Securefin Ltd & another
[2009] ZASCA 7
;
2009 (4) SA 399
(SCA) para 39;
Ekurhuleni
Metropolitan Municiplality v Germiston Municipal Retirement Fund
[2009] ZASCA 154
;
2010 (2) SA 498
(SCA) para 13;
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) para 19 and
North
East Finance (Pty) Ltd v Standard Bank of South Africa Ltd
[2013] ZASCA 76
;
2013 (5) SA 1
(SCA) para 21.
[20]
OR
Tambo International Airport
currently
has over 19 million passengers a year. See for example
www.southafrica.info/travel/advice/airports.htm#.V-TG-97cs
(Accessed
23 September 2016).
[21]
North
East Finance (Pty) Ltd v Standard Bank of South Africa Ltd
[2013]
ZASCA 76
;
2013 (5) SA 1
(SCA) para 24.
[22]
See for
example
Natal
Joint Municipal Pension Fund v Endumeni Municipality
(supra) para 13 and
North–East
Finance (Pty) Ltd v Standard Bank of SA Ltd
(supra) para 25.
[23]
Tiopaizi v Bulawayo
Municipality
1923 AD 317.
[24]
At 320.
[25]
See eg
Union
Wine and Spirit Corporation Ltd v Ferreira
1948 (2) SA 647 (O).
[26]
At 326.
[27]
See for
example
Rhoode
v De Kock
[2012] ZASCA 179
;
2013 (3) SA 123
(SCA) para 16. For more as to the
normative principle, see for example,
A.M.
Paruk v Hayne & Co.
(1906)
27 NLR 380
;
Fulton
v Nunn
1904 TS 123
;
Pemberton
NO v Kessell
1905 TS 174
;
Sitterding
v Hermon Piquetberg Lime Co Ltd
1921 CPD 439
; Grotius
Inleiding
3.19.8;
Van der Keessel
Praelectiones
3.19.8
and Van Leeuwen
Commentaries
on the Roman-Dutch Law
.4.21.6.
[28]
See for
example
Wright
v Wright & another
[2014] ZASCA 126
;
2015 (1) SA 262
(SCA) para 16;
Wightman
t/a JW Construction v Headfour (Pty) Ltd & another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) para 13.
[29]
See for
example
Newcastle
Collieries Co Ltd v Borough of Newcastle
1916 AD 561
at 565;
Van
Wezel v Van Wezel’s Trustee
1924 AD 409
at 418.
[30]
Ibid.
[31]
See
for example
Konstanz
Properties (Pty) Ltd v Wm Spilhaus en Kie (WP) Bpk
[1996] ZASCA 28
;
1996 (3) SA 273
(A) at 281A-G.
[32]
See
for example
Sentinel
Mining Industry Retirement Fund & another v Waz Props (Pty) Ltd
& another
[2012] ZASCA 124
;
2013 (3) SA 132
(SCA) para 15;
City
of Cape Town (CMC Administration) v Bourbon-Leftley & another
NNO
[2005] ZASCA 75
;
2006 (3) SA 488
(SCA) para 19;
Botha
v Coopers & Lybrand
2002 (5) SA 347
(SCA) para 23.
[33]
See for
example
City
of Cape Town (CMC Administration) v Boubon-Leftley & another NNO
(supra) para 19.
[34]
See
Joel Melamed and
Hurwitz v Cleveland Estates (Pty) Ltd; Joel Melamed and Hurwitz v
Vorner Investments (Pty) Ltd
[1984] ZASCA 4
;
1984 (3) SA 155
(A) at 169C-F.
[35]
The ‘of
course’ test set out by Scrutton LJ in
Reigate
v Union Manufacturing Co (Ramsbottom)
[1918] 1 KB 592
at 605 has, as R H Christie observes in his
The
Law of Contract in South Africa
6 ed (2011) at 176, been a favourite of our courts. See, in this
regard,
Botha
v Coopers & Lybrand
2002 (supra) para 23 and the authorities therein cited.
[36]
City of
Cape Town (CMC Administration) v Boubon-Leftley & another NNO
(supra)
para 19.
[37]
Para 28 of
Lewis JA’s judgment.
[38]
See
Phillips
v SA Reserve Bank & others
[2012] ZASCA 38
; 2013 (6) 450 (SCA) para 48;
Cape
Coast Exploration Ltd v Scholtz & another
1933 AD 56
at 76 and
Byers
v Chinn & another
1928 AD 322
at 332.
[39]
Millennium Waste Management
(Pty) Ltd v Chairperson, Tender Board: Limpopo Province & others
[2007] ZASCA 165
;
2008 (2) SA 481
(SCA) para 23.