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[2016] ZAGPJHC 393
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Roazar CC v Falls Supermarket CC (12328/2016) [2016] ZAGPJHC 393; [2017] 2 All SA 665 (GJ) (23 December 2016)
Links to summary
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
12328/2016
(1)
REPORTABLE: YES /
NO
(2)
OF INTEREST TO OTHER JUDGES: YES/
NO
DATE
:
23/12/2016
In
the matter between:
ROAZAR
CC
Applicant
and
THE
FALLS SUPERMARKET
CC
Respondent
J U D G M E N T
KLAAREN,
AJ:
INTRODUCTION
[1]
This case comprises an application for eviction brought by Roazar CC
(Roazar) against The Falls Supermarket CC (Falls Supermarket).
The application was opposed on the basis that the Falls Supermarket
remains in lawful possession of the property. A distinctive
aspect of this case is the existence beyond the main lease agreement
of two additional agreements between the parties, in terms
of which
additional monies were agreed to be paid in cash by the Falls
Supermarket to the individual members of Roazar.
[2]
The defence to the eviction is predicated on interpreting the main
lease agreement as allowing for a right to renew to be exercised,
and
to be exercised other than in writing. Depending on these
initial interpretive issues, a further issue may arise:
whether
the common law ought to be developed in terms of s 39(2) of the
Constitution of the Republic of South Africa, 1996 (Constitution)
to
the effect that an agreement entailing an obligation to negotiate is
enforceable in judicial proceedings in the circumstances
of this
case.
[3]
In a separate and yet-to-be-heard trial action, Roazar seeks to be
paid arrears due in terms of the additional agreements, which
they
allege to be in the realm of R8m. As Roazar is seeking final
relief here on its application for eviction, the Plascon-Evans
rule
applies.
[1]
Roazar can only succeed if the facts averred by the Falls Supermarket
together with the facts averred by Roazar which are
admitted by the
Falls Supermarket entitle it to the relief it seeks.
FACTS
[4]
The Falls Supermarket carries on business as a retail supermarket
under the name The Spar in Northmead, Benoni. Roazar
is a close
corporation owning the building known as the Falls Shopping Centre.
The Falls Supermarket leases premises of 2800
square meters on the
ground floor.
[5]
The Falls Supermarket currently has two members: Alexis Tzanos
and Christostomos Tzanos. In 2011, it had a different
membership: Efstratios Tzanos and Alexis Tzanos.
Efstratios Tzanos, who passed away in June 2011, was the father of
Alexis and Christostomos. The membership of Roazar, Dimitri
Pseftelis and Basil Janos, has remained constant during the period
of
time covered by this litigation.
[6]
The Falls Supermarket has occupied its premises since 2000 with
various lease agreements. On 23 May 2011, Roazar and the
Falls
Supermarket entered into the latest agreement of lease, what I will
term the main lease agreement. This agreement is
provided in
Annexure DP2 of the papers and is discussed further below.
Roazar contends the main lease agreement expired on
29 February
2016.
[7]
It is common cause that Roazar and the Falls Supermarket actually
purported to enter into three agreements in May 2011.
In
addition to the main lease agreement, the parties also entered into
what Roazar terms two ancillary agreements of lease and
what the
Falls Supermarket terms sham agreements. I will refer to these
agreements as the additional agreements.
[8]
The additional agreements did not differ much from the main lease
agreement. In particular, they provide for the same
lease
period as the main lease agreement. Where they do differ and
where their apparent purpose lies is in respect of providing
for cash
and off-the-record payments (sometimes known as kickbacks) to the
individual members of Roazar. The main lease agreement
sets
out, in item 7 of the Schedule of the lease agreement, “Basic
rental for lease period:” and then a table of monthly
rental,
VAT, and Total columns escalating each year from 1 March 2011 to 28
February 2012 through to 1 March 2015 through to 28
February 2016
[sic]. The first additional agreement has, for item 7, the
phrase “Basic rental for individual member
of Roazar CC:
Basil Janos” and then a table of monthly rentals also
escalating from 1 March 2011 to 28 February 2012
through to 1 March
2015 through to 28 February 2016 [sic], without VAT and Total
columns. The second additional agreement
is the same except for
the wording “Basic rental for individual member of Roazar CC:
Dimitri Pseftelis”.
Item 7 which is common to the
additional agreements thus does not use the term “lease
period”. The Falls Supermarket
alleges that these payments had
to be made in cash.
[9]
The Falls Supermarket explains these additional agreements by
averring that, when the previous lease agreement came up for renewal
in 2011, the members of Roazar demanded that the Falls Supermarket
agree to pay each of them R65 000 per month in cash in order
to renew
the lease agreement. Faced with losing the premises, their
investment in the premises, and the goodwill of the business,
the
then members of the Falls Supermarket acceded and paid these amounts
monthly. On this version, the two additional agreements
were
never intended to operate as lease agreements, but were only to
provide “some or other ‘paper trail’”
for the
payments.
[10]
After the senior Mr Tzanos died, the sons took legal advice.
The advice was that the cash payments constituted an unlawful
scheme
to avoid taxation and such scheme was possibly in fraud of creditors
and that the Falls Supermarket was possibly at risk
of liability if
it knowingly abetted the scheme. They resolved, as the Falls
Supermarket, to no longer make such illegal
payments, which stopped
in April 2012. The Falls Supermarket was invoiced and did pay
regularly the rental due under the
main lease agreement.
[11]
The terms of the main lease agreement were valid through end February
2016. As early as 2014, the Falls Supermarket avers
it notified
Roazar that it wished to exercise the right of renewal that it claims
it has in the main lease agreement. On
the version of Alexis
Tzanos, the only real obstacle to a renewal in these negotiations
between the parties was a demand by Roazar
for the payment of
kick-backs in arrears since 2012. Tzanos states in his
affidavit: “On various occasions, since
at least 2014,
the respondent has advised the applicant that it wished to exercise
the right of renewal provided for in the true
lease agreement.
My brother and I travelled to Greece to discuss this with Mr Janos.
I had numerous discussions with
Mr Pseftelis (who visited the Spar at
least once a week). In January of this year I again had several
meetings with Mr Pseftelis
in which I advised him that the respondent
was exercising its right of renewal and impressed upon him the need
to agree to the
rental payable during the next five years (i.e. from
1 March 2016 to 28 February 2021). In all of these discussions
Mr Pseftelis
had no objection to the respondent remaining as tenant
and to a renewal at a market related rental which could, if needs be,
be
determined by an independent expert or by Spar head offices (which
deal with the determination of such rentals on a regular basis).
The only substantial point of difference was that Mr Pseftelis
insisted that, before any renewal could be agreed upon, the
respondent
would have to pay him and Mr Janos in cash for the
“arrear” kick-backs (i.e. from April 2012 onwards) in an
amount
which they calculated as some R8 million. The respondent
could not agree to this.”
[12]
Alexis Tzanos continued: “In order to formalize the
discussions between the parties and to bring matters to a head,
I, on
2 February 2016, delivered to the applicant a written offer in
respect of the rental payable during the next five years.
A
copy of the offer is annexed to the founding affidavit as annex
“DP6”. The amount of this offer was calculated
as
the prevailing rental (as at 28 February 2016) plus 8% (being the
escalation rate provided for in the true lease agreement).”
The proposal contained in this written offer of 2 February 2016 in
respect of rental payable was based on the table in the main
lease
agreement. Such amounts appear to be substantially
below-market.
Roazar
demanded that the Falls Supermarket vacate the property with a
month’s notice, by means of a letter delivered on 31
March
2016. The Falls Supermarket has refused to vacate and has
continued to occupy the premises to date, paying over the
amount
offered as rental though this amount has not been accepted by
Roazar. On 1 April 2016, the Falls Supermarket’s
attorneys wrote to Roazar’s attorney with an indication of
resistance to any eviction, and the present dispute began.
DID
THE FALLS SUPERMARKET HAVE AN OPTION TO RENEW WHICH IT COULD
EXERCISE?
[13]
The first issue to address is whether the main lease agreement
properly interpreted provides for renewal. In engaging
in the
necessary exercise of interpretation of the agreement, a court is to
recognize the meaning of the words and language of
the agreement, its
context, and to give commercial sense to the contract. In line
with this interpretive mode of commercial
sensibility, in
Ekurhuleni
Metropolitan Municipality v Germiston Municipality Retirement
Fund
,
[2]
Lewis JA stated: “The principle that a provision in a
contract must be interpreted not only in the context of the contract
as a whole, but also to give it a commercially sensible meaning, is
now clear. It is the principle upon which
Bekker
NO
was decided, and, more recently,
Masstores
(Pty) Ltd v Murray & Roberts (Pty) Ltd
was based on the same logic. The principle requires a court to
construe a contract in context – within the factual matrix
in
which the parties operated. In this regard see
KPMG
Chartered Accountants v Securefin
.
(Footnotes omitted).”
[14]
Although broadly agreeing on the applicable principles, Roazar and
the Falls Supermarket nonetheless offer two differing interpretations
of the agreement. In order to properly interpret the main lease
agreement, it is convenient first to set out some of its
terms
including some of the items (also referred to as sections) the
agreement contains in its Schedule.
[15]
Section 3 of the agreement is headed “Lease Period and Right of
Renewal”. After two clauses dealing
with the lease
period, Clause 3.3 provides: “The Tenant shall, if
applicable, as indicated in item 5 of the Schedule,
and provided the
Tenant is not in breach of any of the terms of this lease at the
time, be entitled to renew this lease for the
period set out in item
5 of the Schedule (“the renewal period”) on the same
terms and conditions as herein contained,
save that the rental for
the renewal period shall be set out in item 5 of the Schedule and to
be negotiated at the stipulated time.”
Item 5 of the
Schedule provides: “Fixed date: 1 March 2011.”
Item 6 of the Schedule provides:
“Renewal period: 5
(five) YEARS (To be agreed in writing and negotiated between Tenant
and Landlord 1 (one) month prior
to the expiration of the lease
period.” The date “1 March 2011” and the
phrase “5 (five) YEARS”
are in bold type.
Clause 3.5
provides: “
The renewal
period is to be negotiated and discussed at least 1 (one) calendar
month prior to the expiry of the lease period stated
in Section 6 of
the Schedule. The Landlord and Tenant shall endeavor to reach
agreement on the monthly rental which shall
apply during the renewal
period and the escalation in respect of such renta
l.”
The content of item 6 of the Schedule is noted above.
Clause 3.6
provides: “
In the event that
the renewal of the lease is not negotiated prior to the expiry of the
lease, the Lessee will be liable for the
rental on the same terms and
conditions of this lease
.”
Clause 3.7
provides: “
In event of the
situation envisaged in 3.5 above, the lease will then continue on a
month to month basis, subject to 1 (one) calendar
months written
notice by either party for the cancellation thereof
.”
[16]
The interpretations contended for by the parties both effectively
began with clause 3.3. The Falls Supermarket emphasized
the
option to renew that clause 3.3 grants to the Lessee. The
commercial balance and business sense of the main lease agreement
is
in the balancing between the lessee’s option to renew and the
lessor’s power to negotiate around the period of renewal
and
the rental amount and escalation. Such a view of the commercial
sense of the agreement also recognizes the investment
the lessee has
made into building up the goodwill of the business as well as
investing in the premises. Part of the value
of the contract in
2011 for the lessee was that the lessee was able to say that it would
be able to lease the premises for another
five years beyond the end
of the lease period.
[17]
Roazar emphasized the terminology in clause 3.3 circumscribing the
entitlement to renew on the part of the lessee – the
language
of “if applicable, as indicated in item 5 of the Schedule, and
provided the Tenant is not in breach of any of the
terms of this
lease at the time”. Roazar contended that the entitlement
to renew was circumscribed by the performance
of the obligations –
the payments -- in the additional agreements. On this view,
failure by the Falls Supermarket to
pay monies purportedly owed to
Roazar in terms of the additional agreements meant that Roazar was
within its rights provided for
within this set of agreements as a
whole, to insist on the arrears being paid before entering into
negotiations around the renewal
period, rental, and the escalation.
This interpretation reads the additional agreements as linked to the
main lease agreement,
despite their formal design as separate
agreements.
[18]
Roazar’s interpretation cannot be sustained. The Falls
Supermarket asserts that the principal agreement was intended
as a
true lease agreement whereas the additional agreements were intended
to avoid the law. That version of the true intention
of the
parties is not denied by Roazar.
[3]
Note also that the item 7 common to the additional agreements does
not speak of a lease period. As noted above, the
question of
whether the monies are recoverable by Roazar from the Falls
Supermarket is not before this court and is the subject
of a separate
matter on which this court expresses no opinion. In this
matter, the issue is the true nature of the main lease
agreement, and
insofar as relevant to the renewal of the lease, the additional
agreements. As alleged and argued by the Falls
Supermarket, the
additional agreements constituted a fraud on the fiscus by hiding
monies from the tax commissioner. With
a commercial
sensibility, one can see that these additional agreements potentially
also laid a basis for fraud against third parties
in commerce such as
creditors and sureties.
[4]
The true nature of these additional agreements was thus illegal.
[19]
The case relied upon by Roazar is not to the contrary. In
Automotive
Toolings v Wilkens
,
the Supreme Court of Appeal stated: “The mere fact that a
contract is unsuccessfully designed to escape the provisions
of the
law does not in itself render it unenforceable. It is
unenforceable only if the true nature of the relationship is
one that
the law forbids.”
[5]
On the version alleged by the Falls Supermarket and not denied, the
true nature of the relationships put into place by the
additional
agreements was as sham relationships. This differs
significantly from the unsuccessful legal design at issue in
Wilkens
.
The true purpose of these additional agreements was
illegal avoidance of disclosure of the regular payments to the
state,
and to third parties. Therefore, the view of this court is that
non-performance under the additional agreements was
no bar to the
exercise by the Falls Supermarket of its entitlement to renew the
main lease agreement.
MUST
THE OPTION TO RENEW BE EXERCISED IN WRITING?
[20]
The sharpest point of the argument at the hearing centred on the
issue of the form of the exercise of the option to renew.
Roazar contended that the exercise of the option to renew needed to
be in writing and done one month before the expiry of the lease.
It sourced these two requirements in item 6 of the main lease
agreement. As set out above, Item 6 of the Schedule to the
lease agreement provides: “Renewal period: 5 (FIVE)
YEARS (To be agreed in writing and negotiated between
Tenant
and Landlord 1 (one) month prior to the expiration of the lease
period).” Roazar would read this item with clauses
3.5
and 3.7 to yield the result that the agreement terminates if the
option to renew was not exercised at least one month before
expiry of
the lease period. Further, without written notice by the Tenant
of the exercise of this right of renewal at least
one month before
expiry of the lease period, the lease agreement would come to an end
at the end of February 2016.
[21]
For its part, the Falls Supermarket also argued that the main lease
agreement should be interpreted so that the option of renewal
needed
to be exercised more than one month before the expiry. However,
in the Falls Supermarket’s interpretation such
exercise was not
required to be done in writing. The Falls Supermarket argued
that the agreement does not prescribe when
and how the respondent
must exercise its right to renewal. It was instead implied that
the option to renew would have to
be exercised no less than one month
prior to the expiry of the existing lease agreement. This was
by implication of clause
3.5 (where the renewal period is to be
“negotiated and discussed” one month prior to the expiry
of the agreement) and
of item 6 (where the renewal period was to be
agreed in writing and negotiated one month prior to the expiration of
the lease).
[22]
On the interpretation of the Falls Supermarket, once the option to
renew was exercised, the parties would then need to negotiate
the
renewal period and the rental and escalation during the renewal
period. During this negotiation period, the lease would
continue on a month to month basis, in terms of clause 3.7, subject
to that clause’s cancellation power.
[23]
This dispute regarding the written nature of the exercise of the
option to renew gives rise to a dispute on the papers regarding
the
timely exercise of the right to renew. Roazar claims that any
such exercise was not within time, since it was only on
2 February
2016, less than a month from the date of the expiry of the lease
agreement, that the Falls Supermarket directed a letter
to Roazar
with a proposal for the rental amount and escalation during the
renewal period. The Falls Supermarket argues that
such a view
incorrectly conflates the exercise of the option of renewal and the
negotiation process which must follow the exercise
of that right.
The Falls Supermarket claims it exercised the option to renew more
than a month before the end of the main
lease agreement.
[24]
The only mention of writing is in the Schedule (item 6), not in the
clauses of the section entitled “Lease Period and
Right of
Renewal”. The lack of explicit mention of writing in
clause 3.3 or elsewhere accords with the notion that
the agreement
requires that the result of the negotiation process over the renewal
period be put into writing. The phrase
“To be agreed in
writing and negotiated between Tenant and Landlord 1 (one) month
prior to the expiration of the lease period”
is directed to the
renewal period.
[25]
Best interpreted, the main lease agreement does not require the
exercise of the right to renew to be in writing. In this
agreement, the writing comes after the negotiation and does not kick
off such a process. The explicit mention of writing
is thus
relegated to an item of the schedule rather than where one would
otherwise expect it, had it been the intention of the
parties to
require the exercise of the right to renew to be in writing.
This accords with the overall character of the agreement
which is
suffused with notions of negotiation, discussion, and agreement.
CAN
THE OBLIGATION TO NEGOTIATE IN GOOD FAITH BE ENFORCED?
[26]
On the interpretation of the contract I have favoured in resolving
the issues above, a further issue -- whether an agreement
entailing
an obligation to negotiate in good faith is enforceable – is
now raised pertinently. The agreement between
the parties to
negotiate regarding the renewal period, the rental and the escalation
in respect of such rental, is in part implied
and in part provided
for in clause 3.5 where the agreement states: “The
renewal period is to be negotiated and discussed
at least 1 (one)
calendar month prior to the expiry of the lease period stated in
Section 6 of the Schedule. The Landlord
and Tenant shall
endeavor to reach agreement on the monthly rental which shall apply
during the renewal period and the escalation
in respect of such
rental.”
[27]
On the Falls Supermarket’s version, Roazar has refused to enter
into any negotiations with the Falls Supermarket or at
least into any
negotiations that do not commence with the paying of arrears of
kick-backs since 2012. Assuming the enforceability
of an
obligation to negotiate, this cannot be considered good faith
negotiation. If the obligation to negotiate is enforceable,
the
Falls Supermarket is a lawful occupier and the eviction application
is premature.
[28]
The place to begin with this issue is with a Constitutional Court
case very similar to the one at hand,
Everfresh
Market Virginia v Shoprite Checkers
.
[6]
Like this matter,
Everfresh
concerned a renewal of a lease of a supermarket. The Court
upheld the ejectment only on the basis that the constitutional
issue
of the potential development of the common law in terms of section
39(2) was not adequately canvassed in the pleadings and
in the courts
below.
[29]
Despite the result in the case, the Court fairly clearly indicated
its thinking on the issue. In
Everfresh
,
Moseneke DCJ said: “Were a court to entertain Everfresh’s
argument, the underlying notion of good faith in contract
law, the
maxim of contractual doctrine that agreements seriously entered into
should be enforced, and the value of ubuntu, which
inspires much of
our constitutional compact, may tilt the argument in its favour.
Contracting parties certainly need to relate
to each other in good
faith. Where there is a contractual obligation to negotiate, it
would be hardly imaginable that our
constitutional values would not
require that the negotiation must be done reasonably, with a view to
reaching an agreement and
in good faith.” Indeed,
Moseneke DCJ called the potential development a “highly
desirable and necessary infusion”.
The dissent was even
more positively inclined towards such a development. Yacoob J
writing for the four-judge dissent would
have sent the issue back to
the High Court for re-interpretation and potential development.
[7]
[30]
A further indication of the direction of the Court came in the later
case of
Makate
v Vodacom Ltd
.
First, the Court helpfully summarized the doctrinal developments in
this area of our law
[8]
and stated the common law as follows: “currently the
position in our common law is that an agreement to negotiate in
good
faith is enforceable if it provides for a deadlock-breaking mechanism
in the event of the negotiating parties not reaching
consensus.”
[9]
Then, the Constitutional Court crisply stated: “Whether
an agreement to negotiate in good faith is enforceable
where there is
no deadlock-breaking mechanism remains a grey area of our law.
This is because
Firechem
Free State
suggests that it is not enforceable while
Everfresh
suggests otherwise.”
[10]
Legal academic opinion also supports the development of the common
law to recognize a duty to negotiate in good faith in
the context of
renewal options.
[11]
[31]
The issue foreshadowed but not adequately canvassed in the pleadings
in
Everfresh
is squarely presented in this case. The pleadings here on
behalf of the respondent engage the obligation of this court to,
in
an appropriate case, consider the potential to develop the common law
through s 39(2) of the Constitution.
[12]
[32]
In arguing for the development of the common law to recognize an
agreement to negotiate in the circumstances of this case,
counsel for
the Falls Supermarket canvassed several relevant points. The
principle of
pacta
sunt servanda
is reflective of the constitutional values of freedom and
dignity.
[13]
The principle of good faith is significant in understanding contracts
and contracts are not merely “a matter of each
side pursuing
his or her own self-interest without regard to the other party’s
interests.”
[14]
An objective standard “such as the
arbitrium
boni viti
could be applied to the conduct of a contracting party who undertakes
an obligation to negotiate a further agreement. Such
a party
would be obliged to act honestly and reasonably in the conduct of the
negotiations and a court would be able to determine
whether it
complied with such standards.”
[15]
In upholding and recognizing as enforceable obligations to negotiate
in good faith with deadlock-breaking mechanisms, the
Constitutional
Court and the Supreme Court of Appeal have considered the agreed
negotiation process inherent in an agreement with
a deadlock-breaking
mechanism to be enforceable in and of itself.
[16]
[33]
The question of the recognition of the
Everfresh
dictum is to some extent already decided in this court. In
South
African Broadcasting Corporation SOC Ltd v Via Vollenhoven and
Appollis Independent CC and Others
,
the court ordered parties to negotiate in good faith in a judgment of
2 September 2016.
[17]
While this point is not extensively canvassed in that judgment, that
decision is binding upon me unless wrong. For
the reasons
above, I do not think it wrong.
[34]
Further, this case represents possibly an exercise of judicial power
even less extensive than the judicial power in
SABC
SOC
.
The concern not to trespass beyond an “adjudicative” role
has been a concern for courts considering this issue.
In
Southernport
Developments
[18]
,
a case decided prior to
Everfresh
,
the court stated: “It needs to be emphasized that,
on the facts here present, a court would not be making the
contract
for the parties, thereby going beyond its adjudicative role.”
[19]
Here, the order consequential upon accepting that the agreement is
enforceable is a dismissal of the application for eviction.
In
SABC SOC, the court needed to affirmatively include the obligation to
negotiate as part of its order.
[20]
[35]
In light of the above, it is appropriate to give the following
order. The application is dismissed. There is no
reason
here to depart from the usual rule regarding costs and costs should
follow the result.
_________________________________________________
J
KLAAREN
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR THE APPLICANT
: RG Cohen
Mr PAUW
INSTRUCTED
BY
: GLYNNIS COHEN ATTORNEYS
COUNSEL FOR THE RESPONDENT
: D WATSON
INSTRUCTED
BY
: Christelis Artemides Attorneys
DATE OF HEARING
: 17 October 2016
DATE
OF JUDGMENT
: 23 December 2016
[1]
Plascon-Evans
Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd. (53/84)
[1984]
ZASCA 51
;
[1984] 2 All SA 366
(A);
1984 (3) SA 623
;
1984 (3) SA 620
(21 May 1984).
[2]
Ekurhuleni
Metropolitan Municipality v Germiston Municipality Retirement Fund
(457/08)
[2009] ZASCA 154
;
2010 (2) SA 498
(SCA)
;
[2010] 2 All SA 195
(SCA) (27 November 2009), 13.
[3]
Commissioner
for South African Revenue Service v NWK Ltd (27/10)
[2010] ZASCA
168
;
2011 (2) SA 67
(SCA)
;
[2011] 2 All SA 347
(SCA) (1 December 2010).
[4]
Ibid.,
para. 55.
[5]
Automotive
Tooling Systems (Pty) Ltd v Wilkens and Others (581/05)
[2006] ZASCA
167
;
[2007] 4 All SA 1073
(SCA);
2007 (2) SA 271
(SCA) (28 September
2006), 6.
[6]
Everfresh
Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd
(2012 (1) SA
256
(CC);
2012 (3) BCLR 219
(CC))
[2011] ZACC 38
;
[2011] ZACC 30
(17
November 2011).
[7]
Ibid.,
para. 42.
[8]
Makate v
Vodacom (Pty) Ltd (CCT52/15)
[2016] ZACC 13
;
2016 (6) BCLR 709
(CC);
2016 (4) SA 121
(CC) (26 April 2016), 95
–
99.
[9]
Ibid.,
para. 97.
[10]
Ibid.,
para. 100.
[11]
Graham
Glover,
Kerr
’
s
Law of Sale and Lease
,
4th ed. (Pietermaritzburg, South Africa: LexisNexis Butterworths,
2014), 546
–
47;
Andrew Hutchison,
“
Agreements
to Agree: Can There Ever Be an Enforceable Duty to Negotiate
in Good Faith?,
”
South
African Law Journal
128 (2011): 273.
[12]
Everfresh
Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd
(2012 (1) SA
256
(CC);
2012 (3) BCLR 219
(CC))
[2011] ZACC 38
;
[2011] ZACC 30
(17
November 2011), 30, 33, 34.
[13]
Barkhuizen
v Napier (CCT72/05)
[2007] ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7)
BCLR 691
(CC) (4 April 2007).
[14]
Botha and
Another v Rich N.O. and Others (CCT 89/13)
[2014] ZACC 11
;
2014 (4)
SA 124
(CC);
2014 (7) BCLR 741
(CC) (17 April 2014).
[15]
Indwe
Aviation (Pty) Ltd v The Petroleum Oil and Gas Corporation of South
Africa (Pty) Ltd and Another (4610/2011, 14366/2010)
[2011] ZAWCHC
249
;
2012 (6) SA 110
(WCC) (1 June 2011), 28.
[16]
Southernport
Developments (Pty) Ltd v Transnet Ltd (440/03)
[2004] ZASCA 94
;
[2005] 2 All SA 16
(SCA) (29 September 2004); Makate v Vodacom (Pty)
Ltd (CCT52/15)
[2016] ZACC 13
;
2016 (6) BCLR 709
(CC);
2016 (4) SA
121
(CC) (26 April 2016), 107.
[17]
South
African Broadcasting Corporation SOC Ltd v Via Vollenhoven and
Appollis Independent CC and Others (13/23293) [2016] ZAGPJHC
228 (2
September 2016).
[18]
Southernport
Developments (Pty) Ltd v Transnet Ltd (440/03)
[2004] ZASCA 94
;
[2005] 2 All SA 16
(SCA) (29 September 2004).
[19]
Ibid.,
para. 17.
[20]
South
African Broadcasting Corporation SOC Ltd v Via Vollenhoven and
Appollis Independent CC and Others (13/23293) [2016] ZAGPJHC
228 (2
September 2016), 60.