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[2015] ZASCA 164
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Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd (20711/14) [2015] ZASCA 164; 2016 (2) SA 586 (SCA); [2016] 2 All SA 351 (SCA) (25 November 2015)
Links to summary
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case No:
20711/14
Reportable
In
the matter between
MASSTORES
(PTY) LIMITED
APPELLANT
and
PICK
N PAY RETAILERS (PTY)
LIMITED
FIRST RESPONDENT
HYPROP
INVESTMENTS LIMITED
SECOND RESPONDENT
Neutral
citation:
Masstores
(Pty) Ltd v Pick n Pay Retailers (Pty) Ltd
(20711/14)
[2015] ZASCA 164
(25 November 2015)
Coram
:
Maya DP, Leach, Theron, Majiedt
and Zondi JJA
Heard:
13 November 2015
Delivered:
25 November 2015
Summary:
Delict – trading in competition
with a contracting party in contravention of a restraint clause in a
lease agreement constitutes
unlawful interference in the contractual
relationship between the contracting party and the landlord –
an exclusivity clause
in a lease agreement is an integral part of
that lease and not a collateral right.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria, (J W Louw J sitting as court of
first instance):
The
appeal is dismissed with costs, including the costs of two counsel.
JUDGMENT
Majiedt
JA (Maya DP, Leach, Theron and Zondi JJA concurring):
Introduction
[1]
This case concerns the alleged unlawful interference with a
contractual relationship. In the Gauteng Division of the High Court,
Pretoria, J W Louw J granted a final interdict restraining the
appellant, Masstores (Pty) Ltd (Masstores), from unlawfully
interfering
in the contractual relationship between the first
respondent, Pick n Pay Retailers (Pty) Ltd (Pick n Pay), and the
second respondent,
Hyprop Investments Limited (Hyprop). The
interference was alleged to relate to Masstores’ operating a
general food supermarket
at the Capegate shopping centre in
Brackenfell, Western Cape (Capegate). This appeal is with the leave
of the court a quo. Although
Pick n Pay had joined Hyprop as a second
respondent, and notwithstanding the fact that the latter had filed
answering papers, no
relief was sought in the court a quo against
Hyprop.
Factual
Matrix
[2]
The salient facts are largely common cause or not seriously disputed
and can be summarized as follows. Hyprop is the successor-in-title
to
the Capegate Regional Centre Joint Venture (the JV), the owner of
Capegate. On 20 February 2006 Masstores entered into a lease
agreement with the JV in terms whereof it leased part of the shopping
centre from the JV. The lease provision at the centre of
the dispute
is clause 12, which reads:
'
12.
THE TENANT’S USE OF THE PREMISES
12.1
The tenant may use the premises for the purposes of a retail business
being a business dealing in general merchandise and non-perishable
food and all other ancillary and related businesses or for any other
retail business. Subject to the qualification that the tenant
will
not trade as a general food
supermarket
(except in the circumstances described in clause 12.2), the tenant
may, in its sole discretion, determine what products
it will sell
within its store.
12.2
If, at any time during this lease, for a period of
90 consecutive days, there is no general food supermarket
trading in
the shopping centre, the tenant may expand the tenant’s
business to include trading as a general food supermarket.’
[3]
On 11 May 2006 Pick n Pay concluded a lease agreement with the JV in
respect of premises situated at Capegate. The salient part
of the
lease agreement is clause 10.1 which contains the following
provisions:
'
10.
EXCLUSIVITIES AND LETTING RESTRICTIONS
10.1
Save for the SUPERMARKET and Checkers, the LESSOR shall not permit
the following businesses to be conducted in the SHOPPING
CENTRE or on
the PROPERTY:
10.1.1
a hypermarket or supermarket; or
10.1.2
a store with either a single or several food departments, the
aggregate square meterage of which exceeds 100 (one hundred)
square
metres; or
10.1.3
a café or delicatessen which sells fresh fish or meat; or
10.1.4
a grocery, fresh fish shop, butchery, bakery or fruit and vegetable
shop.
’
[4]
Masstores which, amongst others, trades as Game, traditionally
conducted its business
as a general merchandise retailer. I will
refer to it herein interchangeably as ‘Masstores or ‘Game’.
Its products
excluded food, but just before 2010 it began selling on
a limited scale non-perishable food and grocery items. During late
2010
or 2011 Masstores introduced the Foodco concept in some of its
Game stores. This entailed the introduction of fresh fruit and
vegetables
and fresh pre-packed meat products, which complemented its
existing non-perishable food and grocery lines. In the Western Cape,
Foodco was first introduced in two large shopping malls, N1 City and
Canal Walk.
[5]
On 19 September 2013 Foodco was introduced in Masstores’ Game
store at Capegate. Hyprop informed Checkers, which also
traded at
Capegate, of Masstores’ intentions about the Foodco
introduction. But Pick n Pay was not afforded the same courtesy.
In
response Checkers, whose lease contained exclusivity provisions
similar to that of Pick n Pay, obtained an interim interdict
restraining Masstores from operating a Foodco at Capegate, pending
the institution of an action for final relief. Pick n Pay became
aware of the Checkers interdict but, in view of the interim
restraining order obtained by Checkers, elected not to take any
action
to protect its right to exclusivity.
[6]
On 15 April 2014, for reasons not germane here, the interim interdict
granted to Checkers was discharged by agreement. From
that time Game
operated a Foodco at Capegate. This prompted Pick n Pay to launch the
application in the court a quo. It sought
a final interdict against
Masstores, restraining it from interfering in the contractual
relationship between Pick n Pay and Hyprop
by carrying on a business
exclusively granted to Pick n Pay in terms of the latter’s
lease agreement. As alternative relief
Pick n Pay sought an interdict
in similar terms pending the outcome of an action to be instituted
against Masstores. It is not
necessary to deal with the relief sought
in the alternative against Hyprop because, as stated, that relief was
abandoned at the
hearing in the court a quo. Some argument was
addressed concerning Pick n Pay’s change in tack in its
application papers
– that aspect will be considered shortly.
[7]
The court a quo upheld Pick n Pay’s contentions that Game was
trading as a general food supermarket at Capegate in breach
of its
obligations in clause 12.1 of its lease agreement. By
intentionally continuing to do so after having been made aware
of
Pick n Pay’s exclusive rights in terms of its lease agreement,
held the learned judge, Game was unlawfully preventing
Pick n Pay
from obtaining the performance it was entitled to in terms of its
contractual exclusivity right. A final interdict was
consequently
issued against Game.
The
central issue
[8]
Our law has recognised for more than a century that a delictual
action lies in instances where an outside party knowingly deprives
a
person of his rights under a contract with another.
[1]
The outside party’s conduct results in the contracting party
not obtaining the performance to which it is entitled on the
contract, or where a contracting party’s obligations under the
contract are increased. In the firstmentioned instance one
is
concerned with the infringement of a personal right.
[2]
These types of cases typically occur in instances where a former
lessee holds-over the leased premises well knowing that the incumbent
lessee is, in the process, being deprived of its contractual rights
under the lease,
[3]
and in instances where employees are induced by a competitor to
breach their employment restraint conditions contractually agreed
with a former employer.
[4]
The somewhat novel question that arises here is whether the breach by
an outside party of its lease obligations towards a contracting
party
can give rise to a delictual action by the other party to the
contract in circumstances where the breach impacts directly
on the
latter and infringes upon its contractual rights. Before I consider
the first question, namely whether the court a quo was
correct in its
finding that Game was in breach of its lease agreement with Hyprop by
trading as a general food supermarket, I deal
first with Masstores’
contentions regarding the manner in which Pick n Pay has pleaded its
case.
The
pleadings
[9]
Masstores’ counsel argued strenuously that Pick n Pay had
shifted its ground on the papers as far as the pleaded cause
of
action is concerned. While this is true, there is a sound explanation
for the change. Pick n Pay had approached the court a
quo on an
urgent basis. It founded its case on the fact that Masstores was well
aware that its conduct (operating a general food
supermarket at
Capegate) contravened clause 10 of the lease agreement between Pick n
Pay and Hyprop. Pick n Pay pleaded further
that ‘[n]otwithstanding
this knowledge, Masstores has recklessly and intentionally continued
[with its conduct]’. I
accept the explanation given by Pick n
Pay’s counsel that, when Masstores’ answering papers was
received and Masstores’
agreement’s provisions became
known, Pick n Pay had amended its notice of motion without objection
and averred in its replying
affidavit that Masstores was in breach of
its own restraint which constituted unlawful interference in the
contractual relationship
between Pick n Pay and Hyprop. Quite apart
from the fact that no objection had been raised by Masstores at that
time (in fact it
availed itself of the indulgence to file further
affidavits) and no prejudice had been caused to it (nor has any been
suggested),
the point was not raised at all in Masstores’ heads
of argument. This argument is plainly an ill-considered afterthought.
Is
Masstores operating a general food supermarket?
[10]
On the evidence and on the plain ordinary grammatical meaning of the
word ‘supermarket’ the answer to this question
should be
bereft of complexity. But on this aspect Masstores adduced expert
evidence, maligned the photographic evidence presented
by Pick n Pay
as ‘misleading’ and produced photographs of its own which
purported to present a more accurate and balanced
picture. And its
counsel went to great lengths to dispel any initial view one may have
had regarding the uncomplicated nature of
the word. In the process
more obfuscation than enlightenment ensued.
[11]
As always, regard must first be had to the word itself. Masstores’
counsel contended that the word ‘supermarket’
is complex
and bears an indeterminate meaning. Dictionary meanings must, so
contended counsel, be treated circumspectly since dictionaries
are
mostly non-South African and we are required to interpret the word in
a South African context. The word has a specialized meaning,
ie it
must be interpreted in the specialised field of commerce and
industry, argued counsel. I see the matter rather differently.
I am
in agreement with the argument advanced on behalf of Pick n Pay that
the exercise is far less complicated than suggested by
Masstores’
counsel. It is an ordinary, well-known and oft used word with an
ordinary meaning. I start first with the dictionary
meaning. I can
find no fault with the dictionary meaning relied upon by the court a
quo. It cited the meaning set forth in the
Oxford English Dictionary:
‘a large self-service store, freq. one of a chain, selling a
wide range of foods, household goods,
etc.’ The Concise Oxford
English Dictionary
[5]
defines the word ‘supermarket’ as ‘a large
self-service shop selling foods and household goods’. In
Fundstrust (Pty) Ltd
(in liquidation) v
Van Deventer,
[6]
Hefer JA adopted the following approach to dictionary meanings:
‘
As
a rule every word or expression must be given its ordinary meaning
and in this regard lexical research is useful and at times
indispensable. Occasionally, however, it is not.
’
[7]
This
is one of the cases where the dictionary meaning is of considerable
importance.
[12]
It seems to me plain that, as the court a quo found, not any store
would qualify as a supermarket – it must be large
and it must
carry a wide range of products. Again, one must immediately
acknowledge that the concepts ‘large’ and ‘wide
range’ are relative. But they are closely connected to each
other – a wide range of products can conceivably only be
traded
from a large area. In my view, once a store of sufficient carries a
wide variety food and household products which can meet
the usual
requirements of an average family, it qualifies as a supermarket. I
consider next the expert evidence adduced on behalf
of Masstores.
[13]
The court a quo had no regard to the evidence of the experts,
correctly so. But I would go even further – their evidence
was
inadmissible and irrelevant. In answer to the urgent application,
Masstores filed, amongst others, an affidavit by Mr D N Prinsloo,
a
research manager employed by Urban Solutions CC, a corporation
involved in specialist market feasibility studies and property
market
research. This witness failed altogether to endeavour to qualify
himself as an expert. He was clearly not qualified to express
any
expert opinion on the issues in this matter. His evidence was
consequently inadmissible. This fact appears to have dawned on
Masstores who deemed it necessary to file a supplementary affidavit
by Mr Prinsloo’s father, Dr D A Prinsloo, the managing
member
of the aforementioned close corporation. His evidence suffered from
the same shortcomings as that of the younger Prinsloo
– he too
failed to qualify himself as an expert. His evidence was therefore
also inadmissible.
[14]
But the Prinsloos’ evidence was also irrelevant. It is well
established that interpretation is a matter for the court,
not for
experts. This court has in a long line of cases laid down the
approach to be adopted in this regard, most notably in
Coopers
& Lybrand & others v Bryant
[8]
and in
KPMG
Chartered Accountants (SA) v Securefin Ltd & another.
[9]
More recently, these principles were again confirmed in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[10]
and in
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk.
[11]
In
KPMG
Harms
DP reiterated that an expert ought not to be asked, either in
evidence in chief or in cross-examination, what a document (or
in the
present instance, a word or a phrase) means to him or her.
[12]
The court a quo had no need for experts to explain to it the meaning
of an ordinary word. And so it rightly disregarded the evidence.
The
Prinsloos could moreover not assist the court in ascertaining what
would have been known to the parties and what was in their
minds at
the time when they contracted.
[13]
[15]
Lastly, the expert evidence lacked any reasoning. An expert’s
opinion must be underpinned by proper reasoning in order
for a court
to assess the cogency of that opinion.
[14]
Absent any reasoning, the opinion is inadmissible since it cannot be
said to be an expert opinion. For all these reasons, the Prinsloos’
evidence was correctly disregarded by the court a quo.
[16]
Pick n Pay attached to its founding papers a number of photographs of
the food section of the Game store at Capegate. These
photographs
depict a wide range of perishable and non-perishable food products.
The overwhelming initial impression is that this
is a supermarket as
ordinarily understood. Masstores’ response was to attach even
more photographs in its answering papers,
depicting the inside of the
store in its entirety. But this misses the point altogether. I cannot
agree with the submission on
behalf of Masstores that the Pick n Pay
photographs are ‘misleading’. One is mindful of the fact
that Game is primarily
a general merchandise retailer. But that does
not mean that its main business cannot exist cheek by jowl with a
general food supermarket.
In
Capnorizas
v Webber Road Mansions (Pty) Ltd
[15]
this court was confronted with a similar situation. A lease agreement
entitled the appellant to carry on a wide range of businesses,
including the sale of milk, but it precluded him from selling fruit
and vegetables as well as crockery and glassware in the event
of any
other lessee selling those products in the building. The landlord
(the respondent) undertook not to let any other shop in
the building
to a person carrying on substantially the same business as that
conducted by the appellant. Thereafter a dairy firm
commenced
business in the building under a lease agreement selling milk and
other dairy products. The appellant consequently sought
a temporary
interdict
pendente
lite
in the Local
Division to restrain the respondent from permitting the dairy firm to
remain in occupation of the shop. It obtained
the interdict, but that
decision was reversed on appeal by the majority in the Provincial
Division. On further appeal to it this
court found for the appellant
on the basis that the dairy firm was trading, contrary to the
contractual undertaking by the respondent
in its lease agreement with
the appellant, in products which were substantially the same as one
of the appellant’s ‘congeries
of separate businesses’.
The position is no different here – Game is trading in the
supermarket section of its store
in the same food products and
groceries as Pick n Pay.
[17]
The proverbial final straw is the view that Masstores itself took of
its new, expanded business. First, on its Foodco website,
[16]
Masstores describes itself thus:
‘
For
40 years, South Africans have trusted Game for our great value and
savings, and now we’re introducing Foodco:
a
supermarket
inside Game that makes shopping, and saving, faster and easier. We
have just what you need, with a smaller, but more focussed choice
of
products, conveniently pre-packed to make shopping easy. To add to
the great food brands that you love and trust, we’re
introducing
an
extensive range of FoodCo products to
offer big discounts on qualify food, and great value to our
customers. We’re all about giving you everyday great value in
a
unique no-frills, easy to shop store
’
(own
emphasis).
We
were told by Masstores’ counsel that this was merely a
‘marketing blurb’. The explanation is singularly
unpersuasive.
The website entry was produced in a non-litigious
environment and it lacks exaggerated praise. Second, in proceedings
before the
Competition Tribunal during the Massmart / Walmart merger
application (from which Masstores came into being), the then Chief
Executive
Officer of Massmart, Mr Grant Pattison, declared in his
witness statement that ‘Massmart has also begun to convert its
current
General Merchandise discounter format, Game, into a Super
Store format “Game Foodco”,
by
adding a full range of groceries
’
(own emphasis). I might add that this evidence, adduced in reply by
Mr Izak Joubert, Pick n Pay’s property director,
was left
unanswered in Masstores’ further affidavit (ie the fourth set
of affidavits). And lastly, there is the evidence
of Mr Leon Braam
Robbertze, the store manager at Game, Capegate. Mr Robbertze went to
great lengths to draw a distinction between
Game and Pick n Pay as
far as aspects such as floor size, range of products and stock
keeping units are concerned. But ultimately,
the only food
items not sold by his store (and sold by Pick n Pay) are fresh food
items such as butchery and bakery products prepared
on site (these
were pre-packaged), wine (although it sells sparkling wine) and
newspapers. On its own version therefore, Masstores
sells an
extensive range of perishable and non-perishable food as well as
groceries at Game, Capegate.
[18]
In summary on this first aspect: It is plain on the photographic
evidence that Game conducts a general food supermarket at
its
Capegate store. That evidence accords with the ordinary dictionary
meaning of a supermarket. And, importantly, Masstores itself
regards
the food section of that store as a supermarket. It is therefore
trading in competition with Pick n Pay in breach of its
(Masstores’)
lease obligations. But does that conduct constitute a delict as
against Pick n Pay?
Is
Masstores, through its conduct, unlawfully interfering in Pick n
Pay’s contract with Hyprop?
[19]
Three requirements must be met for a successful claim based on the
unlawful interference in a
contractual relationship. They are:
(a)
An unlawful act;
(b)
which constitutes an interference in the contractual relationship;
and
(c)
which is committed with some form of dolus
.
[17]
[20]
As far as the unlawful act is concerned, it is plain on my finding
above that Game is acting in breach of the restraint clause
in the
lease. The restraint clause was inserted at Masstores’
suggestion, for very good reason. It became common cause on
the
papers that, typically, the presence of an anchor tenant such as Pick
n Pay in this case, would be the primary or one of the
major
attractions for shoppers at a shopping centre. The guarantee of
footfall (and potential customers) is the prime motivation
for other
lessees (such as Masstores in the present instance) to take up the
remainder of a shopping centre’s premises on
extended leases.
The anchor tenant, on the other hand, generally requires exclusivity
in respect of its particular business at
that shopping centre, in
order to protect itself against the risk which it assumes in respect
of its substantial capital expenditure
in respect of the
establishment and continual refurbishment of its store. Almost
invariably an anchor tenant must commit to that
particular shopping
centre for extended lease periods. This explains the presence of
clauses 10 and 12 in the lease agreements
of Pick n Pay and Masstores
respectively. They are closely related to each other and each clause
benefits in its own way the particular
lessee – Masstores’
restraint in clause 12 is inextricably linked with Pick n Pay’s
exclusivity in clause 10.
This much was conceded, albeit in general
terms only, by Masstores’ property manager at that time, Ms
Diane Bolton, in her
answering affidavit. She stated as follows in
respect of the origin of and rationale for the restraint clause
(clause 12) in Masstores’
agreement:
‘
Lessees,
such as Masstores, preferred to lease premises where there was
already, or would be, an anchor tenant, such as a supermarket.
It was
not uncommon for anchor tenants, such as supermarkets, to require
some form of exclusivity from the lessor. In a general
sense I was
aware of this. Masstores did not intend to become a general food
supermarket. Because some form of exclusivity was
commonly required
by supermarkets, Masstores offered to accept, and incorporated into
its proposed lease terms, the term that it
would not trade as a
general food supermarket. That is the origin of this term in the
lease concluded by Masstores and referred
to below.
’
Ms Bolton claimed ignorance of
the fact that Pick n Pay and Checkers had been granted exclusivity in
respect of the conducting of
a supermarket at the time when she had
negotiated and concluded the relevant lease agreements during 2005/6
and 2008. This is rather
peculiar, since Ms Bolton was aware of the
general practice (as quoted above) and she knew at the time, on her
own version, that
Pick n Pay and Checkers had been accommodated at
Capegate. But this aspect is immaterial, because at the very latest
Masstores
was made aware of Pick n Pay’s right to exclusivity
on 9 May 2014 when a letter of demand was sent by Hyprop to
Masstores,
calling upon it to cease trading as a supermarket at Game,
Capegate. In trading in competition with Pick n Pay, contrary to its
contractual restraint, after it was made aware of Pick n Pay’s
right to exclusivity, Masstores acted unlawfully.
[21]
I discuss next the issue of wrongfulness in more detail, with
particular reference to the argument advanced on behalf of Masstores
that inducement is a requirement for the claim, which Pick n Pay had
failed to prove. Our law of delict has developed significantly
over
the last three decades or so as far as liability for pure economic
loss is concerned. It has its genesis in
Administrateur,
Natal v Trust Bank van Afrika Bpk.
[18]
In that matter Aquilian liability was extended to liability for pure
economic loss. But, at the same time, the requirement of wrongfulness
assumed a far more prominent role than had previously been the case.
This was necessary to counter the spectre of limitless liability,
an
ever present threat in cases of liability for pure economic loss. In
the context of delictual liability, wrongfulness is determined
by
legal and public policy considerations.
[19]
Wrongfulness is determined by ascertaining whether there has been a
breach of a legal duty. Conversely, it involves a determination
of
whether a subjective right has been infringed.
[20]
This entails a determination of the objective reasonableness of the
conduct of the person who acted in light of the prejudice he
caused
to another. Objective reasonableness is determined by the general
legal convictions of society, which is a value judgment.
[21]
[22]
Turning from the general to the specific – in the present
instance the claim is based on the intentional deprivation
of a
benefit a contract party would otherwise have obtained from
performance under a contract. Such a cause of action has again
been
confirmed recently in
Country
Cloud Trading CC v MEC, Department of Infrastructure Development.
[22]
Pick n Pay’s case is that Masstores has intentionally infringed
upon its subjective right to exclusivity to operate a supermarket
at
Capegate. The contention that Pick n Pay had to prove an inducement
by Hyprop to Masstores in this regard is devoid of merit.
In
Lanco
Engineering CC v Aris Box Manufacturers (Pty) Ltd
[23]
Galgut J held that inducement or enticement is not a requirement in a
claim based on the unlawful interference in a contractual
relationship. The learned judge stated as follows:
‘
It
is perfectly true that most of the cases, and in particular the
earlier ones, are cases where the contract concerned was breached
as
a result of an inducement by the defendant to do so . . . The cases
concerned must however be seen in proper context. Firstly,
they
related to contracts of service, where the most common form of
interference is doubtless enticing an employee away from his
employer
or inducing him to leave. Secondly, it was the influence of the
English law on the question which led to the enticement
or inducement
being regarded as yardsticks in cases of that kind. The development
of our law on the subject, as I see it however,
shows that, while an
enticement or inducement constitutes an interference, conduct other
than enticement or inducement may well
constitute an interference for
the purposes of the
lex
Aquilia.
’
[24]
This
was confirmed in
Country
Cloud Trading CC v MEC, Department of Infrastructure Development
[25]
where the Constitutional Court referred to it as a ‘usurpation
of [a] right’.
Masstores’
counsel relied heavily on the following passage in
Country
Cloud
: ‘The
cases where conduct may arguably be prima facie wrongful are limited.
They involve a situation where a third party,
A, the defendant,
intentionally
induces
a contracting party, B, to breach his contract with the claimant, C,
without lawful justification for doing so.’
[26]
But by that the court did not seek to restrict the cause of action to
inducement cases only. On the contrary, as stated, the court
expressly recognized those cases where a ‘right is usurped’,
or what this court referred to as the ‘deprivation
of a
benefit’.
[27]
There are therefore two types of delictual actions in interference
cases, namely those where inducement or enticement feature and
others
where there is a breach of a legal duty or the infringement of a
subjective right. The present matter falls into the latter
category.
As stated above, Masstores became aware of Pick n Pay’s rights
to exclusivity, by the latest on 9 May 2014. It
however continued to
trade as a supermarket, contrary to the restraint contained in its
lease and in defiance of the demand to
cease trading as a
supermarket. In doing so it acted wrongfully in preventing Pick n Pay
from obtaining the performance to which
it is entitled by virtue of
its contractual right of exclusivity. I agree with the conclusion of
the court a quo that the community’s
legal convictions would
not countenance such conduct. The next aspect for consideration is
intent.
[23]
In
Country Cloud,
the Constitutional Court agreed with the findings of this court that
dolus eventualis
would suffice as far as intent is concerned in a claim such as the
present one. It held that subjective foreseeability that interference
would cause loss, coupled with a reconciling with the foreseen
consequences, is sufficient to sustain such a claim.
[28]
In the present instance Masstores was asked in writing on 9 May 2014
by Hyprop to desist from conducting a supermarket at Game,
Capegate.
Masstores failed to heed this and other demands issued by Hyprop and
Pick n Pay. Masstores’ conduct clearly constitutes
direct
intent or, at the very least,
dolus
eventualis
. The
requirements of the delictual action had therefore been proved by
Pick n Pay, as the court a quo correctly found.
Is
the right to exclusivity a collateral right?
[24]
There is one last aspect to consider, namely the argument on behalf
of Massstores that the restricting rights in favour of
Pick n Pay had
never been transferred to Hyprop from its predecessor-in-title (the
JV) with whom Pick n Pay had negotiated the
rights. It was contended
in this regard that the operation of the rule ‘huur gaat voor
koop’ does not assist Pick n
Pay. Any rights and obligations
which went beyond a lessor’s obligation to give possession and
a lessee’s concomitant
obligation to pay rental fall outside
that rule and are ‘collateral rights unconnected with the
lease,’
[29]
so it was submitted. The extent of the maxim ‘huur gaat voor
koop’ is well established in our law. In
Mignoel
Properties (Pty) Ltd v Kneebone
,
after giving a detailed exposition of the origin and development of
the maxim, Friedman AJA concluded thus:
‘
From
the aforegoing it follows, in my view, that once the lessee elects to
remain in the leased premises after a sale, the seller
ex
lege
falls out of the picture and his place as lessor is taken by the
purchaser. . . On being so substituted for the seller, the purchaser
acquires all the rights which the seller had in terms of the lease,
except of course, collateral rights unconnected with the lease
.’
[30]
But
the restraint in the present instance is not a collateral right at
all. As explained above, it became common cause that Pick
n Pay as
anchor tenant required exclusivity in its lease agreement. It is
indisputable that such exclusivity was a
sine
qua non
for its
tenancy. Thus understood, the right to exclusivity is integral to the
right of occupancy and cannot be regarded as a collateral
right. The
argument that Pick n Pay’s personal right did not become
binding upon the successive owners of Capegate and that,
therefore,
there were no restraining rights between Pick n Pay and Hyprop, is
unsustainable and falls to be rejected.
[25]
The court a quo was therefore correct in holding that the
prerequisites for a final interdict had been met by Pick n Pay. The
appeal ought therefore to be dismissed with the usual concomitant
cost order.
[26]
The following order is issued:
The
appeal is dismissed with costs, including the costs of two counsel.
________________________
S A MAJIEDT
JUDGE OF APPEAL
APPEARANCES
For Appellant: S
A Cilliers SC (with K Green)
Instructed
by:
Cliffe Dekker Hofmeyer Inc., Sandton
Webbers, Bloemfotnein
For Respondents: D A Unterhalter SC
(with G D Marriot)
Instructed
by:
Nortons Inc., Sandton
McIntyre & van der Post,
Bloemfontein
[1]
Howorth & Fox v Hart
1906
20 EDC 276.
[2]
See: N J van der Merwe and P J J Olivier
Die
Onregmatige Daad in die Suid-Afrikaanse Reg
6ed
(1989) at 371 and 381, see footnote 6; Neethling et al
Law
of Delict
5 ed (2006) at 281 –
282, see footnote 247.
[3]
As was recognized in
Dantex
Investment Holdings (Pty) Ltd v Brenner & others NNO
(322/88)
[1989] ZASCA 151
;
1989 (1) SA 390
(A), provided that dolus (fault)
was properly pleaded and proved (at 395 F-G).
[4]
Compare:
Atlas
Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd &
others
1981 (2) SA 173 (T).
[5]
12 ed (2011).
[6]
Fundstrust (Pty) Ltd (in liquidation) v Van
Deventer
(365/95) [1996] ZASCA
125;1997 (1) SA 710 (A).
[7]
Id at 727A-B.
[8]
Coopers & Lybrand and others v Bryant
(459/93)
[1995] ZASCA 64
;
1995 (3) SA 761
(A) at
768 A-E.
[9]
KPMG Chartered Accountants (SA) v Securefin
Ltd and another
(644/07)
[2009] ZASCA
7
;
2009 (4) SA 399
(SCA) para 39-40; see also
International
Business Machines SA Ltd v Commissioner for Customs and Excise
(468/83)
[1985] ZASCA 87
;
1985 (4) SA 852
(A) at 874B.
[10]
Natal Joint Municipal Pension Fund v Endumeni
Municipality
(920/2010) [2012] ZASCA
13; 2012 (4) SA 593 (SCA).
[11]
Bothma-BathoTransport (Edms) Bpk v S Bothma &
Seun Transport (Edms) Bpk
(802/2012)
[2013] ZASCA 176; 2014 (2) SA 494 (SCA).
[12]
KPMG Chartered Accountants (SA) v Securefin
Ltd and another
supra, para 40.
[13]
Coopers & Lybrand and others v Bryant
supra, at 768 B-C;
Natal
Joint Municipal Fund v Endumeni Municipality,
supra,
para 18.
[14]
Buthelezi v Ndaba
(575/2012)
[2013] ZASCA 72
;
2013 (5) SA 437
(SCA) para 14.
[15]
Capnorizas v Webber Road Mansions (Pty) Ltd
1967 (2) SA 425 (A).
[16]
http://www.FoodCo.mobi/aboutus.php
[17]
In
Union Government
v Ocean Accident and Guarantee Corporation Ltd
1956
(1) SA 577
(A) this court held that negligent interference with a
contractual relationship is not actionable. This decision has been
subjected
to fierce criticism by a number of writers, see eg Van der
Merwe and Olivier at 375; Neethling et al at 284. It is, however,
not necessary to engage in this debate given the facts and the
outcome in the present matter.
[18]
Administrateur, Natal v Trust Bank van Afrika
Bpk
1979 (3) SA 824 (A).
[19]
Le Roux & others v Dey (Freedom of
Expression Institute and Restorative Justice Centre as Amici Curiae)
(CCT 45/10)
[2011] ZACC 4
;
2011 (3) SA 274
(CC)
para 122.
[20]
P Q R Boberg,
The
Law of Delict
: Vol 1, Aquilian
Liability, 1984 at 32: ‘[A] finding that the [subjective]
right existed implies that the defendant had
a legal duty not to
infringe it.’
[21]
Indac Electronics (Pty) Ltd v Volkskas Bank
(173/90)
[1991] ZASCA 190
;
1992 (1) SA 783
(A) at
797 E-J.
[22]
Country Cloud Trading CC v MEC, Department of
Infrastructure Development
(751/12)
[2013] ZASCA 161
;
2014
(2) SA 214
(SCA) para 26.
[23]
Lanco Engineering CC v Aris Box Manufacturers
(Pty) Ltd
1993 (4) SA 378 (D).
[24]
Id, at 381H – 328A.
[25]
Country Cloud Trading CC v MEC, Department of
Infrastructure Development
(CCT
185/13)
[2014] ZACC 28
;
2015 (1) SA 1
(CC) para 31.
[26]
Id, para 30.
[27]
See footnote 19 above. See also: Neethling et al
at 282, where the authors state that ‘[i]nterference with a
contractual
relationship is also present where a contracting party
does not obtain the performance to which he is entitled
ex
contractu
, but without breach of
contract taking place or the conduct amounting to enticement
(inducement)’.
[28]
Country Cloud Trading CC v MEC Department of
Infrastructure Development (CC)
para
36
.
[29]
Per Friedman AJA in
Mignoel
Properties (Pty) Ltd v Kneebone
(219/88)
[1989] ZASCA 110
;
1989
(4) SA 1042
(A) at 1051A-B.
[30]
Id, at 1050J - 1051A. See also generally
Genna-Wae Properties (Pty) Ltd v
Medio-Tronics (Natal) (Pty) Ltd
(435/93)
[1995] ZASCA 42
;
1995 (2) SA 926
(A);
Spearhead
Property Holdings Ltd v E&D Motors (Pty) Ltd
(214/2008)
[2009] ZASCA 70
;
2010 (2) SA 1
(SCA).