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[2019] ZASCA 142
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Liberty Group Limited and Others v Mall Space Management CCt/a Mall Space Management (644/18) [2019] ZASCA 142; 2020 (1) SA 30 (SCA) (1 October 2019)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 644/18
In
the matter between:
LIBERTY GROUP
LIMITED First
Appellant
LIBERTY TWO
DEGREES Second
Appellant
PARETO
LIMITED Third
Appellant
JHI RETAIL (PTY)
LTD Fourth
Appellant
EXCELLERATE
BRAND
MANAGEMENT (PTY)
LTD Fifth
Appellant
and
MALL
SPACE MANAGEMENT CC t/a
MALL
SPACE
MANAGEMENT Respondent
Neutral
citation:
Liberty Group Ltd v Mall
Space Management CC t/a Mall Space Management
(644/18)
[2019] ZASCA 142
(1 October 2019)
Coram:
Leach, Tshiqi, Swain, Zondi and Mocumie
JJA
Heard:
20 August 2019
Delivered:
1 October 2019
Summary:
Under the common law a mandate is in
general terminable at the will of the principal –
notice
of intention to terminate unnecessary –
principles
of Ubuntu and fairness not the correct bases to determine propriety
of termination of mandate –
issues of
good faith, fairness and equity
not
applicable –
against public policy to
coerce a principal into retaining individual as agent –
unlawful competition not established –
requirements of final
interdict not met.
ORDER
On
appeal from:
Gauteng
Division of
the High Court, Johannesburg (Shangisa AJ,
sitting
as court of first instance):
1 The appeal is upheld
with costs including costs of two counsel where employed.
2 The order of the high
court is set aside and replaced by the following:
‘
The
application is dismissed with costs.’
JUDGMENT
Zondi
JA (Leach, Tshiqi, Swain and Mocumie concurring)
[1]
Two issues arise in this appeal. The first, is whether the first to
fourth appellants, as principals, were obliged in terms
of the
contract of mandate they concluded with the respondent to give the
respondent six months’ notice before terminating
its mandate to
manage the promotional mall space and exhibition courts so as to
market, plan and co-ordinate promotional events
at their shopping
centres. The second, is whether the fifth appellant’s
assumption of the respondent’s mandate in relation
to the
shopping centres concerned, constituted unlawful competition.
[2]
The issues arise from an application brought by the respondent
against the first to fourth appellants in the Gauteng Division
of the
High Court, Johannesburg (high court) in which the respondent sought
an order (a) directing the first to fourth appellants
to permit the
respondent access to rental court space at the relevant shopping
centres in order to carry out its mandate; (b) interdicting
the first
to fourth appellants from terminating the agreement concluded in
April 2013 between the respondent and the first to fourth
appellants
for a period of six months from the date of the order and (c)
restraining the fifth appellant from competing unlawfully
with the
respondent by wrongfully interfering with the rights of the
respondent in the marketing, planning and co-ordinating of
promotional events and exhibitions at the shopping centres concerned.
[3]
The high court (Shangisa AJ), applying the constitutional values of
Ubuntu and fairness, granted the interdictory relief as
sought by the
respondent. The appeal to this court is with the leave of that court.
[4]
The issues must be considered against the following factual
background. The first appellant, Liberty Group Limited is the owner
of Eastgate Shopping Mall, Liberty Midlands Mall, Liberty Promenade
Mall. It co-owns Sandton City with the third appellant, Pareto
Limited. The fourth appellant, JHI Retail (Pty) Ltd (JHI Retail) is
the authorised managing agent of Liberty Group Limited, Liberty
Two
Degrees and Pareto Limited in respect of the commercial property
portfolio within which the four relevant malls fall. For convenience,
I will refer to the first to fourth appellants collectively as
Liberty Group.
[5]
Up until 4 September 2017 the respondent, Mall Space Management CC
(Mall Space) acted as an agent for the Liberty Group facilitating
the
conclusion of contracts with the exhibitors for the rental of mall
space or exhibition courts at the four shopping centres
for which it
was paid commission.
[6]
It is common cause that the parties never signed a written agreement
to regulate their contractual relationship. As it could
be expected
in a matter such as the present one, in the absence of a written
agreement regulating their contractual relationship,
the parties
would give different versions regarding what the exact terms of the
contract were. According to Mall Space it
provided services for
a number of years to Liberty Group in accordance with the terms and
conditions of the draft agreement which
Mall Space prepared during
April 2013. In terms of the draft agreement Liberty Group granted
Mall Space the right to operate as
an agent to hire and manage the
promotional mall space and exhibition courts at the relevant shopping
centres at a fee. Mall Space
alleges that initially its
responsibilities under the agreement included invoicing the exhibitor
and upon receipt of payment from
the exhibitor, pay it over to
Liberty Group.
[7]
Mall Space points out that this was the position up until May 2015 in
relation to the Eastgate Mall and March 2016 in relation
to the
Liberty Midlands Mall when the invoicing function was taken over by
the fifth appellant, Excellerate Brand Management (Pty)
Ltd
(Excellerate). On 16 November 2016 Liberty Group and Pareto
represented by JHI Retail concluded a written marketing service
level
agreement in terms of which Liberty Group and Pareto granted
Excellerate the right from 1 January 2017, to operate as an
agent to
rent and manage the promotional mall space and/or exhibition courts
at the relevant four shopping malls. The effect of
this was that the
invoicing function in respect of contracts relating to all four
shopping malls was taken over by Excellerate.
[8]
Shortly before its contract was terminated, some of Mall Spaces’
employees left its employ to join Excellerate after they
were offered
better employment prospects. Mall Space contends that these
developments and changes were not effected for operational
reasons,
but were made in order to facilitate an unlawful competition between
it and Excellerate.
[9]
Mall Space rejects Liberty Group and Excellarate’s suggestion
that it failed to account properly to Liberty Group for
the rental
income it received from the tenants and that this conduct had
anything to do with the reason for terminating its contract.
While
Mall Space admits that as at the end of February 2017 it was indebted
to Liberty Group and Pareto in the amount of R566 274.76
and
R3 634 491 respectively for which it signed
acknowledgements of debt, it, however, denies that this indebtedness
resulted because of its alleged poor management of the contract. Mall
Space avers that the source of its indebtedness was as a
result of
the inefficiency of the accounting system used by JHI Retail, Liberty
Group’s managing agent.
[10]
It is common cause that on 29 August 2017 JHI Retail, on behalf of
Liberty Group, wrote a letter to Mall Space informing the
latter that
its services to lease rental court space to tenants in the relevant
shopping centres would no longer be required with
effect from 4
September 2017. In response to the termination notice, on 4 September
2017, Mall Space’s attorneys addressed
a letter to JHI Retail
in which they contended that the termination of Mall Space’s
services constituted summary cancellation,
‘which is
unconstitutional and bad in law’. The letter went further to
state that JHI Retail was indebted to Mall Space
‘for the
unlawful cancellation in excess of R2.5 million, and as such once
quantified with certainty, we shall proceed against
yourself.’
[11]
Aggrieved by the termination of its services, on 11 September 2017,
Mall Space launched an application against Liberty Group
and
Excellerate in the high court, in which it sought interdictory
relief, the terms of which have been set out in para 2 above.
[12]
The essential bases of Mall Space’s claim against Liberty Group
are first, that as a result of termination of its mandate
it was
prevented from performing functions and earning commission on the
contracts it facilitated to the value of R5 026 749.
Secondly, Mall Space contended that the deprivation by Liberty Group
of its right to contract for rental space at the four shopping
centres impacted significantly upon its income and the scope of its
business.
[13]
Mall Space submitted that should the interdictory relief not be
granted, it would not obtain legal redress in the ordinary
course of
litigation. Mall Space further contended that it had the right to be
protected from the unlawful competition it faced
from Excellerate.
Lastly, Mall Space contended that it was a tacit term, alternatively
an implied term of the agreement between
it and Liberty Group that,
based on trade usage, any termination of the agreement between the
parties would require at least a
six month notice period. Mall Space
also contended that the constitutional values of Ubuntu and fairness
required the Liberty Group
to grant it six months’ notice of
termination of the mandate.
[14]
The allegations underpinning Mall Space’s application against
Excellerate are set out in para 25 of its founding affidavit
as
follows:
‘
25. In terminating
the right of the applicant at the four shopping centres as well as
repudiating the agreement, the respondents
are facilitating
Excellerate in going into unlawful competition with the applicant.
The entire stratagem which has been employed
by the respondents is as
follows:
25.1
The respondents have cancelled the contract between them and the
applicant and have denied the applicant the right to utilise
the
exhibition space in the four shopping centres.
25.2
Excellerate, which performs precisely the same functions as the
applicant has now spring boarded into the four shopping centres
which
were previously utilised by the applicant and in so doing has
capitalised on the model employed by the applicant in facilitating
the rental of the space and will now benefit from placing exhibitors
in the same areas which were previously utilised by the applicant….’
[15]
Liberty Group opposed the application. They denied that the matter
was urgent. Liberty Group contended that Mall Space’s
reliance
on the principles of Ubuntu and good faith was fundamentally unsound
as their propositions do not reflect the principles
of the law of
contract. They averred that the mandate given to Mall Space and to
which the common law applies, is revocable. Liberty
Group argued that
they, as principals, were free to terminate Mall Space’s
authority as their agent if they wished to do
so, without first
having to give any notice to Mall Space. Liberty Group accordingly
submitted that Mall Space’s application
had to be dismissed as
it had failed to meet the requirements for the final interdict.
[16]
Excellerate denied that it competed unlawfully with Mall Space. It
contended that it was appointed to take over the roles and
responsibilities of Mall Space pursuant to the marketing service
level agreement it concluded with Liberty Group. It pointed to
the
fact that at the time of the conclusion of the relevant marketing
service level agreement, Mall Space enjoyed no exclusive
right to
offer the relevant ‘mall space intermediary/agency service’.
[17]
The high court correctly found that, on the common cause facts, the
parties had concluded a contract of mandate. Pursuant to
this finding
the high court then formulated the issue before it to be whether
Liberty Group were entitled to give Mall Space five
days’
notice of termination. In other words, the issue was whether Mall
Space was entitled to a reasonable notice period
of six months which
it contended for.
[18]
Relying on
Mohamed’s
Leisure Holdings (Pty) Ltd
[1]
and
Nyandeni
Local Municipality
,
[2]
the high court stated that the matter cried out for the application
of the constitutional values of Ubuntu and fairness. Citing
a passage
in para 71 of the judgment of the Constitutional Court in
Everfresh
Market Virginia (Pty) Ltd
,
[3]
the high court held that ‘in the development of the common law,
it is highly desirable and in fact, necessary to infuse the
law of
contract with constitutional values, including values of Ubuntu which
inspire much of our constitutional compact’.
[19]
The high court rejected Liberty Group’s contention that Mall
Space had raised the constitutional values of Ubuntu and
fairness as
mere distractions. It found that in the circumstances of the contract
between the parties, the notice period of five
days was not only
unreasonable, but offended the constitutional values of fairness,
Ubuntu and dignity. In coming to that conclusion
the high court had
regard to the fact that the parties had a long standing contractual
relationship and that Mall Space had a number
of employees who were
likely to be affected by the termination of the contract.
[20]
As regards the case of unlawful competition against Excellerate, the
high court held that the assumption by Excellerate of
some of Mall
Space’s functions and its employment of some of Mall Space’s
employees before its mandate was terminated,
constituted an unlawful
competition. This finding by the high court also formed the basis of
its conclusion that the matter was
urgent.
[21]
The high court granted the relief as sought by Mall Space in the
notice of motion, the terms of which are set out in para [2]
of this
judgment. The high court’s findings and conclusions are
challenged both by Liberty Group and Excellerate in their
grounds of
appeal. The points they raised in their grounds of appeal mirror the
defences they advanced in the high court in opposing
Mall Space’s
application.
[22]
The law in regard to the grant of a final interdict is settled. An
applicant for an interdict must show the clear right; an
injury
actually committed or reasonably apprehended; and the absence of
similar protection by any other remedy.
[4]
It was held by this court in
Hotz
v University of Cape Town
[5]
that once the applicant has established the three requisite elements
for the grant of an interdict the scope, if any, for refusing
relief
is limited and that there is no general discretion to refuse relief.
[23]
In argument before us counsel for Liberty Group submitted that the
high court erred in granting Mall Space interdictory relief.
He
correctly pointed out that the relationship between the parties was
one of agent and principal. Relying on the judgment of this
court in
Stupel &
Berman Inc
[6]
he submitted that Liberty Group, as principals, were free to
terminate Mall Space’s authority if they wished to do so,
without
notice to Mall Space. He argued that the mandate having been
revoked, there was no basis for Mall Space’s application; and
that being the case it was not open to the high court to apply the
principle of Ubuntu, which is not a self-standing rule, to create
a
basis for Mall Space’s application to succeed.
[24]
It was not disputed by Mall Space that the contract between it and
Liberty Group was one of mandate in terms of which Mall
Space
facilitated the conclusion of the agreements for the hire of the
exhibition courts at the request or on the instruction of
Liberty
Group.
[7]
It was also accepted
by Mall Space that under the common law Liberty Group as principals,
were free to terminate their mandate.
[8]
[25]
Mall Space’s submission was, however, that since the agreement
did not provide for a notice to be given for its termination,
it was
subject to an implied or tacit term that it was terminable on
reasonable notice, which Mall Space contended would require
at least
six months’ notice. In other words, Mall Space’s argument
was that it had a right to be given six months’
notice before
its contract was terminated and this is the right which it sought to
protect by way of an interdict. This was so,
it was argued, because
it took six months to finalise the entire process. As counsel for
Mall Space was unable to point to any
authority from which such a
term was to be implied as a matter of law or trade usage, he
contended that the implementation of the
cancellation or termination
of the mandate in terms of the common law principle must be infused
with the constitutional values
of Ubuntu, fairness and human dignity
which imposed an obligation on Liberty Group to act reasonably when
it decided to terminate
the mandate. Counsel for Mall Space relied on
Mohamed’s
Leisure Holdings
[9]
as authority for this proposition. He argued that Liberty Group acted
in breach of these values when they terminated Mall Space’s
mandate by giving it five days’ notice.
[26]
In
Mohamed’s Leisure Holdings
the owner and lessor in
terms of a written lease agreement, had applied in the Gauteng Local
Division of the High Court, Johannesburg
for the eviction of its
lessee, Southern Sun Hotel Interests (Pty) Ltd, from the property.
The eviction was sought on the basis
that Southern Sun Hotel had
breached the agreement by failing to make payment of the rental on
due date. Although the high court
accepted that Southern Sun Hotel
had breached the agreement, it declined to grant an eviction order on
the basis of the reasoning
that the implementation of the
cancellation clause would be manifestly unreasonable, unfair and
offend the public policy. Applying
the value of Ubuntu to the facts
of the matter, the high court concluded that an order for the
eviction of Southern Sun Hotel would
offend the values of the
Constitution and dismissed the application.
[27]
The high court’s judgment in
Mohamed’s
Leisure Holdings
was
overturned on appeal by this court.
[10]
This court pointed out at para 28, that
the
terms of the contract were not on their face inconsistent with public
policy, the relative position of the parties was one of
bargaining
equality and the parties could have negotiated a clause in terms of
which the respondent was given notice to remedy
a breach before the
contract was cancelled. Timeous performance had not been impossible,
because the respondent could have diarised
well ahead of time to
ensure the important monthly payment was punctually made. Against
this background it could not be against
public policy to apply the
principle of pacta sunt servanda.
This court then added the following at para 30:
‘
The
fact that a term in a contract is unfair or may operate harshly does
not by itself lead to the conclusion that it offends the
values of
the Constitution or is against public policy. In some instances the
constitutional values of equality and dignity may
prove to be
decisive where the issue of the party’s relative power is an
issue. There is no evidence that the respondent’s
constitutional rights to dignity and equality were infringed. It was
impermissible for the high court to develop the common law
of
contract by infusing the spirit of Ubuntu and good faith so as to
invalidate the term or clause in question.’
[28]
Similar sentiments were expressed by this court in
Roazar
CC
.
[11]
The
issue that formed the focus of the proceedings in that case was
whether the respondent was correct in arguing that the agreement
imposed upon the parties a binding duty to negotiate in good faith.
What stood in the way of such a conclusion was the established
principle that an agreement that the parties would negotiate to
conclude another agreement was not enforceable, unless there existed
a deadlock breaking mechanism. The SCA held that no such mechanism
existed in that case. The respondent, however, relying on s 39(2)
of the Constitution which called for the infusion of contract law
with constitutional principles like Ubuntu, argued that the common
law should be developed to recognise the validity of an agreement to
negotiate, even where there existed no deadlock breaking mechanism.
It was held that the facts in that case demonstrated the
complications of developing the common law to compel parties to
negotiate
in good faith. It would be against public policy to coerce
a lessor to conclude an agreement with a tenant who he did not want
to have as tenant any longer.
It
then held at para 24 that it was difficult to conceive how a court,
in a purely business transaction, could rely on ‘Ubuntu’
to ‘import a term that was not intended by the parties to deny
the other party a right to rely on the terms of the contract
to
terminate it’.
[29]
Aware of the problem posed to his case by the
Mohamed’s
Leisure Holdings
and
Roazar CC
decisions, counsel for Mall
Space submitted that the present case was significantly
distinguishable, because unlike in
Mohamed’s Leisure
Holdings
and
Roazar CC
, this court is not called upon to
determine whether a clause in an agreement should or should not be
enforced. In this appeal,
he argued, the court is not concerned with
such a question, but whether within the particular circumstances of
the facts of this
appeal, five days’ notice was objectively
reasonable in order for it to be valid and whether the effect is
subjectively reasonable
in the particular circumstances. I disagree.
What these two cases establish is the principle that the concepts of
good faith, justice,
reasonableness and fairness are not
self-standing rules which can justify the avoidance of performance
under a contract. They are
underlying values that are given
expression through existing rules of law.
[30]
In
South
African Forestry Co Ltd
[12]
para 27, Brand JA puts it this way:
‘
In these cases it
was held by this Court that, although abstract values such as good
faith, reasonableness and fairness are fundamental
to our law of
contract, they do not constitute independent substantive rules that
courts can employ to intervene in contractual
relationships. These
abstract values perform creative, informative and controlling
functions through established rules of the law
of contract. They
cannot be acted upon by the courts directly. Acceptance of the notion
that judges can refuse to enforce a contractual
provision merely
because it offends their personal sense of fairness and equity will
give rise to legal and commercial uncertainty.
After all, it has been
said that fairness and justice, like beauty, often lie in the eye of
the beholder. In addition, it was held
in
Brisley and Afrox
Healthcare
that ─ within the protective limits of public
policy that the courts have carefully developed, and consequent
judicial control
of contractual performance and enforcement ─
constitutional values such as dignity, equality and freedom require
that courts
approach their task of striking down or declining to
enforce contracts that parties have freely concluded, with perceptive
restraint.’
[31]
In addition, writing in the South African Law Journal,
[13]
Brand JA said the following at 89:
‘…
imprecise
and nebulous statements about the role of good faith, fairness and
equity, which would permit idiosyncratic decision-making
on the basis
of what a particular judge regards as fair and equitable, are
dangerous. They lead to uncertainty and a dramatic increase
in often
pointless litigation and unnecessary appeals. Palm-tree justice
cannot serve as a substitute for the application of established
principles of contract law.’
It
follows on the principles laid down by this court in
Mohamed's
Leisure Holdings
, that the high court erred in this matter.
[32]
Liberty Group terminated their mandate for a good reason. There was
no unlawful infringement of Mall Space’s rights.
The evidence
established that Mall Space failed properly to account to Liberty
Group for the rental income it received from the
tenants. Mall Space
was substantially in arrears with its payment of the monies due to
them as its principals and this was not
disputed. In fact, it signed
acknowledgements of debt. In my view, Liberty Group was quite
entitled to terminate their mandate
at any time on giving notice to
that effect to Mall Space. I do not think that any question on length
of notice arises. The mandate
did not impose an obligation on Liberty
Group to give Mall Space six months’ notice if they wanted to
terminate it. Mall
Space has not shown that it had the right to be
given six months’ notice before its contract could be
terminated. In these
circumstances, it was not competent for the high
court to grant an order interdicting Liberty Group from cancelling
the contract.
In any event, if Mall Space had incurred any
expense or suffered any damage or was entitled to be paid commission
before
the revocation it was entitled to be indemnified because its
right would have arisen while the mandate existed
[14]
which therefore means that Mall Space was not without an alternative
remedy. I am not satisfied that that alternative remedy would
not
have afforded Mall Space a remedy that would give it similar
protection.
[33]
Mall Space’s case against Excellerate was based on unlawful
competition. This court held in
Schultz
[15]
that,
as a general rule, every person is entitled freely to carry on his
trade or business in competition with his rivals. But the
competition
must remain within lawful bounds. If it is carried on unlawfully in
the sense that it involves a wrongful interference
with another’s
rights as a trader that constitutes an injuria for which the Aquilian
action lies if it has directly resulted
in loss.
[34]
Counsel for Excellerate, while associating himself with the
submissions made by counsel for Liberty Group, pointed out that
the
high court erred in finding that Excellerate’s assumption of
the roles and responsibilities which were provided by Mall
Space to
Liberty Group constituted an unlawful competition. This was so, he
argued, because, first, the contract which it had with
Liberty Group
did not grant it an exclusive right. Secondly, Excellerate took over
from Mall Space, pursuant to the service level
marketing agreement it
concluded with Liberty Group, because they were not satisfied with
the quality of services they received
from Mall Space. The latter
failed to account properly to Liberty Group as its principals, for
the rental income Mall Space received
from tenants, who hired space
at their shopping malls.
[35]
In order to succeed with a final interdict against Excellerate, Mall
Space had to show that the contractual right it obtained
from Liberty
Group protects an interest that is also enforceable against
Excellerate with which it has no contractual relationship;
that
Excellerate unlawfully infringed or threatened to infringe that right
and that there was no adequate alternative remedy. In
my view, Mall
Space failed to establish a clear right. First, the mandate it
obtained from Liberty Group did not give it an exclusive
right to
operate at the relevant shopping malls and it claims no entitlement
to exclusivity. Secondly, Excellerate was duly appointed
by Liberty
Group to assume the functions and responsibilities which were
hitherto performed by Mall Space after termination of
its mandate.
There is no ground upon which the alleged interference with Mall
Space’s rights can be said to be unlawful.
And I do not know
how an interdict can be granted where there is no actual or
threatened unlawfulness in the infringement of a
right.
[36]
It must be emphasised that in the present case we
are not dealing with a term of a contract which is alleged to be
contrary to good
faith, fairness and equity. We are dealing with a
rule of the common law, namely, that a principal is entitled to
revoke a mandate
of agency. It would be against public policy, to
coerce a principal into retaining an individual as his agent, when he
no longer
wishes to retain him as such. If the termination of the
mandate has prejudiced the agent his remedy lies in a claim for
damages
and not in an order compelling the principal to retain him as
his agent in the future.
[37]
In
this case, Liberty Group, as principals, terminated their mandate as
they were not happy with the quality of services they received
from
Mall Space. There was no obligation on them to have given Mall Space
six months’ notice before doing so. They had a
valid reason to
cancel the mandate. Liberty Group, as principals, were entitled to
terminate their mandate when it became clear
to them that Mall Space
could not deliver on their mandate. Mall Space failed to account
properly to them and they could not be
expected to wait for the worst
to happen before taking action to protect their own financial
interests, which had been placed in
jeopardy by Mall Space’s
mismanagement of the contract. The high court erred in applying
directly the principle of Ubuntu
to the law of contract as a basis to
grant the relief. The high court erred in relying on the high court’s
judgment in
Mohamed’s
Leisure Holdings
[16]
as the basis for its authority to deviate from applying the common
law principle that the contract of mandate is terminable at
the will
of the principal. That judgment is no longer authority as it was
subsequently overruled by this court as what was stated
there do not
reflect the principles of our law as they stand currently.
[38]
In relation to Mall Space’s cause of action based on unlawful
competition, that claim should have failed because there
was no case
made out for it. Excellerate did not act wrongfully in assuming some
of the roles and responsibilities which were hitherto
performed by
Mall Space in terms of the mandate. Mall Space’s mandate was
lawfully terminated and there was no obligation
upon the principals
to have given Mall Space six months’ notice period before
terminating their mandate.
[39]
In the result it is ordered:
1 The appeal is upheld
with costs including costs of two counsel where employed.
2 The order of the high
court is set aside and replaced by the following:
‘
The
application is dismissed with costs.’
___________________
D
H Zondi
Judge
of Appeal
Appearances
For first to fourth
appellants: H C Bothma (with him M Muchenje)
Instructed
by: Webber Wentzel, Johannesburg
Symington
& De Kok, Bloemfontein
For fifth appellant: M
Nowitz
Instructed
by: Schindlers Attorneys, Johannesburg
Webbers,
Bloemfontein
For
respondent: S Cohen
Instructed
by: Dempster McKinnon Inc, Sandton
Phatshoane
Henney Attorneys, Bloemfontein
[1]
Mohamed’s
Leisure Holdings (Pty) Ltd v Southern Sun Hotel Interests (Pty)
Ltd
2017 (4) SA 243
(GJ).
[2]
Nyandeni
Local Municipality v Hlazo
2010
(4) SA 261 (ECM).
[3]
Everfresh
Market Virginia (Pty) Ltd v Shoprite Checkers (Pty)
Ltd
[2011] ZACC 30; 2012 (1) SA 256 (CC).
[4]
Setlogelo
v Setlogelo
1914 AD 221
at 227. These requisites have been restated by this
court, most recently in
Hotz
& others v University of Cape Town
(730/2016)
[2016] ZASCA 159
;
[2016] 4 All SA 723
(SCA);
2017 (2) SA
485
(SCA) (20 October 2016).
[5]
Ibid fn 4.
[6]
Stupel
& Berman Inc v Rodel Financial Services (Pty)
Ltd [2015] ZASCA 1; 2015 (3) SA 36 (SCA).
[7]
LAWSA vol 17(1) 2 ed para 2.
[8]
Ibid fn 4 para 17; A J Kerr
The
Law of Agency
4ed
p 194.
[9]
Ibid
fn 1.
[10]
Mohamed’s
Leisure Holdings (Pty) Ltd v Southern Sun Hotel Interests (Pty) Ltd
[2017]
ZASCA 176
;
2018 (2) SA 314
(SCA).
[11]
Roazar
CC v The Falls Supermarket CC
[2017] ZASCA 166; 2018 (3) SA 76 (SCA).
[12]
South
African Forestry Co Ltd v York Timbers Ltd
2005 (3) SA 323 (SCA).
[13]
Juta 2009 Volume 126 p 71 ‘The role of good faith, equity and
fairness in the South African
L
aw
of Contract: The influence of the common law and the Constitution’.
[14]
Kerr
The
Law of Agency
at
p 195.
[15]
Schultz
v Butt
1986
(3) AD 667
at 678F-G
[1986] ZASCA 47
; ;
[1986] 2 All SA 403
(A) at 407.
[16]
Ibid fn 1.