About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2007
>>
[2007] ZACC 2
|
|
Crown Restaurant CC v Gold Reef City Theme Park (Pty) Ltd (CCT05/07) [2007] ZACC 2; 2007 (5) BCLR 453 (CC); 2008 (4) SA 16 (CC) (6 March 2007)
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
05/07
THE CROWN RESTAURANT
CC Applicant
versus
GOLD REEF CITY THEME
PARK (PTY) LTD Respondent
Decided on : 6 March
2007
JUDGMENT
THE COURT:
This is an
application for leave to appeal which is dealt with in terms of
Constitutional Court rule 19(6)(b). In terms of a
written lease
agreement, the applicant, a close corporation, leased premises from
Gold Reef City Theme Park (Pty) Ltd (the company)
and fell into
rental arrears. At one stage the amount owing was at least R 71
000, 00. The company cancelled the lease and
applied to the
Johannesburg High Court for an ejectment order and for payment of
an amount of R 8 743, 82. The applicant opposed
the application on
the basis that the company had verbally agreed to grant it an
indulgence and allow it time within which to
make proposals for
settling the rental arrears. It was contended that it was implicit
that the company had waived its rights
to cancel the lease
agreement.
The company
denied the verbal agreement and contended that in any event, it was
entitled to rely on a non-variation clause in
the lease agreement
which provided that no agreement varying, adding to, deleting from
or cancelling the lease agreement would
be effective unless reduced
to writing and signed by the parties. The company also relied on
another clause in the lease agreement
which provided that any
indulgence granted did not preclude either party from enforcing any
of its rights. The High Court, per
Msimeki AJ, agreed that the
company was entitled to rely on both clauses and granted the relief
sought.
The applicant
applied unsuccessfully to the Supreme Court of Appeal for leave to
appeal the judgment of the High Court. Hence,
the present
application in which, for the first time, the applicant seeks to
have the
exceptio doli
generalis
reintroduced as a
defence, contending that this equitable remedy is in line with
constitutional values.
1
It was contended that because of the verbal agreement referred to
in paragraph 1, it was unconscionable for the company to rely
on
the clauses. The applicant also tentatively suggested that the
cancellation of the lease constituted an arbitrary deprivation
of
property and suggested, in a manner not entirely intelligible, that
the termination of the contract in the circumstances of
the case
was disrespectful of the applicant and affected its dignity.
Msimeki AJ was
called upon to deal
only
with the waiver defence and did so.
He was not invited to develop the common law of contract to
promote the spirit, purport and
objects of the Bill of Rights, nor
to address any of the other constitutional issues now raised by the
applicant. On the limited
basis on which the case was presented to
him, the learned judge arrived at the correct conclusion.
This Court has
stated repeatedly that it is generally undesirable for it to sit as
a court of first and last instance.
2
In
Fleecytex
, this Court stated the following:
â
Experience shows that
decisions are more likely to be correct if more than one court has
been required to consider the issues
raised. In such circumstances
the losing party has an opportunity of challenging the reasoning on
which the first judgment is
based, and of reconsidering and
refining arguments previously raised in the light of such
judgment.â
3
In respect of
the development of the common law of contract, the High Court and
the Supreme Court of Appeal have a vital role
to play. There are
no compelling reasons for us to deal with the issues raised by the
applicant as a court of first and last
instance. Besides, the
further exploration that was necessary to enable the proper
adjudication of the issues now raised by
the applicant was
understandably not undertaken by Msimeki AJ. Furthermore, disputes
unrelated to the narrow question before
him did not require
resolution. Litigants are once again reminded that care should be
taken to identify properly at the time
of the institution of
proceedings which constitutional issue they wish to have addressed
so that they, the courts and practitioners
can ensure that all the
necessary material is available to enable proper adjudication of
cases at all levels of the judicial
system.
4
For all the
reasons mentioned, it is not in the interests of justice that the
application be granted. The application for leave
to appeal is
dismissed.
Moseneke DCJ,
Madala J, Mokgoro J, Navsa AJ, Ngcobo J, Nkabinde J, OâRegan J,
Sachs J, Skweyiya J, Van der Westhuizen J.
1
In Roman law the
exceptio doli generalis
was an equitable remedy. Before
Bank of Lisbon and South Africa
Ltd v De Ornelas and Another
1988 (3) SA 580
(A), it was
generally assumed that the
exceptio doli generalis
provided a
remedy against the enforcement of an unfair contract and against the
unfair enforcement of contracts. In
Bank of Lisbon
, the
Appellate Division decided that the
exceptio doli generalis
was not part of our law and âbur[ied]â it (at 607B). See also
Christie The
Law of Contract
4 ed (Butterworths, Durban 2001)
at 14-15. In April 1998 the Law Commission presented a report in
respect of the unfair making
of contracts and on unfair terms and
unfair enforcements of contracts. The report has as yet not
resulted in legislation.
2
Satchwell v President of the Republic of South
Africa and Another
[2003] ZACC 2
;
2003 (4) SA 266
(CC);
2004 (1) BCLR 1
(CC) at
para 6;
Phenithi v Minister of Education and Others
2003 (11)
BCLR 1217
(CC) at para 5;
Dormehl v Minister of Justice and
Others
2000 (2) SA 987
(CC);
2000 (5) BCLR 471
(CC) at para 5;
Christian Education South Africa v Minister of Education
1999
(2) SA 83
(CC);
1998 (12) BCLR 1449
(CC) at para 12;
Bruce and
Another v Fleecytex Johannesburg CC and Others
[1998] ZACC 3
;
1998
(2) SA 1143
(CC);
1998 (4) BCLR 415
(CC) at para 8.
3
Fleecytex
above n 2 at para 8.
4
Prophet v National Director of Public Prosecutions
[2006] ZACC 17
;
2007 (2)
BCLR 140
(CC);
2006 (2) SACR 525
(CC); at paras 49-53;
Shaik
v Minister of Justice and Constitutional Development
[2003] ZACC 24
;
2004 (3) SA
599
(CC);
2004 (4) BCLR 333
(CC) at para 40;
Prince v President,
Cape Law Society
[2000] ZACC 28
;
2001 (2) SA 388
(CC);
2001 (2) BCLR 133
(CC) at
para 22.