PORTFOLIO EXAM (SEMESTER 2)
DUE 7 October 2025
QUESTION 1
Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC)
Facts:
• Everfresh leased premises from Shoprite under a written contract that included an option
to renew.
• The renewal clause stated the lease could be renewed “on terms to be agreed.”
• Shoprite refused to negotiate renewal, arguing the clause was unenforceable.
• Everfresh claimed that principles of fairness, good faith, and constitutional values should
require Shoprite to negotiate in good faith.
• The matter eventually reached the Constitutional Court after being dismissed in lower
courts.
Legal Question:
The legal question was whether the principle of good faith, informed by constitutional values,
could render an agreement to negotiate enforceable in South African contract law.
Ratio / Reasons:
The Constitutional Court recognised that South African private law is influenced by constitutional
values such as dignity, equality, and freedom. The Court emphasised that contracts must be
interpreted in line with transformative constitutionalism, which seeks to infuse fairness and
justice into all legal relations.
Although the Court did not directly overturn the principle that “agreements to agree” are
unenforceable, it strongly suggested that future development of the common law may