, PLEASE USE THIS DOCUMENT AS A GUIDE TO ANSWER YOUR ASSIGNMENT
QUESTION ONE
1. Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC) is
an example of a case where the Constitutional Court applied the principles of transformative
constitutionalism. Discuss this case in the prescribed format (facts, legal question, reasons for the
decision or ratio decidendi and the court’s findings).
Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC)
Facts
The case of Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd revolves around a
lease dispute between Everfresh and Shoprite Checkers. Initially, Everfresh and Shoprite's
predecessor entered into a lease agreement for a five-year term from 1 April 2004 to 31 March 2009.
This lease contained a clause providing Everfresh with an option to renew the lease for an additional
period of 4 years and 11 months, subject to mutual agreement on the rental for the renewal period.
Everfresh exercised its right to renew the lease in July 2008, proposing a rental escalation. However,
Shoprite, having acquired the property during the lease term, disagreed with Everfresh's
interpretation of the renewal clause, arguing that no enforceable right of renewal existed under the
terms of the lease. Shoprite maintained that the lease would terminate on 31 March 2009, and
Everfresh would need to vacate the premises, especially since no agreement on the rental for the
renewal period had been reached by the stipulated deadline (31 December 2008). Everfresh, on the
other hand, contended that Shoprite was obligated to negotiate the rental in good faith, in line with
the constitutional values of fairness and dignity1 .
Legal Question
The main legal question in this case was whether the common law, particularly in the context of
lease agreements, should be developed to require a duty to negotiate in good faith regarding the
renewal of contracts. Specifically, the issue at hand was whether Section 39(2) of the Constitution
could be applied to develop the common law and obligate parties to engage in good faith
negotiations, even when such a duty was not explicitly stated in the contract. The question also
involved whether the refusal of Shoprite to negotiate in good faith violated constitutional principles,
such as fairness and dignity, as enshrined in the Bill of Rights2 .
Ratio Decidendi
The Constitutional Court, in its judgment, emphasized the need to infuse the common law of contract
with constitutional values. While acknowledging that the lease agreement did not explicitly require
good faith negotiations, the Court found that the principles of transformative constitutionalism
required that the law evolve in light of constitutional imperatives. Section 39(2) of the Constitution
mandates that when interpreting and developing the common law, courts must promote the spirit,
purport, and objects of the Bill of Rights, which includes the values of fairness, dignity, and equality.
The Court noted that although the agreement between Everfresh and Shoprite did not explicitly
impose a duty to negotiate in good faith, this did not preclude the possibility of such an obligation
being developed through the common law to ensure that contracts are interpreted in a manner that
promotes justice and fairness. The Court underscored that an implied duty to negotiate in good faith
would not only benefit the immediate parties but also contribute to the broader goal of advancing
social justice and fairness in contractual relations1.
1: (SAFLII n.d.)
2: (IRM1501, Study Guide. p. 36)
QUESTION ONE
1. Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC) is
an example of a case where the Constitutional Court applied the principles of transformative
constitutionalism. Discuss this case in the prescribed format (facts, legal question, reasons for the
decision or ratio decidendi and the court’s findings).
Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC)
Facts
The case of Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd revolves around a
lease dispute between Everfresh and Shoprite Checkers. Initially, Everfresh and Shoprite's
predecessor entered into a lease agreement for a five-year term from 1 April 2004 to 31 March 2009.
This lease contained a clause providing Everfresh with an option to renew the lease for an additional
period of 4 years and 11 months, subject to mutual agreement on the rental for the renewal period.
Everfresh exercised its right to renew the lease in July 2008, proposing a rental escalation. However,
Shoprite, having acquired the property during the lease term, disagreed with Everfresh's
interpretation of the renewal clause, arguing that no enforceable right of renewal existed under the
terms of the lease. Shoprite maintained that the lease would terminate on 31 March 2009, and
Everfresh would need to vacate the premises, especially since no agreement on the rental for the
renewal period had been reached by the stipulated deadline (31 December 2008). Everfresh, on the
other hand, contended that Shoprite was obligated to negotiate the rental in good faith, in line with
the constitutional values of fairness and dignity1 .
Legal Question
The main legal question in this case was whether the common law, particularly in the context of
lease agreements, should be developed to require a duty to negotiate in good faith regarding the
renewal of contracts. Specifically, the issue at hand was whether Section 39(2) of the Constitution
could be applied to develop the common law and obligate parties to engage in good faith
negotiations, even when such a duty was not explicitly stated in the contract. The question also
involved whether the refusal of Shoprite to negotiate in good faith violated constitutional principles,
such as fairness and dignity, as enshrined in the Bill of Rights2 .
Ratio Decidendi
The Constitutional Court, in its judgment, emphasized the need to infuse the common law of contract
with constitutional values. While acknowledging that the lease agreement did not explicitly require
good faith negotiations, the Court found that the principles of transformative constitutionalism
required that the law evolve in light of constitutional imperatives. Section 39(2) of the Constitution
mandates that when interpreting and developing the common law, courts must promote the spirit,
purport, and objects of the Bill of Rights, which includes the values of fairness, dignity, and equality.
The Court noted that although the agreement between Everfresh and Shoprite did not explicitly
impose a duty to negotiate in good faith, this did not preclude the possibility of such an obligation
being developed through the common law to ensure that contracts are interpreted in a manner that
promotes justice and fairness. The Court underscored that an implied duty to negotiate in good faith
would not only benefit the immediate parties but also contribute to the broader goal of advancing
social justice and fairness in contractual relations1.
1: (SAFLII n.d.)
2: (IRM1501, Study Guide. p. 36)
