IRM1501
PORTFOLIO EXAM
DUE DATE:7-10 OCTOBER 2025
,IRM1501
PORTFOLIO EXAM QUESTIONS
DUE 7-10 OCTOBER 2025
QUESTION ONE
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).
Facts
Everfresh (the lessee) occupied premises at the Virginia Shopping Centre under a
written lease that ran from 1 April 2004 to 31 March 2009 and contained a renewal
clause which stated that the rentals for any renewal “shall be agreed upon” between the
parties. Everfresh gave written notice in July 2008 purporting to exercise the renewal
and proposed a starting rental. Shoprite (which had acquired the property during the
lease) replied that the clause did not create an enforceable option to renew, that it was
not obliged to negotiate and that Everfresh must vacate when the lease expired.
Everfresh stayed in occupation and Shoprite instituted ejectment proceedings; the High
Court (and later the SCA via leave-refusal) granted eviction. Everfresh then applied to
the Constitutional Court.
Legal question (framed constitutionally)
, Two linked legal questions reached the Constitutional Court: (1) Does a contractual
clause that provides rent for a renewal “shall be agreed upon” create an enforceable
obligation to negotiate (and if so, on what standard reasonable and/or in good faith)?
and (2) if the common law treats agreements to negotiate as unenforceable, should the
courts develop the common law in light of section 39(2) of the Constitution so that
contractual promises to negotiate are enforceable (or at least subject to a duty of good
faith)? In short: must the common law be adapted to infuse contractual dealings with
constitutional values (including ubuntu and good faith)?
Reasons for the decision / Ratio decidendi
The Court (majority judgment by Yacoob J) approached the matter as one that implicitly
raised section 39(2) issues, the obligation to develop the common law where it is
deficient in promoting constitutional values. Yacoob J held that:
The interpretation question and the enforceability of an obligation to negotiate could not
properly be decided without asking whether the common law should be developed in
light of the Constitution (section 39(2)). The High Court had not undertaken that two-
stage inquiry.
Courts have a “general obligation” to consider whether the common law requires
development to promote the spirit, purport and objects of the Bill of Rights; where that
issue is implicitly raised the trial court must consider it.
Given these propositions and the particular contractual facts (a renewal clause using
mandatory wording and the commercial background), there were reasonable prospects
that the common law might be developed to give meaningful effect to an obligation to
negotiate reasonably and in good faith.
Because the High Court had not considered the constitutional development question,
Yacoob J concluded that the appropriate remedy was to grant leave to appeal and remit
the matter to the High Court to consider whether and how the common law should be
PORTFOLIO EXAM
DUE DATE:7-10 OCTOBER 2025
,IRM1501
PORTFOLIO EXAM QUESTIONS
DUE 7-10 OCTOBER 2025
QUESTION ONE
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).
Facts
Everfresh (the lessee) occupied premises at the Virginia Shopping Centre under a
written lease that ran from 1 April 2004 to 31 March 2009 and contained a renewal
clause which stated that the rentals for any renewal “shall be agreed upon” between the
parties. Everfresh gave written notice in July 2008 purporting to exercise the renewal
and proposed a starting rental. Shoprite (which had acquired the property during the
lease) replied that the clause did not create an enforceable option to renew, that it was
not obliged to negotiate and that Everfresh must vacate when the lease expired.
Everfresh stayed in occupation and Shoprite instituted ejectment proceedings; the High
Court (and later the SCA via leave-refusal) granted eviction. Everfresh then applied to
the Constitutional Court.
Legal question (framed constitutionally)
, Two linked legal questions reached the Constitutional Court: (1) Does a contractual
clause that provides rent for a renewal “shall be agreed upon” create an enforceable
obligation to negotiate (and if so, on what standard reasonable and/or in good faith)?
and (2) if the common law treats agreements to negotiate as unenforceable, should the
courts develop the common law in light of section 39(2) of the Constitution so that
contractual promises to negotiate are enforceable (or at least subject to a duty of good
faith)? In short: must the common law be adapted to infuse contractual dealings with
constitutional values (including ubuntu and good faith)?
Reasons for the decision / Ratio decidendi
The Court (majority judgment by Yacoob J) approached the matter as one that implicitly
raised section 39(2) issues, the obligation to develop the common law where it is
deficient in promoting constitutional values. Yacoob J held that:
The interpretation question and the enforceability of an obligation to negotiate could not
properly be decided without asking whether the common law should be developed in
light of the Constitution (section 39(2)). The High Court had not undertaken that two-
stage inquiry.
Courts have a “general obligation” to consider whether the common law requires
development to promote the spirit, purport and objects of the Bill of Rights; where that
issue is implicitly raised the trial court must consider it.
Given these propositions and the particular contractual facts (a renewal clause using
mandatory wording and the commercial background), there were reasonable prospects
that the common law might be developed to give meaningful effect to an obligation to
negotiate reasonably and in good faith.
Because the High Court had not considered the constitutional development question,
Yacoob J concluded that the appropriate remedy was to grant leave to appeal and remit
the matter to the High Court to consider whether and how the common law should be
