PORTFOLIO Semester 2 2025
Unique #
Due Date: 7 October 2025
Detailed solutions, explanations, workings
and references.
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, QUESTION 1
EVERFRESH MARKET VIRGINIA (PTY) LTD V SHOPRITE CHECKERS (PTY)
LTD 2012 (1) SA 256 (CC)
Facts
Everfresh Market Virginia (Pty) Ltd leased premises in the Virginia Shopping Centre
from Shoprite Checkers (Pty) Ltd. The lease, valid from April 2004 to March 2009,
contained a renewal clause requiring both parties to agree on rental for the extended
term. Everfresh gave notice to renew, suggesting a new rental, but Shoprite refused,
arguing the clause was unenforceable. Everfresh stayed on after the lease expired,
and Shoprite sought eviction. Both the High Court and the Supreme Court of Appeal
held that the clause created no enforceable duty to negotiate. Everfresh then
approached the Constitutional Court, raising constitutional values for the first time.1
Legal Question
The central issue was whether clause 3 of the lease imposed a legal obligation on
the parties to negotiate renewal terms in good faith, and if not, whether the common
law of contract should be developed in line with section 39(2) of the Constitution to
require such negotiation.2
Reasons for the Decision / Ratio Decidendi
The Constitutional Court, in a majority led by Yacoob J, held that courts must
consider whether the common law needs development to align with constitutional
values, including good faith and ubuntu in contracts. Section 39(2) requires the law
of contract to promote the spirit and purport of the Bill of Rights.3 The High Court‟s
failure to assess whether common law should evolve to enforce bona fide
1
Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC) [3]–[8].
2
Everfresh (n 1) [5].
3
Everfresh (n 1) [23].
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