In the first mentioned instance one is concerned with the infringement of a personal right. The outside party’s conduct results in the contracting party not obtaining the performance to which it is entitled on the contract, or where a contracting party’s obligations under the contract are increased. Our law has recognised for more than a century that a delictual action lies in instances where an outside party knowingly deprives a person of his rights under a contract with another. Although Pick n Pay had joined Hyprop as a second respondent, and notwithstanding the fact that the latter had filed answering papers, no relief was sought in the court a quo against Hyprop. ![]() This appeal is with the leave of the court a quo. The interference was alleged to relate to Masstores’ operating a general food supermarket at the Capegate shopping centre in Brackenfell, Western Cape (Capegate). In the Gauteng Division of the High Court, Pretoria, J W Louw J granted a final interdict restraining the appellant, Masstores (Pty) Ltd (Masstores), from unlawfully interfering in the contractual relationship between the first respondent, Pick n Pay Retailers (Pty) Ltd (Pick n Pay), and the second respondent, Hyprop Investments Limited (Hyprop). This case concerns the alleged unlawful interference with a contractual relationship. ‘trading in competition with a contracting party in contravention of a restraint clause in a lease agreement constitutes unlawful interference in the contractual relationship between the contracting party and the landlord – an exclusivity clause in a lease agreement is an integral part of that lease and not a collateral right’. The Supreme Court of Appeal disallowed the appeal and held that “Masstores’s trading as a general supermarket does not deprive Pick n Pay of its entitelement to continue trading as a general supermarket in the shopping centre,” stated Froneman J, writing for the majority. Froneman J. added that Pick n Pay’s “exclusivity” may have been impacted, but this exclusivity was not “usurped” by Masstores.Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd (20711/14) ZASCA 164(25 November 2015) per Majiedt JA (Maya DP, Leach, Theron and Zondi JJA concurring). However, there was no “contractual relationship” between the two retailers. The majority judgement, explained that instead of making the case against the lessors Hyprop, Pick n Pay made the case against the tenant Masstores. The Supreme Court of Appeal (SCA) upheld the finding that Masstores breached its own lease agreement. However the Constitutional Court reversed the SCA ruling and held that Masstores did not violate any agreements by trading as a supermarket. ![]() ![]() Pick n Pay had obtained an interdict from the High Court to prevent Masstores from operating as a supermarket at the shopping centre. Pick n Pay argued that it was an “intentional interference” with its contractual relations with Hyprop. ![]() Pick n Pay contended Masstores’ breach with its own lease agreement, as far back as 2006, which prohibited it from operating as a general food supermarket in the shopping complex. Since there was no contractual relationship between Pick n Pay and Masstores, Pick n Pay sought relief against Masstores under the delict of “interference with contractual relations”.Īccording to Pick n Pay, Game’s selling of fresh foods interfered with its contractual agreement to have the exclusive right to trade as a supermarket in the shopping centre, which is owned by Hyprop. Interestingly, Pick n Pay was not seeking enforcement of the contractual exclusivity right against Hyprop, but against Masstores, who is also a tenant in the complex. The “trade” Pick n Pay sought to protect was an exclusive contractual right to trade as a supermarket in a shopping complex, granted to Pick n Pay by its lessor (Hyprop) in a lease agreement. A recently reported judgment by the Constitutional Court of South Africa in the case of Masstores (Pty) Limited v Pick n Pay Retailers (Pty) Limited (CCT242/15) ZACC 42 concerned the alleged interference by the applicant (Masstores) with the trade of the respondent (Pick n Pay).
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