1 IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE CCT 242/2015 In the matter between
MASSTORES (PTY) LTD Applicant
(Appellant in the Supreme Court of Appeal and First Respondent in the High Court) and
PICK N PAY RETAILERS (PTY) LTD Respondent
(First Respondent in the Supreme Court of Appeal And Applicant in the High Court)
RESPONDENT’S PRACTICE NOTE
1. The names of parties and the case number
1.1 These details appear from the heading.
2. Nature of the proceedings
2.1 The applicant (Masstores) seeks leave to appeal against the judgment and order of the Supreme Court of Appeal (SCA) granted on 25 November 2015 dismissing its appeal and thus upholding the judgment and order of the High Court.
2.2 The High Court granted a final interdict prohibiting Masstores from interfering in the contractual relationship between the first respondent (Pick n Pay) and the second respondent (Hyprop) by operating a general food supermarket at the Capegate shopping centre in Brackenfell in the Western Cape (Capegate).
2 3. Issues to be argued
3.1 Whether the application for leave to appeal should be granted, and in particular:
3.1.1 Whether the application raises any arguable point of law of general public importance which ought to be considered by this Court or any constitutional issues, or whether the appeal is based solely on an attack on the SCA’s application of the settled common law to its findings of fact?
3.1.2 Whether the appeal has any prospects of success?
3.2 Whether, if leave to appeal is granted, the appeal against the judgment and order of the SCA ought to be dismissed?
4. Estimated duration of the argument
4.1 It is estimated that argument by counsel for the applicant and respondent should last no longer than one day.
5. The relevant portions of the record
5.1 The relevant portions of the record appear from the respondent’s written submissions filed together with this note.
6. The summary of the respondent's argument
6.1 Both the SCA and the High Court found that Masstores was, by operating a general food supermarket at Capegate, trading in breach of Masstores’ lease agreement with Hyprop (the Masstores lease agreement). In doing so, Masstores acted unlawfully and intentionally deprived Pick n Pay of its entitlement to performance
3 by Hyprop in terms of Pick n Pay’s lease agreement with Hyprop (the Pick n Pay lease agreement). Masstores thus interfered in Pick n Pay’s contractual rights.
6.2 Pick n Pay’s cause of action falls within the established class of interference cases based on the intentional deprivation, by a third party, of the rights and benefits to which a contracting party would otherwise have obtained from performance under the contract.
6.3 The fact that Masstores conduct constitutes a breach of the Masstores lease agreement; and has resulted in Hyprop being in breach of the Pick n Pay lease agreement serves to strengthen Pick n Pay’s delictual claim.
6.4 The fact that the clause in the Masstores lease agreement breached by Masstores was included in that lease agreement at the instance of Masstores for the benefit of Pick n Pay and in recognition of the benefit which Masstores received from Pick n Pay’s presence as an anchor tenant at the Cape Gate shopping centre makes plain that Masstores conduct is both wrongful and actionable at the instance of Pick n Pay.
7. The list of authorities on which particular reliance will be placed in oral argument
7.1 The authorities are contained in Annexure A. Authorities on which particular reliance will be placed are starred.
David Unterhalter SC Max du Plessis Gavin Marriot Andreas Coutsoudis
Chambers 30 June 2016
