Crown Restaurant CC v Gold Reef City Theme Park (Pty) Ltd (CCT05/07) [2007] ZACC 2; 2007 (5) BCLR 453 (CC); 2008 (4) SA 16 (CC) (6 March 2007)

Crown Restaurant CC v Gold Reef City Theme Park (Pty) Ltd (CCT05/07) [2007] ZACC 2; 2007 (5) BCLR 453 (CC); 2008 (4) SA 16 (CC) (6 March 2007)

The Constitutional Court held that the applicant failed to raise constitutional issues before the lower courts and that the High Court was only required to address the waiver defence, which it did correctly. The applicant's attempt to reintroduce the exceptio doli generalis was rejected, as this defence is not part of South African law. The Court emphasized that it is undesirable for it to act as a court of first and last instance, especially where the development of the common law is concerned and where lower courts have not been called upon to address constitutional issues. The application for leave to appeal was dismissed as it was not in the interests of justice to grant it.

Citation
[2007] ZACC 2
Parties
Applicant: The Crown Restaurant CC; Respondent: Gold Reef City Theme Park (Pty) Ltd
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
6 March 2007
Case Number
CCT05/07
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Constitutional Court After Refusal by the Supreme Court of Appeal.
Outcome
Application for leave to appeal dismissed.
Judges
Moseneke, Madala, Mokgoro, Navsa, Ngcobo, Nkabinde, O'Regan, Sachs, Skweyiya, Van der Westhuizen
Legal Topics
Lease Agreement, Non Variation Clause, Waiver of Rights, Exceptio Doli Generalis, Arbitrary Deprivation of Property, Bill of Rights Limitation
Commercial and Corporate Civil Procedure Constitutional Law Lease Agreement Non Variation Clause Waiver of Rights Exceptio Doli Generalis Arbitrary Deprivation of Property +1 more

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Parties

The Crown Restaurant CC

Applicant

Gold Reef City Theme Park (Pty) Ltd

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Constitutional Court After Refusal by the Supreme Court of Appeal.

Legal Issues

  1. 1 Whether the applicant is entitled to leave to appeal to the Constitutional Court.
  2. 2 Whether the exceptio doli generalis should be reintroduced as a defence in South African contract law.
  3. 3 Whether the cancellation of the lease agreement constituted an arbitrary deprivation of property or affected the applicant's dignity.

Ratio Decidendi

The Constitutional Court held that the applicant failed to raise constitutional issues before the lower courts and that the High Court was only required to address the waiver defence, which it did correctly. The applicant's attempt to reintroduce the exceptio doli generalis was rejected, as this defence is not part of South African law. The Court emphasized that it is undesirable for it to act as a court of first and last instance, especially where the development of the common law is concerned and where lower courts have not been called upon to address constitutional issues. The application for leave to appeal was dismissed as it was not in the interests of justice to grant it.

Court Disposition

Application for leave to appeal dismissed.

Orders

  • The application for leave to appeal is dismissed.