OK Bazaars 1929 Ltd v Cash-In CC (320/91) [1993] ZASCA 204; 1994 (2) SA 347 (AD); [1994] 3 All SA 570 (AD) (2 December 1993)

OK Bazaars 1929 Ltd v Cash-In CC (320/91) [1993] ZASCA 204; 1994 (2) SA 347 (AD); [1994] 3 All SA 570 (AD) (2 December 1993)

The Supreme Court of Appeal held that clause 3.1 of the lease required the appellant to have faithfully carried out all terms and conditions throughout the lease period, not merely to be free of subsisting breaches at expiry. The persistent failure by the appellant to deliver auditor's certificates timeously...

Source-derived case information.

Citation
[1993] ZASCA 204
Parties
Appellant: OK Bazaars (1929) Ltd; Respondent: Cash-In CC
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
2 December 1993
Case Number
320/91
Procedural Posture
Civil Appeal / Appeal From the Cape of Good Hope Provincial Division
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Hoexter, Vivier, Kumleben, Nienaber, Kriegler
Legal Topics
Lease Renewal, Breach of Contract, Onus of Proof, Interpretation of Contractual Terms
Commercial and Corporate Land and Property Lease Renewal Breach of Contract Onus of Proof Interpretation of Contractual Terms

Source-derived case record

Summary, issues, holding and outcome

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Parties

OK Bazaars (1929) Ltd

Appellant

Cash-In CC

Respondent

Procedural Posture

Civil Appeal / Appeal From the Cape of Good Hope Provincial Division

Legal Issues

  1. 1 Whether 'spent breaches' of the lease preclude the right of renewal under clause 3.1.
  2. 2 Whether only subsisting breaches or also past breaches are relevant to the right of renewal.
  3. 3 Whether the breaches committed by the appellant were material enough to deny renewal.

Ratio Decidendi

The Supreme Court of Appeal held that clause 3.1 of the lease required the appellant to have faithfully carried out all terms and conditions throughout the lease period, not merely to be free of subsisting breaches at expiry. The persistent failure by the appellant to deliver auditor's certificates timeously constituted a serious breach, despite the absence of actual financial loss to the respondent. The court rejected the appellant's argument that only material or subsisting breaches should preclude renewal, and that 'faithfully' meant 'reasonably'. The court found that the renewal clause intended a prospective review of the lessee's conduct over the entire lease period, and that the...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs consequent upon the employment of two counsel.