Notes: Commodus usus, exclusive trade rights and public policy in lease: Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd

Author: Anthea-lee September-Van Huffel

ISSN: 1996-2177
Affiliations: Lecturer, University of the Free State
Source: South African Law Journal, Volume 139 Issue 2, p. 286-299


In Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC)  the Constitutional Court found that the personal right of exclusive trade in the lease  contract was contrary to public policy and not worthy of protection. To do so, the court  relied on the ‘competition principle’ — that the competitor who delivers the best or  fairest (most reasonable) performance must achieve victory, while the one rendering  the weakest (worst) performance must suffer defeat. The court was of the view that,  as a general proposition, third parties have no legal duty not to infringe contractually  derived exclusive rights to trade. According to the majority, exclusive trading rights  make the competitive field uneven. The court emphasised that the boni mores must be  understood in terms of the values of the Constitution, and that the values contained  in the Bill of Rights are a crucial tool in the development of the common law.  Although the majority judgment focused on the delict of unlawful third-party  interference in a contractual relationship and the nature of interdicts, the judgment  relates also to the question of the personal right to commodus usus in a lease contract,  and the remedies available to vindicate this right. The intersection of these issues is  investigated in this note.