The Crown Restaurant CC v Gold Reef City Theme Park (Pty) Ltd

The applicant, The Crown Restaurant CC, leased commercial premises from the respondent, Gold Reef City Theme Park (Pty) Ltd, in terms of a written lease agreement. The applicant fell into substantial rental arrears, at one stage owing at least R71 000. The respondent cancelled the lease and applied to the Johannesburg High Court for ejectment and payment of R8 743.82. The applicant opposed the application, alleging that the respondent had verbally granted an indulgence allowing time to make proposals to settle the arrears, which allegedly amounted to a waiver of the right to cancel. The respondent denied any such verbal agreement and relied on a non-variation clause requiring written amendments, as well as a clause stating that indulgences did not waive contractual rights. The High Court upheld the respondent’s reliance on these clauses and granted the relief sought. Leave to appeal was refused by the Supreme Court of Appeal. The applicant then approached the Constitutional Court seeking leave to appeal, raising new constitutional arguments for the first time.

The application for leave to appeal was dismissed.

The case reinforces the Constitutional Court’s consistent stance that it will not ordinarily act as a court of first and last instance, especially where parties seek to raise new constitutional or common-law development arguments for the first time. It underscores the importance of properly identifying and pleading constitutional issues at the outset of litigation and confirms the continued authority of non-variation and non-waiver clauses in contract law unless properly challenged in appropriate forums.