THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 644/18
In the matter between:
LIBERTY GROUP LIMITED

First Appellant
LIBERTY TWO DEGREES

Second Appellant
PARETO LIMITED

Third Appellant
JHI RETAIL (PTY) LTD

Fourth Appellant
EXCELLERATE BRAND
MANAGEMENT (PTY) LTD

Fifth Appellant
and

MALL SPACE MANAGEMENT CC t/a
MALL SPACE MANAGEMENT

Respondent

Neutral citation:
Liberty Group Ltd v Mall Space Management CC t/a Mall Space
Management (644/18) [2019] ZASCA 142 (1 October 2019)
Coram:
Leach, Tshiqi, Swain, Zondi and Mocumie JJA

Heard:

20 August 2019

Delivered:
1 October 2019

Summary:   Under the common law a mandate is in general terminable at the will of
the principal – notice of intention to terminate unnecessary – principles of Ubuntu and
fairness not the correct bases to determine propriety of termination of mandate – issues
of good faith, fairness and equity not applicable – against public policy to coerce a
principal into retaining individual as agent – unlawful competition not established –
requirements of final interdict not met.

___________________________________________________________________
ORDER
___________________________________________________________________

On appeal from: Gauteng Division of the High Court, Johannesburg (Shangisa AJ,
sitting as court of first instance):
The appeal is upheld with costs including costs of two counsel where employed.
The order of the high court is set aside and replaced by the following:
‘The application is dismissed with costs.’
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Zondi JA (Leach, Tshiqi, Swain and Mocumie concurring)
[1] Two issues arise in this appeal. The first, is whether the first to fourth appellants,
as principals, were obliged in terms of the contract of mandate they concluded with the
respondent to give the respondent six months’ notice before terminating its mandate
to manage the promotional mall space and exhibition courts so as to market, plan and
co-ordinate promotional events at their shopping centres. The second, is whether the
fifth appellant’s assumption of the respondent’s mandate in relation to the shopping
centres concerned, constituted unlawful competition.

[2] The issues arise from an application brought by the respondent against the first
to fourth appellants in the Gauteng Division of the High Court, Johannesburg (high
court) in which the respondent sought an order (a) directing the first to fourth appellants
to permit the respondent access to rental court space at the relevant shopping centres

in order to carry out its mandate; (b) interdicting the first to fourth appellants from
terminating the agreement concluded in April 2013 between the respondent and the
first to fourth appellants for a period of six months from the date of the order and (c)
restraining the fifth appellant from competing unlawfully with the respondent by
wrongfully interfering with the rights of the respondent in the marketing, planning and
co-ordinating of promotional events and exhibitions at the shopping centres concerned.

[3] The high court (Shangisa AJ), applying the constitutional values of Ubuntu and
fairness, granted the interdictory relief as sought by the respondent. The appeal to this
court is with the leave of that court.

[4] The issues must be considered against the following factual background. The
first appellant, Liberty Group Limited is the owner of Eastgate Shopping Mall, Liberty
Midlands Mall, Liberty Promenade Mall. It co-owns Sandton City with the third
appellant, Pareto Limited. The fourth appellant, JHI Retail (Pty) Ltd (JHI Retail) is the
authorised managing agent of Liberty Group Limited, Liberty Two Degrees and Pareto
Limited in respect of the commercial property portfolio within which the four relevant
malls fall. For convenience, I will refer to the first to fourth appellants collectively as
Liberty Group.

[5] Up until 4 September 2017 the respondent, Mall Space Management CC (Mall
Space) acted as an agent for the Liberty Group facilitating the conclusion of contracts
with the exhibitors for the rental of mall space or exhibition courts at the four shopping
centres for which it was paid commission.

[6] It is common cause that the parties never signed a written agreement to regulate
their contractual relationship. As it could be expected in a matter such as the present
one, in the absence of a written agreement regulating their contractual relationship, the
parties would give different versions regarding what the exact terms of the contract
were.  According to Mall Space it provided services for a number of years to Liberty
Group in accordance with the terms and conditions of the draft agreement which Mall
Space prepared during April 2013. In terms of the draft agreement Liberty Group
granted Mall Space the right to operate as an agent to hire and manage the

promotional mall space and exhibition courts at the relevant shopping centres at a fee.
Mall Space alleges that initially its responsibilities under the agreement included
invoicing the exhibitor and upon receipt of payment from the exhibitor, pay it over to
Liberty Group.

[7] Mall Space points out that this was the position up until May 2015 in relation to
the Eastgate Mall and March 2016 in relation to the Liberty Midlands Mall when the
invoicing function was taken over by the fifth appellant, Excellerate Brand Management
(Pty) Ltd (Excellerate). On 16 November 2016 Liberty Group and Pareto represented
by JHI Retail concluded a written marketing service level agreement in terms of which
Liberty Group and Pareto granted Excellerate the right from 1 January 2017, to operate
as an agent to rent and manage the promotional mall space and/or exhibition courts at
the relevant four shopping malls. The effect of this was that the invoicing function in
respect of contracts relating to all four shopping malls was taken over by Excellerate.

[8] Shortly before its contract was terminated, some of Mall Spaces’ employees left
its employ to join Excellerate after they were offered better employment prospects. Mall
Space contends that these developments and changes were not effected for
operational reasons, but were made in order to facilitate an unlawful competition
between it and Excellerate.

[9] Mall Space rejects Liberty Group and Excellarate’s suggestion that it failed to
account properly to Liberty Group for the rental income it received from the tenants
and that this conduct had anything to do with the reason for terminating its contract.
While Mall Space admits that as at the end of February 2017 it was indebted to Liberty
Group and Pareto in the amount of R566 274.76 and R3 634 491 respectively for
which it signed acknowledgements of debt, it, however, denies that this indebtedness
resulted because of its alleged poor management of the contract. Mall Space avers
that the source of its indebtedness was as a result of the inefficiency of the accounting
system used by JHI Retail, Liberty Group’s managing agent.

[10] It is common cause that on 29 August 2017 JHI Retail, on behalf of Liberty
Group, wrote a letter to Mall Space informing the latter that its services to lease rental
court space to tenants in the relevant shopping centres would no longer be required

with effect from 4 September 2017. In response to the termination notice, on 4
September 2017, Mall Space’s attorneys addressed a letter to JHI Retail in which they
contended that the termination of Mall Space’s services constituted summary
cancellation, ‘which is unconstitutional and bad in law’. The letter went further to state
that JHI Retail was indebted to Mall Space ‘for the unlawful cancellation in excess of
R2.5 million, and as such once quantified with certainty, we shall proceed against
yourself.’

[11] Aggrieved by the termination of its services, on 11 September 2017, Mall Space
launched an application against Liberty Group and Excellerate in the high court, in
which it sought interdictory relief, the terms of which have been set out in para 2 above.

[12] The essential bases of Mall Space’s claim against Liberty Group are first, that
as a result of termination of its mandate it was prevented from performing functions
and earning commission on the contracts it facilitated to the value of R5 026 749.
Secondly, Mall Space contended that the deprivation by Liberty Group of its right to
contract for rental space at the four shopping centres impacted significantly upon its
income and the scope of its business.

[13] Mall Space submitted that should the interdictory relief not be granted, it would
not obtain legal redress in the ordinary course of litigation. Mall Space further
contended that it had the right to be protected from the unlawful competition it faced
from Excellerate. Lastly, Mall Space contended that it was a tacit term, alternatively an
implied term of the agreement between it and Liberty Group that, based on trade
usage, any termination of the agreement between the parties would require at least a
six month notice period. Mall Space also contended that the constitutional values of
Ubuntu and fairness required the Liberty Group to grant it six months’ notice of
termination of the mandate.

[14] The allegations underpinning Mall Space’s application against Excellerate are
set out in para 25 of its founding affidavit as follows:
‘25.
In terminating the right of the applicant at the four shopping centres as well as
repudiating the agreement, the respondents are facilitating Excellerate in going into unlawful

competition with the applicant. The entire stratagem which has been employed by the
respondents is as follows:
25.1
The respondents have cancelled the contract between them and the applicant and
have denied the applicant the right to utilise the exhibition space in the four shopping centres.
25.2
Excellerate, which performs precisely the same functions as the applicant has now
spring boarded into the four shopping centres which were previously utilised by the applicant
and in so doing has capitalised on the model employed by the applicant in facilitating the rental
of the space and will now benefit from placing exhibitors in the same areas which were
previously utilised by the applicant….’

[15] Liberty Group opposed the application. They denied that the matter was urgent.
Liberty Group contended that Mall Space’s reliance on the principles of Ubuntu and
good faith was fundamentally unsound as their propositions do not reflect the principles
of the law of contract. They averred that the mandate given to Mall Space and to which
the common law applies, is revocable. Liberty Group argued that they, as principals,
were free to terminate Mall Space’s authority as their agent if they wished to do so,
without first having to give any notice to Mall Space. Liberty Group accordingly
submitted that Mall Space’s application had to be dismissed as it had failed to meet
the requirements for the final interdict.

[16] Excellerate denied that it competed unlawfully with Mall Space. It contended
that it was appointed to take over the roles and responsibilities of Mall Space pursuant
to the marketing service level agreement it concluded with Liberty Group. It pointed to
the fact that at the time of the conclusion of the relevant marketing service level
agreement, Mall Space enjoyed no exclusive right to offer the relevant ‘mall space
intermediary/agency service’.

[17] The high court correctly found that, on the common cause facts, the parties had
concluded a contract of mandate. Pursuant to this finding the high court then
formulated the issue before it to be whether Liberty Group were entitled to give Mall
Space five days’ notice of termination. In other words, the issue was whether Mall
Space was entitled to a reasonable notice period of six months which it contended for.

[18] Relying on Mohamed’s Leisure Holdings (Pty) Ltd1 and Nyandeni Local
Municipality,2 the high court stated that the matter cried out for the application of the
constitutional values of Ubuntu and fairness. Citing a passage in para 71 of the
judgment of the Constitutional Court in Everfresh Market Virginia (Pty) Ltd,3 the high
court held that ‘in the development of the common law, it is highly desirable and in fact,
necessary to infuse the law of contract with constitutional values, including values of
Ubuntu which inspire much of our constitutional compact’.

[19] The high court rejected Liberty Group’s contention that Mall Space had raised
the constitutional values of Ubuntu and fairness as mere distractions. It found that in
the circumstances of the contract between the parties, the notice period of five days
was not only unreasonable, but offended the constitutional values of fairness, Ubuntu
and dignity. In coming to that conclusion the high court had regard to the fact that the
parties had a long standing contractual relationship and that Mall Space had a number
of employees who were likely to be affected by the termination of the contract.

[20] As regards the case of unlawful competition against Excellerate, the high court
held that the assumption by Excellerate of some of Mall Space’s functions and its
employment of some of Mall Space’s employees before its mandate was terminated,
constituted an unlawful competition. This finding by the high court also formed the basis
of its conclusion that the matter was urgent.

[21] The high court granted the relief as sought by Mall Space in the notice of motion,
the terms of which are set out in para [2] of this judgment. The high court’s findings
and conclusions are challenged both by Liberty Group and Excellerate in their grounds
of appeal. The points they raised in their grounds of appeal mirror the defences they
advanced in the high court in opposing Mall Space’s application.

[22] The law in regard to the grant of a final interdict is settled. An applicant for an
interdict must show the clear right; an injury actually committed or reasonably

1 Mohamed’s Leisure Holdings (Pty) Ltd v Southern Sun Hotel Interests (Pty) Ltd 2017 (4) SA 243 (GJ).
2 Nyandeni Local Municipality v Hlazo 2010 (4) SA 261 (ECM).
3 Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd [2011] ZACC 30; 2012 (1) SA 256
(CC).

apprehended; and the absence of similar protection by any other remedy.4 It was held
by this court in Hotz v University of Cape Town5 that once the applicant has established
the three requisite elements for the grant of an interdict the scope, if any, for refusing
relief is limited and that there is no general discretion to refuse relief.

[23] In argument before us counsel for Liberty Group submitted that the high court
erred in granting Mall Space interdictory relief. He correctly pointed out that the
relationship between the parties was one of agent and principal. Relying on the
judgment of this court in Stupel & Berman Inc6 he submitted that Liberty Group, as
principals, were free to terminate Mall Space’s authority if they wished to do so, without
notice to Mall Space. He argued that the mandate having been revoked, there was no
basis for Mall Space’s application; and that being the case it was not open to the high
court to apply the principle of Ubuntu, which is not a self-standing rule, to create a basis
for Mall Space’s application to succeed.

[24] It was not disputed by Mall Space that the contract between it and Liberty Group
was one of mandate in terms of which Mall Space facilitated the conclusion of the
agreements for the hire of the exhibition courts at the request or on the instruction of
Liberty Group.7 It was also accepted by Mall Space that under the common law Liberty
Group as principals, were free to terminate their mandate.8

[25] Mall Space’s submission was, however, that since the agreement did not
provide for a notice to be given for its termination, it was subject to an implied or tacit
term that it was terminable on reasonable notice, which Mall Space contended would
require at least six months’ notice. In other words, Mall Space’s argument was that it
had a right to be given six months’ notice before its contract was terminated and this
is the right which it sought to protect by way of an interdict. This was so, it was argued,
because it took six months to finalise the entire process. As counsel for Mall Space
was unable to point to any authority from which such a term was to be implied as a

4 Setlogelo v Setlogelo 1914 AD 221 at 227. These requisites have been restated by this court, most
recently in Hotz & others v University of Cape Town (730/2016) [2016] ZASCA 159; [2016] 4 All SA 723
(SCA); 2017 (2) SA 485 (SCA) (20 October 2016).
5 Ibid fn 4.
6 Stupel & Berman Inc v Rodel Financial Services (Pty) Ltd [2015] ZASCA 1; 2015 (3) SA 36 (SCA).
7 LAWSA vol 17(1) 2 ed para 2.
8 Ibid fn 4 para 17; A J Kerr The Law of Agency 4ed p 194.

matter of law or trade usage, he contended that the implementation of the cancellation
or termination of the mandate in terms of the common law principle must be infused
with the constitutional values of Ubuntu, fairness and human dignity which imposed an
obligation on Liberty Group to act reasonably when it decided to terminate the
mandate. Counsel for Mall Space relied on Mohamed’s Leisure Holdings9 as authority
for this proposition. He argued that Liberty Group acted in breach of these values when
they terminated Mall Space’s mandate by giving it five days’ notice.

[26] In Mohamed’s Leisure Holdings the owner and lessor in terms of a written lease
agreement, had applied in the Gauteng Local Division of the High Court, Johannesburg
for the eviction of its lessee, Southern Sun Hotel Interests (Pty) Ltd, from the property.
The eviction was sought on the basis that Southern Sun Hotel had breached the
agreement by failing to make payment of the rental on due date. Although the high
court accepted that Southern Sun Hotel had breached the agreement, it declined to
grant an eviction order on the basis of the reasoning that the implementation of the
cancellation clause would be manifestly unreasonable, unfair and offend the public
policy. Applying the value of Ubuntu to the facts of the matter, the high court concluded
that an order for the eviction of Southern Sun Hotel would offend the values of the
Constitution and dismissed the application.

[27] The high court’s judgment in Mohamed’s Leisure Holdings was overturned on
appeal by this court.10 This court pointed out at para 28, that the terms of the contract
were not on their face inconsistent with public policy, the relative position of the parties
was one of bargaining equality and the parties could have negotiated a clause in terms
of which the respondent was given notice to remedy a breach before the contract was
cancelled. Timeous performance had not been impossible, because the respondent
could have diarised well ahead of time to ensure the important monthly payment was
punctually made. Against this background it could not be against public policy to apply
the principle of pacta sunt servanda. This court then added the following at para 30:
‘The fact that a term in a contract is unfair or may operate harshly does not by itself lead to the
conclusion that it offends the values of the Constitution or is against public policy. In some

9 Ibid fn 1.
10 Mohamed’s Leisure Holdings (Pty) Ltd v Southern Sun Hotel Interests (Pty) Ltd [2017] ZASCA 176;
2018 (2) SA 314 (SCA).

instances the constitutional values of equality and dignity may prove to be decisive where the
issue of the party’s relative power is an issue. There is no evidence that the respondent’s
constitutional rights to dignity and equality were infringed. It was impermissible for the high
court to develop the common law of contract by infusing the spirit of Ubuntu and good faith so
as to invalidate the term or clause in question.’

[28] Similar sentiments were expressed by this court in Roazar CC.11 The issue that
formed the focus of the proceedings in that case was whether the respondent was
correct in arguing that the agreement imposed upon the parties a binding duty to
negotiate in good faith. What stood in the way of such a conclusion was the established
principle that an agreement that the parties would negotiate to conclude another
agreement was not enforceable, unless there existed a deadlock breaking mechanism.
The SCA held that no such mechanism existed in that case. The respondent, however,
relying on s 39(2) of the Constitution which called for the infusion of contract law with
constitutional principles like Ubuntu, argued that the common law should be developed
to recognise the validity of an agreement to negotiate, even where there existed no
deadlock breaking mechanism. It was held that the facts in that case demonstrated the
complications of developing the common law to compel parties to negotiate in good
faith. It would be against public policy to coerce a lessor to conclude an agreement
with a tenant who he did not want to have as tenant any longer. It then held at para 24
that it was difficult to conceive how a court, in a purely business transaction, could rely
on ‘Ubuntu’ to ‘import a term that was not intended by the parties to deny the other
party a right to rely on the terms of the contract to terminate it’.

[29] Aware of the problem posed to his case by the Mohamed’s Leisure Holdings
and Roazar CC decisions, counsel for Mall Space submitted that the present case was
significantly distinguishable, because unlike in Mohamed’s Leisure Holdings and
Roazar CC, this court is not called upon to determine whether a clause in an agreement
should or should not be enforced. In this appeal, he argued, the court is not concerned
with such a question, but whether within the particular circumstances of the facts of
this appeal, five days’ notice was objectively reasonable in order for it to be valid and
whether the effect is subjectively reasonable in the particular circumstances. I

11 Roazar CC v The Falls Supermarket CC [2017] ZASCA 166; 2018 (3) SA 76 (SCA).

disagree. What these two cases establish is the principle that the concepts of good
faith, justice, reasonableness and fairness are not self-standing rules which can justify
the avoidance of performance under a contract. They are underlying values that are
given expression through existing rules of law.

[30] In South African Forestry Co Ltd12 para 27, Brand JA puts it this way:
‘In these cases it was held by this Court that, although abstract values such as good faith,
reasonableness and fairness are fundamental to our law of contract, they do not constitute
independent substantive rules that courts can employ to intervene in contractual relationships.
These abstract values perform creative, informative and controlling functions through
established rules of the law of contract. They cannot be acted upon by the courts directly.
Acceptance of the notion that judges can refuse to enforce a contractual provision merely
because it offends their personal sense of fairness and equity will give rise to legal and
commercial uncertainty. After all, it has been said that fairness and justice, like beauty, often
lie in the eye of the beholder. In addition, it was held in Brisley and Afrox Healthcare that ─
within the protective limits of public policy that the courts have carefully developed, and
consequent judicial control of contractual performance and enforcement ─ constitutional
values such as dignity, equality and freedom require that courts approach their task of striking
down or declining to enforce contracts that parties have freely concluded, with perceptive
restraint.’

[31] In addition, writing in the South African Law Journal,13 Brand JA said the
following at 89:
‘… imprecise and nebulous statements about the role of good faith, fairness and equity, which
would permit idiosyncratic decision-making on the basis of what a particular judge regards as
fair and equitable, are dangerous. They lead to uncertainty and a dramatic increase in often
pointless litigation and unnecessary appeals. Palm-tree justice cannot serve as a substitute
for the application of established principles of contract law.’

It follows on the principles laid down by this court in Mohamed's Leisure Holdings, that
the high court erred in this matter.

12 South African Forestry Co Ltd v York Timbers Ltd 2005 (3) SA 323 (SCA).
13 Juta 2009 Volume 126 p 71 ‘The role of good faith, equity and fairness in the South African Law of
Contract: The influence of the common law and the Constitution’.

[32] Liberty Group terminated their mandate for a good reason. There was no
unlawful infringement of Mall Space’s rights. The evidence established that Mall Space
failed properly to account to Liberty Group for the rental income it received from the
tenants. Mall Space was substantially in arrears with its payment of the monies due to
them as its principals and this was not disputed. In fact, it signed acknowledgements
of debt. In my view, Liberty Group was quite entitled to terminate their mandate at any
time on giving notice to that effect to Mall Space. I do not think that any question on
length of notice arises. The mandate did not impose an obligation on Liberty Group to
give Mall Space six months’ notice if they wanted to terminate it. Mall Space has not
shown that it had the right to be given six months’ notice before its contract could be
terminated. In these circumstances, it was not competent for the high court to grant an
order interdicting Liberty Group from cancelling the contract. In any event,  if Mall
Space had incurred any expense or suffered any damage or was entitled to be paid
commission before the revocation it was entitled to be indemnified because its right
would have arisen while the mandate existed14 which therefore means that Mall Space
was not without an alternative remedy. I am not satisfied that that alternative remedy
would not have afforded Mall Space a remedy that would give it similar protection.

[33] Mall Space’s case against Excellerate was based on unlawful competition. This
court held in Schultz15 that, as a general rule, every person is entitled freely to carry on
his trade or business in competition with his rivals. But the competition must remain
within lawful bounds. If it is carried on unlawfully in the sense that it involves a wrongful
interference with another’s rights as a trader that constitutes an injuria for which the
Aquilian action lies if it has directly resulted in loss.

[34] Counsel for Excellerate, while associating himself with the submissions made
by counsel for Liberty Group, pointed out that the high court erred in finding that
Excellerate’s assumption of the roles and responsibilities which were provided by Mall
Space to Liberty Group constituted an unlawful competition. This was so, he argued,
because, first, the contract which it had with Liberty Group did not grant it an exclusive
right. Secondly, Excellerate took over from Mall Space, pursuant to the service level

14 Kerr The Law of Agency at p 195.
15 Schultz v Butt 1986 (3) AD 667 at 678F-G; [1986] 2 All SA 403 (A) at 407.

marketing agreement it concluded with Liberty Group, because they were not satisfied
with the quality of services they received from Mall Space. The latter failed to account
properly to Liberty Group as its principals, for the rental income Mall Space received
from tenants, who hired space at their shopping malls.

[35] In order to succeed with a final interdict against Excellerate, Mall Space had to
show that the contractual right it obtained from Liberty Group protects an interest that
is also enforceable against Excellerate with which it has no contractual relationship;
that Excellerate unlawfully infringed or threatened to infringe that right and that there
was no adequate alternative remedy. In my view, Mall Space failed to establish a clear
right. First, the mandate it obtained from Liberty Group did not give it an exclusive right
to operate at the relevant shopping malls and it claims no entitlement to exclusivity.
Secondly, Excellerate was duly appointed by Liberty Group to assume the functions
and responsibilities which were hitherto performed by Mall Space after termination of
its mandate. There is no ground upon which the alleged interference with Mall Space’s
rights can be said to be unlawful. And I do not know how an interdict can be granted
where there is no actual or threatened unlawfulness in the infringement of a right.

[36] It must be emphasised that in the present case we are not dealing with a term
of a contract which is alleged to be contrary to good faith, fairness and equity. We are
dealing with a rule of the common law, namely, that a principal is entitled to revoke a
mandate of agency. It would be against public policy, to coerce a principal into retaining
an individual as his agent, when he no longer wishes to retain him as such. If the
termination of the mandate has prejudiced the agent his remedy lies in a claim for
damages and not in an order compelling the principal to retain him as his agent in the
future.

[37] In this case, Liberty Group, as principals, terminated their mandate as they were
not happy with the quality of services they received from Mall Space. There was no
obligation on them to have given Mall Space six months’ notice before doing so. They
had a valid reason to cancel the mandate. Liberty Group, as principals, were entitled
to terminate their mandate when it became clear to them that Mall Space could not
deliver on their mandate. Mall Space failed to account properly to them and they could
not be expected to wait for the worst to happen before taking action to protect their

own financial interests, which had been placed in jeopardy by Mall Space’s
mismanagement of the contract. The high court erred in applying directly the principle
of Ubuntu to the law of contract as a basis to grant the relief. The high court erred in
relying on the high court’s judgment in Mohamed’s Leisure Holdings16 as the basis for
its authority to deviate from applying the common law principle that the contract of
mandate is terminable at the will of the principal. That judgment is no longer authority
as it was subsequently overruled by this court as what was stated there do not reflect
the principles of our law as they stand currently.

[38] In relation to Mall Space’s cause of action based on unlawful competition, that
claim should have failed because there was no case made out for it. Excellerate did
not act wrongfully in assuming some of the roles and responsibilities which were
hitherto performed by Mall Space in terms of the mandate. Mall Space’s mandate was
lawfully terminated and there was no obligation upon the principals to have given Mall
Space six months’ notice period before terminating their mandate.

[39] In the result it is ordered:
The appeal is upheld with costs including costs of two counsel where employed.
The order of the high court is set aside and replaced by the following:
‘The application is dismissed with costs.’

___________________
D H Zondi
Judge of Appeal

16 Ibid fn 1.

Appearances
For first to fourth appellants:

H C Bothma (with him M Muchenje)
Instructed by:

Webber Wentzel, Johannesburg

Symington & De Kok, Bloemfontein
For fifth appellant:

M Nowitz
Instructed by:

Schindlers Attorneys, Johannesburg

Webbers, Bloemfontein
For respondent:

S Cohen
Instructed by:

Dempster McKinnon Inc, Sandton

Phatshoane Henney Attorneys, Bloemfontein