Walmart-owned retailer Masstores took its battle with Pick n Pay Retailers to the Constitutional Court on Tuesday, says a BDlive report. The fight is over whether Pick n Pay is entitled to prevent Masstores’ Game from selling fresh foods in its store at the Cape Gate shopping centre, by enforcing an exclusive right to trade as a supermarket.

In terms of a lease agreement with Pick n Pay, the owner of the centre agreed only Pick n Pay and Checkers would be allowed to conduct the business of a supermarket or to sell fresh food products. In terms of Masstores' lease agreement, Game was allowed to sell non-perishable food but could not ‘trade as a general food supermarket’.

However, in 2013 Game expanded its range to fresh produce and fresh-packaged meat and poultry. Pick n Pay then went to court, and as a result Game was prevented from selling fresh food at the mall. An appeal to the SCA failed. But in the Constitutional Court, Masstores’ Fanie Cilliers SC argued that the law did not allow Pick n Pay to enforce its contract with the mall owner by suing its competitor.

Cilliers said Pick n Pay had to show that Game had done something unlawful. But Pick n Pay's David Unterhalter SC said all Pick n Pay needed to show was that by selling food, Game had usurped a role the owner had exclusively given to Pick n Pay. Unterhalter said it was true that Pick n Pay could have enforced its rights by suing the landlord, but this did not exclude it from also suing Masstores. The report notes judgment was reserved.

Full BDlive report