The operators of Cape Town's Garden Court hotel will turn to the Constitutional Court to avoid eviction, TimesLIVE reports. The 292-room hotel, operated by Tsogo Sun, has been ordered by the SCA to vacate the premises in Woodstock by 31 March for failure to pay its monthly rent of R694 585 in 2014.

The eviction clause was initiated when Tsogo Sun, which leases the building from owner Mohammed Rafik, failed to pay rent on time for a second time. After the first late payment, Rafik had warned the hotel group that a second late payment would result in eviction, a full Bench of the SCA heard.

Tsogo Sun argued that the late payment was Nedbank's fault, and challenged the eviction in the Gauteng High Court (Johannesburg). But the High Court's granting of the application to avoid eviction was wrong, the SCA ruled.

Judge Rammaka Mathopo said it was impermissible for the High Court to develop the common law of contract by 'infusing the spirit of ubuntu and good faith'. Tsogo's legal team said the eviction clause should be interpreted flexibly and in the spirit of good faith, ubuntu, fairness and simple justice enshrined in the Bill of Rights.

They accused Rafik of snatching at a bargain at the slightest contravention. Mathopo found this disingenuous, saying Rafik had warned Tsogo after the first contravention that a second would trigger the eviction clause. 'It would be untenable to relax the maxim pacta sunt servanda in this case because that would be tantamount to the court making the agreement for the parties,' said Mathopo.

Full TimesLIVE report