At common-law a lessee or a sub-lessee has no right to question the lessor or sub-lessor’s right to occupy property.

The Constitutional Court was asked to develop the common-law in Mighty Solutions CC t/a Orlando Service Station v Engen Petroleum Ltd to require the lessor to establish its independent title to the property when claiming an ejection in a commercial lease (it did not have to deal with the situation whether a lessee can rely on a defence that the lessor lacks valid title in circumstances where the lessee asserts its own independent title to the premises. That question was left open).

It found on the facts that the common-law did not need to be developed.

The judgment contains a very useful analysis and review of when a court is allowed or obliged to develop the common-law as required by section 39(2) of the Constitution.

The court said that having regard to the duty to develop the common-law to accord with the Bill of Rights, caution is called for. While it is tempting to regard precedents from the pre-democratic era with suspicion, the mere fact that common-law principles are sourced from pre-constitutional case law is not always relevant and age is not necessarily a reason to change.

It is not the case under our constitutional dispensation that all the principles of law which have, to date, governed our courts are to be ignored. Those principles contain much of lasting value.

Fundamental changes to the fabric of the common-law are usually more appropriately made by way of legislation.

Legal certainty is essential for the rule of law which in itself is a constitutional value.

The cases and bases on which the common-law has been developed are part and parcel of an incremental development of the common-law on a case by case basis. Fundamental changes to the fabric of the common-law and customary law are usually more appropriately made by way of legislation.

The attack by the lessee in the present case took aim at the heart of the common-law of lease and a rule which was so entrenched that it was a natural incident of all contracts of lease. There was no attempt by the lessee to establish that the relevant contractual terms were contrary to public policy.

The court declined to alter the implied term and to change the contractual relationship retrospectively. This would convert the contract to terms that the parties might never have agreed to.