Sunday Times

Massmart wins ConCourt bun fight over leases that limit trade

- PALESA VUYOLWETHU TSHANDU

MASSMART’S plan to sell fresh food in its Game stores gained impetus on Friday when the company won an appeal at the Constituti­onal Court against a 2014 interdict preventing it from doing so.

Pick n Pay had argued that its lease agreement with Hyprop Investment­s, which owns CapeGate shopping centre in Brackenfel­l, Cape Town, prevented Game from operating as a general food supermarke­t.

Massmart’s introducti­on of fresh and non-perishable food in Game, which is traditiona­lly known for selling domestic electrical appliances, is expected to boost the Walmart-owned retailer’s revenues and optimise the use of space in Game stores in shopping centres nationwide.

“This is an important victory in our effort to undo the historical reliance that entrenched grocery retailers place on leaseexclu­sivity clauses to limit competitio­n in shopping malls,” said Massmart communicat­ion manager Refilwe Boikanyo.

“The judgment will significan­tly degrade the ability of entrenched

This creates a compelling context as we take our fight to the Competitio­n Tribunal

grocery retailers to rely on contractua­l and delict arguments to protect their leaseexclu­sivity arrangemen­ts.”

In 2014, in a ruling handed down in the High Court in Pretoria, Judge Johan Louw said Pick n Pay was entitled to a final interdict against Massmart because a clause in its lease prevented Game from combining its general merchandis­e business with the business of a general food supermarke­t.

Pick n Pay executive David North said the company would review the Constituti­onal Court ruling.

In 2014, Massmart lodged a complaint with the Competitio­n Tribunal claiming that its efforts to introduce food for sale in its Game stores had been hindered by agreements between landlords and anchor tenants such as Pick n Pay, Shoprite and Spar.

“[The ruling] creates a compelling context as we take our fight for free and fair competitio­n in the grocery sector to the Competitio­n Tribunal,” Boikanyo said.

In an analyst presentati­on this month, Massmart said the total fresh food market is worth R84.7billion, with 10% year-on-year growth.

Peter Takaendesa, a portfolio manager at Mergence Investment Managers, said Massmart could devote less space to electrical goods, but whether that would be much more profitable was questionab­le.

By the end of June, 82 of 139 Game stores offered fresh food.

Massmart’s shares were largely flat at R111.59 by the close of trade on Friday.

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