Exclusive spot stays
Passengers at OR Tambo International can continue to get their reading fix from Exclusive Books, at least for the present: the company has successfully fended off an eviction action by the Airports Company SA (Acsa).
Acsa had asked the court to order the bookstore to vacate its premises after Exclusive Books failed to win a new tender for space in SA’s largest airport. The parties had a “month-to-month” lease agreement. After the bookstore lost the tender, Acsa gave notice. When Exclusive Books launched a judicial review of the tender outcome and refused to quit the premises, Acsa went to court to force the issue.
Exclusive Books argued that the month-to-month agreement included a “tacit term” — a selfevident condition, not spelled out in the contract — that the store would stay until the end of a valid tender process for the space. At that stage, if Exclusive Books was not successful, Acsa could give notice.
However, said Exclusive, since it contested the validity of the process and the outcome and had asked for a judicial review, the tacit term had not been completed. This meant they did not have to leave the premises as ordered by Acsa.
The court found there was indeed such a “tacit term” to the lease: it would have made no sense if the bookstore quit before a tender was finalised.
As for the judicial review — yet to take place — the court found that while Exclusive would raise challenges to the validity of the tender process during the review hearing, there were, on the face of it, aspects of the process that were not lawful “for the purposes of the (eviction) proceedings”.
The court found three problems with the tender. A clause in the tender documents provided that in “exceptional circumstances” noncompliance with mandatory requirements of the bid could be excused. However, Exclusive Books had not submitted a tax clearance certificate and Acsa disqualified the bid on these grounds without further inquiry. The explanation put up by Exclusive “suggested strongly” that the aim of tax compliance “would not be subverted” if the award went to them.
Questions of clarification should also have been asked about a confusing financial table put up by the company. Instead the bid was rejected over what was “an obvious error”.
Key information — that there would be space in the international departures area for one bookstore, instead of two at present — was known to successful bidder Amger Retailing but not to Exclusive Books. If Exclusive had been privy to this it would have affected the financial proposals in its bid.
Given these flaws, Acsa was unable to prove a “lawful tender process”, a prior condition in terms of the tacit term before Exclusive could be given notice to leave. Acsa’s eviction application was dismissed with costs.
All the parties now await the judicial review.