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[2011] ZACC 30
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Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd (CCT 105/10) [2011] ZACC 30; 2012 (1) SA 256 (CC); 2012 (3) BCLR 219 (CC) (17 November 2011)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 105/10
[2011] ZACC
30
In the matter between:
EVERFRESH MARKET VIRGINIA (PTY) LIMITED
….............................
Applicant
and
SHOPRITE CHECKERS (PTY) LIMITED
….............................................
Respondent
Heard on : 10 May 2011
Decided on : 17 November 2011
JUDGMENT
YACOOB J (Froneman J, Mogoeng J and Mthiyane AJ concurring):
Introduction
This
application for leave to appeal requires us to consider the
circumstances in which this Court should intervene to infuse
the law
of contract with constitutional values. The development of the
common law of contract in the light of the spirit, purport
and
objects of the Bill of Rights in our Constitution
1
was not directly raised by the applicant either in the KwaZulu-Natal
High Court, Pietermaritzburg (High Court) or in the Supreme
Court of
Appeal. It is directly raised for the first time in this Court and
we must decide the constitutionally appropriate way
of managing the
case before us. And we must do so by determining the requirements of
the interests of justice.
The
genesis of the application is an ejectment claim by the respondent,
Shoprite Checkers (Pty) Limited (Shoprite) against the
applicant,
Everfresh Market Virginia (Pty) Limited
2
(Everfresh). The ejectment application has its roots in an agreement
of lease between Everfresh and Shoprite’s predecessor
in
title
3
as lessor. Shoprite bought the property commonly known as the
Virginia Shopping Centre,
4
a portion of which was the subject of the lease, from the original
lessor during the currency of the lease. Shoprite therefore
became
bound by the lease. It effectively became Everfresh’s lessor.
5
The
lease was for five years from 1 April 2004 to 31 March 2009. Clause
3 provides:
“
Provided
that the Lessee has faithfully and timeously fulfilled and performed
all its obligations under and in terms of this Lease,
the Lessee
shall have the right to renew same for a further period of four years
and eleven months commencing on 1
st
April 2009, such renewal to be upon the same terms and conditions as
in this Lease contained save that there shall be no further
right of
renewal, and save that the rentals for the renewal period shall be
agreed upon between the Lessor and the Lessee at the
time. The said
right of renewal is subject to the Lessee giving written notice to
the Lessor of its intention so to renew, which
notice shall reach the
Lessor not less than six (6) calendar months prior to the date of
termination of this Lease. In the event
of no such notice being
received by the Lessor, or in the event of notice being duly received
but the Parties failing to reach
agreement in regard to the rentals
for the renewal period at least three (3) calendar months prior to
the date of termination of
this Lease, then in either event this
right of renewal shall be null and void.”
Everfresh
wrote to Shoprite on 14 July 2008:
“
In
terms of Clause 3 of the lease over ‘25 Hinton Place’,
dated 15 July 2003, we hereby exercise our option to renew
the lease
for a further period of 4 years and 11 months from 1 April 2009 to 28
February 2014.
We propose that a reasonable
escalation would be in line with the existing lease at
10,5% pa.
Accordingly we propose a
commencing rental at R93,600 (Ninety three thousand, six hundred
Rand) per month.”
Shoprite
replied on 3 September 2008:
“
We
refer to the above matter and your letter dated 14 July 2008
purporting to exercise a right of renewal in terms of the lease

agreement dated 15 July 2003.
We wish to inform you that,
according to our interpretation of the lease agreement and
understanding of the law, clause 3 does not
constitute a legally
binding and enforceable right of renewal which is capable of being
exercised by Wild Break 166 (Pty) Ltd.
We are therefore of the
opinion that your letter dated 14 July 2008 does not impose any
contractual obligation to renew and/or
have the effect of extending
the lease agreement beyond the term referred to in clause 1 thereof.
The lease agreement will accordingly
terminate after on 31 March 2009
by which date you are required to vacate the lease premises.
Apart from the fact that you are
not legally entitled to renew the lease, we are in any event desirous
to redevelop the Virginia
Shopping Centre that will also impact upon
the lease premises. We are thus unable to negotiate the extension of
the lease agreement
beyond the current termination date (31 March
2009). We may however reconsider our position once the redevelopment
of the shopping
centre has been completed.”
Shoprite’s
response was markedly different from its predecessor in title when
the precursor to the lease agreement with
which we are here
concerned was up for renewal. The original lease contained a similar
clause as that set out in paragraph 3
of this judgment. The
agreement of lease in this case is a product of the good faith
negotiations entered into between Everfresh
and Shoprite’s
predecessor in title in terms of a similar clause in the original
lease at a time when that lease was almost
at an end.
Everfresh
remained in occupation after 31 March 2009 and Shoprite began
ejectment proceedings in the High Court.
Shoprite
contended, in line with its written response to Everfresh’s
written effort to secure a renewal, that it was not
obliged to enter
into any negotiations and that Everfresh was in unlawful occupation.
Everfresh
advanced two contentions based on its interpretation of clause 3 in
its affidavit opposing the ejectment proceedings.
The first was that
the agreement gave it a right of renewal at a reasonable rental. The
second, made in the alternative, was
that Shoprite was and remains
obliged, on a proper construction of the contract, to make a bona
fide attempt to agree on the
rent for the renewal period. It
follows, so Everfresh contends, that the right to evict does not
accrue unless Shoprite negotiated
bona fide. In argument before the
High Court, however, Everfresh conceded that the agreement did not
contain an option to renew
and did not persist in its right to renew
at a reasonable rental. It limited its argument to Shoprite’s
obligation to make
a bona fide attempt to agree, contending that the
terms of the agreement precluded Shoprite from frustrating
Everfresh’s
qualified right to renew by refusing to negotiate
in good faith and that its right to renewal would fall away only if
the negotiations
in good faith did not result in an agreement.
The High Court emphasised that, according to our law, an option to
renew a lease on terms to be agreed is unenforceable.
6
The Court accepted that it was a material requirement of the
agreement “that the rental had to be agreed” and that

this had to be done between 14 July 2008 (the date of receipt of the
notice of the intention to renew) and 31 December 2008 (3
months
before the expiry of the contract). Accepting that an agreement
“inevitably” “presupposes an offer and
then an
acceptance corresponding to the terms of the offer”, the Court
concluded that clause 3 of the agreement did not
go so far as to
“impose a positive obligation or duty on the party who
rejected the offer (or who might fail to accept
the offer made
within a reasonable time, at worst by the latest 31 December 2008)
to make a counter-offer for consideration”
7
by Everfresh. Nor could the agreement be interpreted, so the Court
held, to “carry the corollary of a duty in terms so
wide that
it required extensive offers and counter-offers being exchanged, or
even as little as a positive duty to actually respond
to the
respondent’s proposed offer of rental.”
8
The High Court went on to say that even if it were wrong and that
the agreement conveyed some obligation to negotiate, “the

legal requirement that [the] negotiation [should] be in good faith”
would render the clause too vague to be enforced absent
a “readily
ascertainable objective standard” of good faith
assessibility.
9
The Court referred to the decision of the Supreme Court of Appeal in
Southernport
10
and concluded that the case was an instance where “a promise
to negotiate in good faith [occurred] in the context of an

arrangement which by its nature, purpose, contents, other provisions
or otherwise makes it clear that the promise is too illusory
or too
vague and uncertain to be enforceable”.
11
If Everfresh was required to make a counter-offer the Court said, it
could never be determined whether that offer had been made
in good
faith absent a readily ascertainable external standard.
12
The
application for leave to appeal was refused by the High Court and
the Supreme Court of Appeal. Hence the application before
us.
The
contentions in this Court
In
its launching affidavit Everfresh reiterates the argument made in
the High Court and criticises its judgment on the basis that
it
“gives judicial approval to a party breaching a term of an
agreement and in so doing [frustrates] what has been contractually

agreed to”. This is the context in which Everfresh makes
reference to the Constitution for the first time. It contends
that
the approach of the High Court just described is contrary to the
values enshrined in the Constitution and public policy
and deprives
the agreement of business efficacy. Shoprite should therefore have
been obliged to negotiate. This approach, though
not expressly
resorted to in the High Court, is wholly consistent with the
argument that had been proffered before and rejected
by the High
Court. And what is more, the reference to values of the Constitution
is quite obviously a reference to section 39(2)
of the Constitution.
After
affidavits had been filed, this Court accordingly issued directions
13
requiring written argument to include submissions on:
“
(a)
The precise nature of the obligation (if any) created by a provision
in a lease that the rentals for the renewal period shall
be agreed
upon between the lessor and the lessee.
(b) If there is an obligation to
negotiate in an effort to arrive at an agreement are the parties
required, at common law, to negotiate:
reasonably and/or
ii. in good faith.
(c) If there is no common law
obligation like that described in paragraph 5(b) of these directions,
is there a constitutional obligation
on this Court and other Courts
to develop the common law to require fair and/or reasonable conduct
or good faith on the part of
the lessee and the lessor.
(d) If so:
What constitutes fair and
reasonable conduct or conduct in good faith in the circumstances of
this case?
Has the conduct of the
respondent fallen below the requisite standard?
(e) If the conduct of the
respondent has fallen below the required standard, what are the terms
of an appropriate order that this
Court should make to facilitate
negotiations in compliance with the standard required by this
Court.”
14
Much
of Everfresh’s written argument in response to these
directions attempted to resuscitate the argument, abandoned in
the
High Court, that the agreement should be interpreted to provide for
a renewal of the contract at a reasonable rental. However,
Everfresh
conceded in oral argument that the circumstance that clause 3
contemplated the failure to reach an agreement excluded
the
possibility that the clause provided for agreement at a reasonable
rental. That issue, and the development of the common
law to
recognise agreements at a reasonable rental that might arise need
therefore not be considered further.
Everfresh
nevertheless continued to urge before this Court that clause 3 of
the agreement obliges the parties to it to negotiate
reasonably and
in good faith. But this time the Constitution was invoked and the
argument goes that the common law should be
developed pursuant to
section 39(2) of the Constitution so that parties to agreements are
precluded from refusing to negotiate
in good faith if an agreement,
properly interpreted, requires them to do so. It was submitted that
the sanctity of contract requires
this. The argument is essentially
the same as it was before the High Court but now buttressed and
strengthened by reference to
the Constitution and development of the
common law.
Should
the application for leave to appeal be granted?
This
Court will grant leave to appeal only if this application raises a
constitutional matter and if it is in the interests of
justice to
grant leave.
A
constitutional matter?
Everfresh
requires us to develop the law of contract in the light of section
39(2) of the Constitution so that the common law
would require
parties who undertake to negotiate a new rent for a renewed term of
a lease to do so reasonably and in good faith.
The High Court held
that the contract does not require the parties to negotiate and
that, even if it did, the obligation to negotiate
in good faith
would, in the circumstances of this case, be unenforceable.
Everfresh
contends that whether the High Court was correct in its construction
of the agreement and in its finding that the obligation
to negotiate
in good faith would in any event be too vague to be enforceable
indeed raise constitutional matters of some substance.
It concedes
that the approach of the High Court is consistent with existing
common law. Everfresh however argued that the High
Court should have
developed the common law in the light of the spirit, purport and
objects of the Constitution as required by
section 39(2). The
question whether the common law should have been developed by the
High Court according to the spirit, purport
and objects of the
Constitution to oblige parties who agree to negotiate rent for the
renewal period of a lease to do so reasonably
and/or in good faith
does raise a constitutional matter.
Interests
of justice?
The
crucial question is whether it is in the interests of justice to
grant leave to appeal. Everfresh has not traversed the interests
of
justice issue either in its application for leave to appeal or in
its written argument in this Court. We were urged in oral
argument
however that it was in the interests of justice to grant leave to
appeal. Ordinarily the failure to canvass interests
of justice in
the application for leave to appeal might well be fatal to the
application. In my view, we cannot achieve justice
in the
circumstances of this case if we do not consider whether the
interests of justice requirement has been met. This despite
the
issue not having been canvassed in the application for leave to
appeal. Applicants for leave to appeal to this Court are,
however,
well advised to canvass and establish in the course of the
application for leave to appeal that it is in the interests
of
justice for the application to be granted. There is a real risk of
their being non-suited altogether if this essential pre-requisite
is
not appropriately traversed.
Factors
that are important in determining whether it is in the interests of
justice to grant leave to appeal include questions
as to the
importance of the issues raised, whether the issues are raised for
the first time before this Court and the question
of prospects of
success.
Everfresh
contends that the common law should be developed in terms of the
Constitution to oblige parties who undertake to negotiate
with each
other to do so reasonably and in good faith. The contention of
Shoprite is that a provision of this kind should not
be enforceable
because the concept of good faith is too vague. Good faith is a
matter of considerable importance in our contract
law and the extent
to which our courts enforce the good faith requirement in contract
law is a matter of considerable public
and constitutional
importance. The question whether the spirit, purport and objects of
the Constitution require courts to encourage
good faith in
contractual dealings and whether our Constitution insists that good
faith requirements are enforceable should be
determined sooner
rather than later. Many people enter into contracts daily and every
contract has the potential not to be performed
in good faith. The
issue of good faith in contract touches the lives of many ordinary
people in our country.
The
values embraced by an appropriate appreciation of ubuntu are also
relevant in the process of determining the spirit, purport
and
objects of the Constitution. The development of our economy and
contract law has thus far predominantly been shaped by colonial

legal tradition represented by English law, Roman law and Roman
Dutch law. The common law of contract regulates the environment

within which trade and commerce take place. Its development should
take cognisance of the values of the vast majority of people
who are
now able to take part without hindrance in trade and commerce. And
it may well be that the approach of the majority of
people in our
country place a higher value on negotiating in good faith than would
otherwise have been the case. Contract law
cannot confine itself to
colonial legal tradition alone.
It
may be said that a contract of lease between two business entities
with limited liability does not implicate questions of ubuntu.
This
is, in my view, too narrow an approach. It is evident that
contractual terms to negotiate are not entered into only between

companies with limited liability. They are often entered into
between individuals and often between poor, vulnerable people on
one
hand and powerful, well-resourced companies on the other. The idea
that people or entities can undertake to negotiate and
then not do
so because this attitude becomes convenient for some or other
commercial reason, certainly implicates ubuntu.
The
constitutional issue that arises is of sufficient moment to the
lives of human beings in our society to require judicial
consideration.
The
difficulty that stands in the way of a consideration of this
important matter by this Court arises because of the way Everfresh

conducted its case. I do not accept in this connection that
Everfresh blew hot and cold and changed its case from time to time.

While it is true that Everfresh abandoned the reasonable rental
argument twice and tried to reinstate it before this Court, its

contention that the contract obliged Shoprite to negotiate in good
faith has been consistently made. The only criticism that
can be
advanced against Everfresh is that the issue of the development of
the common law was not raised directly either in the
High Court or
in the Supreme Court of Appeal. I say not directly because, in my
view, the issue of whether a duty to negotiate
in good faith is
imposed by a contract and whether that obligation has been imposed
by a particular contract is or should be
enforceable does raise, by
necessary implication, issues of public policy. And issues of public
policy in turn cannot be considered
without reference to section
39(2).
The
mere fact that the constitutional dimensions of the development
point were not raised in the High Court or Supreme Court of
Appeal
is no bar to considering the legal point on appeal to this Court,
provided that the pleaded and established facts allow
this without
prejudice to the opposing parties.
15
The crucial question is thus whether it will
be unfair to determine the issue in this Court on the facts pleaded
and accepted
in the High Court. In my view there is no possible
prejudice here.
Those
facts are all common cause: the original conclusion of the written
contract; its terms; the subsequent renewal of the lease
on a
previous occasion with the original lessor; and the refusal of
Shoprite, the successor in title as lessor, to negotiate
the rental
for a further renewal. This is thus not a case where Everfresh seeks
to rely on facts not pleaded in the High Court
and where the
introduction of those new facts would prejudice Shoprite because it
would not have had the opportunity to traverse
them. This is, purely
and simply, a case about the interpretation of a contract in terms
of the applicable law. I have always
understood that it is not only
permissible for a court of appeal to decide on the correct legal
interpretation of a contract
where the facts on which the
interpretation must be based are not disputed, but that it is
obliged to do so, even if the legal
argument on appeal is different
to that advanced in the trial court.
Barkhuizen
is
recognition in this Court of that general principle.
16
Be
that as it may, this Court, if it considers the constitutional issue
in this case, will do so as the court of first and last
instance.
This direction should not be taken lightly, more particularly since
it is concerned with the development of the common
law.
17
Another
consideration is this. The fact that section 39(2) of the
Constitution has been ignored by the High Court and possibly
by the
Supreme Court of Appeal when its relevance was by necessary
implication brought into sharp relief does add considerable

complexity to the equation. This Court said in
Carmichele
:
18
“
It
needs to be stressed that the obligation of courts to develop the
common law, in the context of the section 39(2) objectives,
is not
purely discretionary. On the contrary, it is implicit in section
39(2) read with section 173 that where the common law as
it stands is
deficient in promoting the section 39(2) objectives, the courts are
under a general obligation to develop it appropriately.
We say a
‘general obligation’ because we do not mean to suggest
that a court must, in each and every case where the
common law is
involved, embark on an independent exercise as to whether the common
law is in need of development and, if so, how
it is to be developed
under section 39(2). At the same time there might be circumstances
where a court is obliged to raise the
matter on its own and require
full argument from the parties.
It was
implicit in the applicant’s case that the common law had to be
developed beyond existing precedent. In such a situation
there are
two stages to the inquiry a court is obliged to undertake. They
cannot be hermetically separated from one another. The
first stage is
to consider whether the existing common law, having regard to the
section 39(2) objectives, requires development
in accordance with
these objectives. This inquiry requires a reconsideration of the
common law in the light of section 39(2). If
this inquiry leads to a
positive answer, the second stage concerns itself with how such
development is to take place in order to
meet the section 39(2)
objectives. Possibly because of the way the case was argued before
them, neither the High Court nor the
SCA embarked on either stage of
the above inquiry.”
19
This
passage shows that, while the courts have a “general
obligation” to develop the common law, courts need not conduct

this exercise in each and every case that comes before them.
However, there are indeed cases in which circumstances would oblige

a court to raise the matter on its own. On the other hand, there are
other cases in which a court would not be obliged to enter
this
terrain. The extract is also authority for the proposition, in my
view, that where it is “implicit in the applicant’s
case
that the common law had to be developed”, the court must
consider “whether the existing common law, having regard
to
the section 39(2) objectives, requires development in accordance
with these objectives.”
Like
in
Carmichele
, i
t is “implicit”
in the case put up by Everfresh “that the common law had to be
developed beyond existing precedent”.
The High Court was
accordingly obliged to follow the two-stage process described in
Carmichele
namely,
whether the common law falls short of the spirit, purport and
objects of the Constitution and, if so, how that “development

is to take place”.
20
And in this case, like in
Carmichele
,
“[p]ossibly because of the way the case was argued before
them, neither the High Court nor the SCA embarked on either
stage of
the above inquiry.”
21
The
importance of the duty of a court in relation to section 39(2) was
emphasised in
K
:
22
“
The
normative influence of the Constitution must be felt throughout the
common law. Courts making decisions which involve the incremental

development of the rules of the common law in cases where the values
of the Constitution are relevant are therefore also bound
by the
terms of section 39(2). The obligation imposed upon courts by section
39(2) of the Constitution is thus extensive, requiring
courts to be
alert to the normative framework of the Constitution not only when
some startling new development of the common law
is in issue, but in
all cases where the incremental development of the rule is in
issue.”
23
A
court should always be alive to the possibility of the development
of the common law in the light of the spirit, purport and
objects of
the Bill of Rights. The development of the common law would
otherwise be no more than a distant dream. A court should
always be
at pains to discover whether the development of the common law is
implicit in a case. If, in the particular circumstances,
it appears
to a court that section 39(2) is implicitly raised and that the
common law might have to be developed, that court
has no choice but
to embark upon that inquiry.
There
is a link between the way in which the High Court interpreted the
clause and the finding that the renewal obligation was
too vague to
be enforced. If, for example, the High Court had found that the
clause obliged Shoprite to make at least one counter-offer,
the
obligation would not have been too vague to be enforced. And it
cannot be gainsaid that the spirit, purport and objects of
the Bill
of Rights as well as the related development of the common law is
potentially relevant in both inquiries.
The
High Court’s construction of the clause, without reference to
public policy or to section 39(2), is not free from difficulty.
It
was necessary to consider whether to develop the common law and
whether the detailed provisions of the clause carry the necessary

implication that the renewal was not to be regarded as null and void
in every respect. The proposition that a common law contract

principle that provides meaningful parameters to render an agreement
to negotiate in good faith enforceable is decidedly more
consistent
with section 39(2) than a regime that does not. A common law
principle that renders an obligation to negotiate enforceable
cannot
be said to be inconsistent with the sanctity of contract and the
important moral denominator of good faith. Indeed, the

enforceability of a principle of this kind accords with and is an
important component of the process of the development of a
new
constitutional contractual order. It cannot be doubted that a
requirement that allows a party to a contract to ignore detailed

provisions of a contract as though they had never been written is
less consistent with these contractual precepts: precepts that
are
in harmony with the spirit, purport and objects of the Constitution.
Suffice
it to say that Everfresh has reasonable prospects of success in its
quest to develop the common law in terms of section
39(2) of the
Constitution. And it should not be denied this opportunity because
the High Court did not consider section 39(2)
when it ought to have
done so. The fact that the development of the common law was not
expressly raised by Everfresh in its interpretation
argument in the
High Court cannot serve to deprive Everfresh of the opportunity to
raise it here. I have already said that the
Supreme Court of Appeal
in
Southernport
24
approved a principle laid down by an Australian court
25
that a promise to negotiate in good faith that occurs in a context
of an arrangement which makes it clear that the promise is
too
illusory or too vague and uncertain to be enforceable is not
enforceable.
26
This cannot be gainsaid. But the determination whether a promise is
too illusory or too vague and uncertain must be made against
the
backdrop of an understanding that good faith should be encouraged in
contracts and a party should be held to its bargain.
The question to
be answered is whether the common law as developed requires the
enforcement of the bargain in this case.
I
conclude therefore that the High Court ought to have investigated
the question whether the common law fell to be developed in

accordance with the spirit, purport and objects of the Constitution.
Its failure to do so was a misdirection. There is a reasonable

prospect that the question whether the common law should be
developed will be answered in the affirmative.
In
the circumstances, leave to appeal must be granted.
Remedy
The
fact that leave to appeal is granted does not mean that it is in the
interests of justice for us to consider the merits of
the appeal
absent any consideration of the complex issues by the High Court or
the Supreme Court of Appeal. Should we consider
the case ourselves?
Or is it more appropriate for us to set aside the judgment of the
High Court and refer the case back to it
to determine the question?
The
High Courts and the Supreme Court of Appeal are primary vehicles for
developing the common law. Where it is found in this
Court that
those courts failed properly to consider a constitutional dimension
of an issue, the general remedy will be to refer
it back.
After
anxious consideration, I conclude that it is in the interests of
justice for the matter to be referred back to the High
Court to
enable a consideration of the issue it should have considered in the
first place. Ultimately, in the circumstances of
this case, and
particularly in the light of the prospects of success it would be
more just to allow a reconsideration of the
case by the High Court
than to confirm the eviction of Everfresh at this stage. The High
Court must consider, in the light of
this judgment, whether the
common law needs to be developed and if so, the nature and extent of
the development of the common
law that is appropriate in the
circumstances. The clause in issue must then be interpreted and, if
appropriate, relief must be
determined in the light of the common
law as might be developed by the High Court.
This
decision will prejudice Shoprite. This prejudice cannot in our view
be avoided without the immediate ejectment of Everfresh,
a course
that might well turn out to have been constitutionally unjustified.
It is regrettably not in the interests of justice
for us to go this
route.
Costs
Fundamental
to an appropriate costs order is that Everfresh did not raise the
issue in explicit constitutional terms in the High
Court or in the
Supreme Court of Appeal when it could and should have done so. I
consider that fairness requires Everfresh to
pay Shoprite’s
costs in the High Court, in the Supreme Court of Appeal (if any),
and in this Court.
Conclusion
I
would accordingly grant leave to appeal, uphold the appeal, refer
the matter to the High Court for reconsideration and in
effect make
the costs order considered appropriate by the Deputy Chief Justice.
MOSENEKE DCJ (Ncgobo CJ, Cameron J, Jafta J, Khampepe J, Nkabinde J
and
Van der Westhuizen J concurring):
Introduction
I
have had the privilege of reading the well-crafted judgment of my
colleague Yacoob J. I am grateful for his narration of the

background, with which I agree. He would grant leave to appeal, set
aside the order of eviction granted against the applicant,

Everfresh, and remit the case to the High Court for a fresh
consideration whether the existing common law of contract that

holds that a promise to negotiate is unenforceable should be
developed in accordance with the requirements of section 39(2)
of
the Constitution and if so, the nature and extent of the
development.
I am
in respectful disagreement with the outcome Yacoob J favours. In my
view, it is not in the interests of justice to entertain
the
appeal. Accordingly, the application for leave to appeal falls to
be dismissed with costs. This means that I will not set
aside the
order of eviction and remit the case to the High Court for
re-hearing. What follows are my reasons for reaching this

conclusion.
Constitutional issue
I
accept the contention that a given principle of the common law of
contract ought to be infused with constitutional values
does raise
a constitutional issue. The refashioning of the common law in
accordance with fundamental constitutional values
is mandated by
section 39(2) of the Constitution. The common law, like all other
laws, must be viewed through the prism of
the objective normative
value system set by the Constitution and, where it is found to fall
short, must be reshaped in order
to conform to our supreme law.
Clearly, before this Court Everfresh is raising a constitutional
issue of some importance. This,
however, does not mean that by
Everfresh merely raising a constitutional issue this Court is
without more obliged to hear it.
Once we are past this initial
jurisdictional hurdle that is not the end of the matter. We are
still obliged to probe whether
it is in the interests of justice to
determine the dispute.
Interests of justice
Where
the interests of justice lie is a function of a careful balancing
of several relevant considerations. In a claim for an
adaptation of
the common law, not least of these factors would be whether the
High Court or the Supreme Court of Appeal has
considered the issue
and whether it bears a reasonable prospect of success. As Yacoob J
correctly points out, neither in its
application for leave to
appeal nor in its written argument in this Court has Everfresh made
submissions on why it is in the
interests of justice for this Court
to hear its appeal. Ordinarily an omission of this kind would be
fatal to an application
for leave to appeal. Given the outcome I
reach, I need not non-suit Everfresh solely on this slender ground.
In
deciding whether to grant leave to appeal we have to weigh
carefully several relevant factors. I highlight four important

considerations. First, whether Everfresh’s defence to
Shoprite’s claim for eviction in the High Court, Supreme

Court of Appeal and now in this Court has changed over time.
Ordinarily, it would not be in the interests of justice for a

litigant to adjust its case as it goes along to the prejudice of an
opposing litigant. Second, whether the quest to develop
the law of
contract on a promise to agree or to negotiate, in line with
constitutional values, is being raised for the first
time in this
Court. Third, whether the prospects of success of the claim that
the common law should be developed should be
decided. Fourth,
whether the claim to develop the common law should be remitted to
the High Court. I deal with each of these
considerations in
sequence.
Has Everfresh’s case changed over time to the prejudice of
Shoprite?
This
Court set out the test for proper pleading in
Prince v President
of the Law Society of the Cape of Good Hope and Others
.
27
Ngcobo J wrote:
“
Parties
who challenge the constitutionality of a provision in a statute must
raise the constitutionality of the provisions sought
to be
challenged at the time they institute legal proceedings. In
addition, a party must place before the court information relevant

to the determination of the constitutionality of the impugned
provisions. Similarly, a party seeking to justify a limitation
of a
constitutional right must place before the court information
relevant to the issue of justification. I would emphasise that
all
this information must be placed before the court of first instance.
The placing of the relevant information is necessary
to warn the
other party of the case it will have to meet, so as allow it the
opportunity to present factual material and legal
argument to meet
that case. It is not sufficient for a party to raise the
constitutionality of a statute only in the heads of
argument,
without laying a proper foundation for such a challenge in the
papers or the pleadings. The other party must be left
in no doubt as
to the nature of the case it has to meet and the relief that is
sought. Nor can parties hope to supplement and
make their case on
appeal.”
28
(Footnote omitted.)
It
is so that the test on proper pleading in
Prince
related to
a challenge to the constitutional validity of a provision in a
statute. That test however is of equal force where,
as in the
present case, a party seeks to invoke the Constitution in order to
adapt or change an existing precedent or a rule
of the common law
or of customary law in order to promote the spirit, purport and
objects of the Bill of Rights.
29
Litigants who seek to invoke provisions of section 39(2) must
ordinarily plead their case in the court of first instance in
order
to warn the other party of the case it will have to meet and the
relief sought against it. The other obvious benefit
is that the
High Court and the Supreme Court of Appeal will be afforded the
opportunity to help shape the common law and customary
law in line
with the normative grid of the Constitution.
Everfresh’s
case has indeed taken different forms in different forums, and
sometimes in the same forum. In order to trace
the mutation of
Everfresh’s contentions, it is convenient to recap the
litigation history. On 5 August 2009 Shoprite
instituted eviction
proceedings in the High Court against Everfresh on the ground that
it had no right to occupy the premises
because the lease between
them ended on 31 March 2009. Everfresh put up two defences. Its
main defence was that it had the
right to occupy because it had
unilaterally but validly renewed the lease for a further period of
four years and eleven months
on the same terms as contained in the
expired lease. Simply put, Everfresh contended that there was a new
lease in place because
clause 3
30
of the lease contained a valid right of renewal and that by notice
to Shoprite it had renewed the lease at a rental that was
effective
when the lease ended (R93 600,00 per month) escalating annually at
10,5%.
Everfresh’s
alternative defence was that Shoprite had no right to evict it from
the premises because clause 3 of the lease
obliged Shoprite to make
an honest effort to reach an agreement with it on the rentals for
the renewal period and that it may
not frustrate the mechanism that
clause 3 prescribes by refusing to participate in it. This is a
dilatory defence and amounts
to an assertion that an eviction is
not competent until an honest attempt has been made to agree on a
reasonable rental.
What
is evident is that both defences are rooted in an interpretation of
clause 3 of the lease agreement. The High Court was
called upon to
interpret whether the clause provided first, for a valid right of
renewal or, second, for a valid agreement
to negotiate. In other
words, the defences raised were restricted to and dependent on a
proper interpretation of the renewal
clause.
During
the hearing in the High Court, Everfresh abandoned its main
defence. It accepted that clause 3 does not contain an option
which
by its unilateral acceptance would give rise to a binding lease for
the renewal period.
31
The High Court found that Everfresh’s concession accords with
the common law of contract because there cannot be a valid
lease
unless the amount of rental has been specified, fixed or is
definitely ascertainable. This meant that an option to renew
a
lease on terms to be agreed is invalid and unenforceable.
32
The Court also rejected the implicit contention that clause 3
envisages that “reasonable rental” would be paid
during
the renewal period.
33
The
High Court turned to the alternative defence and found that clause
3 does not create a positive duty to negotiate by exchanging
offers
and counter-offers or to respond to the offer of rental by
Everfresh. It found that even if there was an agreement to

negotiate in good faith, the obligation was too uncertain to
enforce. Absent a readily ascertainable objective standard, the

Court reasoned, it would be impossible to assess whether a party’s
conduct was in good faith or not. It concluded that
clause 3 was no
more than “a promise, assuming it to be one to negotiate in
good faith which by its very nature, purpose
and context is simply
too vague and uncertain to be enforceable.”
34
Everfresh
sought leave from the High Court to appeal its decision. Leave was
refused.
35
It petitioned the Supreme Court of Appeal but leave to appeal was
refused.
36
The two applications for leave to appeal reveal that Everfresh no
longer contended that clause 3 contained an option to renew
which
could be exercised unilaterally. It rather relied on its
alternative argument that properly construed, clause 3 obliged

Shoprite to negotiate in good faith on renewal of rental and that
it may not eject Everfresh until it had negotiated in good
faith.
Again, Everfresh did not invoke the Constitution or suggest that
the common law ought to be adapted to create a duty
on a party to
negotiate in order to arrive at an agreement on rentals.
In
its application for leave to appeal to this Court Everfresh, for
the first time, contended that the interpretation of clause
3 that
placed no obligation on a party to negotiate in seeking to
determine a reasonable rental, deprives it of its right to
equal
protection and benefit of the law as provided for in the Bill of
Rights.
In
its written argument, however, Everfresh departed from its
averments in the application for leave to appeal to this Court.
It
retracted its criticism of the manner in which the High Court
interpreted clause 3 and went further to endorse its interpretation

as correct under the common law. I can do no better than to cite
the relevant part of the written argument:
“
The
Court a quo granted an eviction order in favour of the lessor on the
basis that the clause imposed no obligation upon the
lessor to
negotiate with the lessee regarding rentals for the renewal period
and on the basis that the lease had therefore terminated
through
effluxion of time.
At common law, no obligation is
created by such a clause. The decision of the Court
a quo
in
this regard cannot be faulted from a common law perspective.”
37
Having
made the concession that the High Court was correct on the common
law, Everfresh went on to submit that the common law
must be
developed to recognise (a) the validity of a lease at a reasonable
rental and (b) that clause 3 contains an implied
ex lege
term that the rental is to be reasonable. To this contention it
added two alternative arguments both of which were never raised
in
any of the preceding courts and not even in the application for
leave to appeal in this Court. The first is that at common
law, if
a contractual discretion is granted to one contracting party, the
discretion has to be exercised
arbitrio boni viri
.
38
This rule ought to be extended to recognise that where a clause
grants both parties the discretion to negotiate, they are both

obliged to negotiate reasonably. The second alternative advanced is
that the constitutional values require that the common
law must be
adapted to impose a duty to negotiate in good faith on both
parties. The constitutional values Everfresh now relies
upon are “a
framework within which the ability to contract enhances rather than
diminishes our self-respect and dignity.”
39
It adds that the concept of ubuntu and the necessity to do simple
justice between individuals have been recognised as informing

public policy in a contractual context.
There
can be no doubt that Everfresh adapted its defences to the eviction
claim as and when the litigation progressed to the
obvious
detriment of Shoprite.
Is the claim to develop the common law raised for the first time
in this Court?
Everfresh
has not only altered its defences as it went along, but has also
failed to raise any of the constitutional points
in the High Court
and Supreme Court of Appeal. This Court has often warned that while
there may be cases where the interests
of justice require that a
constitutional complaint be raised for the first time before this
Court, these would be rare and
exceptional.
40
In
Lane and Fey NNO
41
this Court set out the proper approach in the following terms:
“
Where
the development of the common law is the issue, the views and
approach of the ordinary courts, and particularly the SCA,
are of
particular significance and value. Save in special circumstances,
this Court should not consider this kind of matter as
a Court of
first instance. No relevant factors have been raised by the
applicants that would constitute such special circumstances.”
42
(Footnote omitted.)
Everfresh
has to establish special circumstances that would justify this
Court being a court of first and last instance in a
matter that
implicates the development of the common law of contract. It has
not done so. It will be recalled that Everfresh
did not even
advance any grounds why it is in the interests of justice to grant
leave to appeal. If anything, several factors
point against this
Court tackling the wide ranging commercial intricacies related to
renewal clauses in existing leases. The
adaptation of the common
law Everfresh urges upon us includes at least four possibilities:
recognising the validity of a lease
at a reasonable rental;
recognising an implied (
ex lege
) term that rental is
reasonable; requiring contracting parties who have a discretion to
negotiate to do so reasonably (
arbitrio boni viri
); or
imposing a duty on the parties to negotiate in good faith. All this
we are urged to do without the benefit of the views
of the High
Court and of the Supreme Court of Appeal.
If
we were to accept Everfresh’s invitation to adapt the common
law, Shoprite would be obviously prejudiced. It would
be confronted
with a change of front at a very late stage in the proceedings. If
these matters were raised in good time, Shoprite
would have had the
opportunity to meet them head on by perhaps tendering evidence or
advancing new arguments or adapting its
contentions.
It
would simply be unfair to require Shoprite to meet a brand new case
at an appellate stage. Everfresh has not advanced any
reason at all
for its omission to plead its case fully and earlier than in this
Court and for its ever changing defences to
the eviction claim.
This is a commercial dispute of considerable monetary value in
which the parties were legally represented
before and during
litigation in all the courts including this one. Everfresh has not
suggested that it lacked proper legal
representation or that it was
poorly advised or indeed that it suffered from any form of
vulnerability springing from an unequal
bargaining position.
Moreover, Everfresh has not pleaded any dire consequences,
commercial or otherwise, that might ensue if
the lease were not
renewed. If anything, it appears to have benefitted from the
prolonged litigation in the sense that it has
warded off the
ejectment and continued with its commercial enterprise pending a
final decision of this Court.
Everfresh
has not advanced nor can I find any special circumstances which
would render it in the interests of justice for this
Court to hear
a claim for the development of the common law of contract relating
to a renewal clause in a lease, as a court
of first and final
instance.
Prospects of success
Ordinarily,
in evaluating whether to grant leave to appeal, prospects of
success are an important but not always a decisive
factor. In its
written argument in this Court, Everfresh concedes that without
constitutional development the High Court properly
interpreted
clause 3 and that on existing judicial precedent its terms do not
give rise to an obligation to negotiate. Everfresh
agrees with the
High Court’s finding that under the common law an option to
renew a lease upon terms to be agreed is
invalid and unenforceable.
Well, if the renewal clause does not bring into being a duty to
negotiate at all, there can be no
need in this case to import the
requirement that negotiation be done in good faith. This explains
why Everfresh took refuge
in the newly-crafted defence that the
common law be constitutionally improved. To this end, it advanced
at least four ways
in which the common law ought to be developed.
I am
prepared to accept that there could be more than one plausible
interpretation of the clause and that Everfresh’s
argument
may therefore not be without some prospect of success. When two
contracting parties conclude a bargain that a certain
state of
affairs will come into existence between them, provided only that
the terms of a necessary condition “shall
be agreed”, a
court called upon to interpret that provision may find itself
required to develop the common law. It may
find that “shall”
imports a duty to negotiate and that parties would at least try to
reach agreement on those terms.
Counsel for the lessor sought to
argue that “shall be agreed” in clause 3 implies no
more than a conditional futurity
– in other words, that a
right of renewal would come into existence only if at some future
point the parties were to
reach agreement on rental. However, I
accept in Everfresh’s favour that there is at least a
reasonable prospect that
a court would find that “shall”
imports the imperative and not merely the future tense.
If
that were so, then the parties’ bargain was that they would
try to agree, and the age-old contractual doctrine that
agreements
solemnly made should be honoured and enforced (
pacta sunt
servanda
) would bolster Everfresh’s case that the law
should be developed to make an agreement of this kind enforceable.
Had
the case been properly pleaded, a number of inter-linking
constitutional values would inform a development of the common
law.
Indeed, it is highly desirable and in fact necessary to infuse the
law of contract with constitutional values, including
values of
ubuntu, which inspire much of our constitutional compact. On a
number of occasions in the past this Court has had
regard to the
meaning and content of the concept of ubuntu. It emphasises the
communal nature of society and “carries
in it the ideas of
humaneness, social justice and fairness”
43
and envelopes “the key values of group solidarity,
compassion, respect, human dignity, conformity to basic norms and

collective unity”.
44
Were
a court to entertain Everfresh’s argument, the underlying
notion of good faith in contract law, the maxim of contractual

doctrine that agreements seriously entered into should be enforced,
and the value of ubuntu, which inspires much of our constitutional

compact, may tilt the argument in its favour. Contracting parties
certainly need to relate to each other in good faith. Where
there
is a contractual obligation to negotiate, it would be hardly
imaginable that our constitutional values would not require
that
the negotiation must be done reasonably, with a view to reaching an
agreement and in good faith.
I
however conclude that it is unnecessary to decide the merits of any
of these difficult questions now. We have not had the
benefit of
full argument, Shoprite has not had a proper opportunity to meet
it, we are deprived of the views of the High Court
and the Supreme
Court of Appeal in matters where their expertise would be helpful,
and there are no exceptional circumstances
that incline us to be a
court of first and final instance.
On
the contrary, for all the reasons I have earlier outlined, the
interests of justice point away from allowing Everfresh to
raise
its argument for the first time. In particular, Everfresh cites no
element of disparate bargaining power or contractual
oppression,
and claims no unfairness in the bargain it made with the lessor.
Its dispute is purely about commercial premises,
and it makes no
case that if it loses these, it will be unable to find any other,
or that these particular premises are of
any special value or
importance to it. Against this background, and the powerful factors
pointing away from allowing Everfresh
to raise its constitutional
argument at this very late stage, the mere possibility that its
belated quest to have the common
law developed may have some
prospect of prevailing cannot sway the day in its favour.
Should the matter be remitted to the High Court?
Yacoob
J has taken the view that there is a reasonable prospect that the
question whether the common law should be developed
would have been
answered in the affirmative. He concludes that the High Court ought
to have investigated the question of whether
the common law falls
to be developed in accordance with the spirit, purport and objects
of the Constitution. I am unable to
agree.
I
can find nothing that justifies requiring the High Court to embark
on an adaptation of the common law of its own volition.
Unlike in
Carmichele
,
45
here the High Court was not confronted with an egregious invasion
of a collection of vital fundamental rights which could not
be
vindicated when the High Court felt bound by existing precedent to
grant absolution from the instance.
46
Moreover, unlike here, in
Carmichele
there was no doubt that
had the High Court developed the common law of delict and heard
evidence on trial, the claimant had
clear prospects of success in
her claim.
It
follows that it would not be in the interests of justice to remit
this matter to the High Court on the narrow ground that
it ought to
have investigated the possible adaptation of the common law of its
own volition.
There
are other pressing considerations. If the matter is remitted, the
respondent would have to litigate afresh whilst Everfresh
remains
in occupation of Shoprite’s premises for possibly a few more
years as the matter winds its way up to this Court
again. This
delay would occur in circumstances where in the end, the renewal of
the lease would take place only if, after the
negotiation, Shoprite
were to agree a rental. We know that whatever negotiations in good
faith the “developed”
common law would impose, it would
not compel the respondent to agree to a renewal of the lease. After
negotiating in good faith,
the parties may not reach an agreement
and the lease would not be extended. Another consideration is that
the renewal period
in issue expires in February 2014. If remittal
is ordered the period may expire before the litigation is
finalised.
The
second reason is that at the very least this Court, as an appellate
court, must before remitting be satisfied that the common
law, like
in
Carmichele
, needs to be developed
.
In other words,
the appellate court has to pronounce itself on the merits of the
need to develop the common law in the course
of determining
prospects of success of the application for leave to appeal. It is
not good enough to ask the court a quo whether
the common law needs
to be developed. That hypothetical question arises in every single
case involving the common law. The
judgment of Yacoob J eschews the
merits and requires the High Court to do that preliminary enquiry.
I thus hold that it is
not in the interests of justice to remit
unless there is a reasonable prospect that the court to which the
matter is remitted
is likely to hold that the common law needs to
be adapted. Otherwise the remittal may be said to be speculative.
For
all these reasons the application for leave to appeal has to fail.
Order
The
application for leave to appeal is dismissed with costs.
For the
Applicant: Advocate JP Vorster SC instructed by Van der Merwe Du
Toit Inc.
For the
Respondent: Advocate AM Breitenbach SC and Advocate MW Janisch
instructed by Werksmans Attorneys.
1
Mandated
by section 39(2) which provides:
“
When interpreting any
legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote
the spirit, purport and
objects of the Bill of Rights.”
2
Previously
named Wild Break 166 (Pty) Ltd.
3
H.R.
Geeringh C.C.
4
Described
as portions 506, 507, 508, 509, 510 and 542, all of Erf 3193 Durban
North.
5
On
30 May 2008.
6
Shoprite
Checkers (Pty) Limited v Everfresh
Market Virginia (Pty)
Limited
, Case No. 6675/09, KwaZulu-Natal High Court,
Pietermaritzburg, 25 May 2010 as yet unreported, at para 9.
7
Id
at para 19.
8
Id
at para 21.
9
Id
at para 22.
10
Southernport
Developments (Pty) Ltd v Transnet Ltd
2005 (2) SA 202
(SCA).
11
Above
n 6 at para 26 read with para 25 where the High Court relied on a
passage from the Australian case of
Coal Cliff Collieries Pty Ltd
and Another v Sijehama
Pty Ltd and Another
(1991) 24
NSWLR 1
, quoted with apparent approval by the Supreme Court of
Appeal in
Southernport
above n 10 at paras 15-6
.
12
Above
n 6 at para 27.
13
Directions
dated 1 February 2011
.
14
Id
at para 5.
15
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (7) BCLR 691
(CC);
2007 (5) SA 323
(CC) at paras 37-42.
16
Id.
17
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others
[2010]
ZACC 3
;
2010 (5) BCLR 422
(CC) at para 21;
Lane
NO and Another v Dabelstein and Others
[2001]
ZACC 14
;
2001 (4) BCLR 312
(CC);
2001 (2) SA 1187
(CC) at para 5;
National Gambling Board v Premier of
KwaZulu-Natal and Others
[2001] ZACC
8
;
2002 (2) BCLR
156
(CC); 2002 (2
)
SA 715 (CC)
at para 29; and
Bruce
and Another v Fleecytex Johannesburg CC and Others
[1998]
ZACC 3
;
1998 (4) BCLR 415
(CC);
1998 (2) SA 1143
(CC) at paras 7-8.
18
Carmichele
v Minister of Safety and Security and Another
[2001] ZACC 22
;
2001 (10) BCLR 995
(CC);
2001 (4) SA 938
(CC).
19
Id
at paras 39 and 40.
20
Id
at para 40.
21
Id.
22
K
v Minister of Safety and Security
[2005] ZACC 8
;
2005 (9) BCLR
835
(CC);
2005 (6) SA 419
(CC).
23
Id
at para 17.
24
Above
n 10.
25
The
Supreme Court of New South Wales. See above n 11.
26
Above
at [11].
27
[2000]
ZACC 28
;
2001 (2) SA 388
(CC);
2001 (2) BCLR 133
(CC).
28
Id
at para 22.
29
The
test on pleading in
Prince
was extended to a case relating to
breach of a constitutional right in
Singh v Commissioner, South
African Revenue Service
2003 (4) SA 520
(SCA) at para 24.
30
The
full text of clause 3 is to be found in Yacoob J’s judgment at
[3] above.
31
Shoprite
Checkers (Pty) Limited v Everfresh
Market Virginia (Pty)
Limited
, Case No. 6675/09, KwaZulu-Natal High Court,
Pietermaritzburg, 25 May 2010 as yet unreported at para 8.
32
Id
at para 9.
33
Id
at para 10.
34
Id
at para 29. See also id at para 23 referring to
Southernport
Developments (Pty) Ltd v Transnet Ltd
2005 (2) SA 202
(SCA) and
the Australian case
Coal Cliff Collieries Pty Ltd v Sijehama Pty
Ltd
(1991) 24 NSWLR 1.
35
Leave
to appeal was lodged on 8 July 2010 and refused on 10 August 2010.
36
Leave
was refused on 4 November 2010.
37
Everfresh’s
written argument further provides:
“
It is submitted that at
common law no obligation is created by such a provision. The
proposition which was accepted by KOEN J
that an option to renew a
lease upon terms to be agreed, is invalid and unenforceable, is with
respect unobjectionable from a
common law perspective. The
proposition in question is certainly borne out by the authorities
cited in paragraph [9] of the judgment
of KOEN J.
This approach is consistent with the approach which is
more generally followed with regard to the enforceability of an
agreement
to negotiate. In Premier, Free State v Firechem Free State
(Pty) Ltd SCHUTZ JA held as follows:
‘
An agreement that the
parties will negotiate to conclude another agreement is not
enforceable, because of the absolute discretion
vested in the
parties to agree or disagree
.”
(Footnotes omitted.)
38
According
to Hiemstra and Gonin
Drietalige Regs-Woordeboek
(Juta, Cape
Town 1981) at 162 the phrase means a “decision . . . [or]
discretionary power of a good man”. For a general
discussion
of
abitrio boni viri
see
Blake and Another v Cassim and
Another NNO
[2008] ZASCA 67
;
2008 (5) SA 393
(SCA);
Dharumpal
Transport
(Pty) Ltd v Dharumpal
1956 (1) SA 700
(A); and
Machanick v
Simon
1920 CPD 333.
39
Brisley
v Drotsky
2002 (4) SA 1
(SCA) at
36A-B. See also
Napier v Barkhuizen
2006 (4) SA 1
(SCA) at paras 12 and
23.
40
Phillips
and Others v National Director of Public Prosecutions
[2005]
ZACC 15
;
2006 (1) SA 505
(CC);
2006 (2) BCLR 274
(CC) at para 44.
41
Lane
and Fey NNO v Dabelstein and Others
[2001] ZACC 14
;
2001 (2) SA
1187
(CC);
2001 (4) BCLR 312
(CC).
42
Id
at para 5. See also
Carmichele v Minister of Safety and Security
and Another (Centre For Applied Legal Studies intervening)
[2001]
ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) (
Carmichele
)
at paras 50-5.
43
S
v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) (
Makwanyane
) at para 237.
44
Id
at para 308. See also id at 223-5, 227, 237, 262-3, 307-8 and 374;
The Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and
Others, Amici Curiae)
[2011] ZACC 11
;
2011 (4) SA 191
(CC);
2011
(8) BCLR 816
(CC) at paras 164-5, 168, 210 and 216-8;
Le Roux and
Others v Dey (Freedom of Expression Institute and Restorative
Justice Centre as Amici Curiae)
[2011] ZACC 4
;
2011 (3) SA 274
(CC);
2011 (6) BCLR 577
(CC) at para 200;
Van Vuren v Minister
for Correctional Services and Others
[2010] ZACC 17
;
2010 (12)
BCLR 1233
(CC) at para 51;
Joseph and Others v City of
Johannesburg and Others
[2009] ZACC 30
;
2010 (4) SA 55
(CC) at
para 46;
2010 (3) BCLR 212
(CC) at para 45;
Koyabe and Others v
Minister for Home Affairs and Others (Lawyers for Human Rights as
Amicus Curiae)
[2009] ZACC 23
;
2010 (4) SA 327
(CC);
2009 (12)
BCLR 1192
(CC) at para 62;
Bertie Van Zyl (Pty) Ltd and Another v
Minister for Safety and Security and Others
[2009] ZACC 11
;
2010
(2) SA 181
(CC);
2009 (10) BCLR 978
(CC) at para 78;
Barkhuizen v
Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR 691
(CC) at para 51;
Dikoko v Mokhatla
[2006] ZACC 10
;
2006 (6)
SA 235
(CC);
2007 (1) BCLR 1
(CC) at paras 68-9, 86, 112-8 and 121;
Bhe and Others v Magistrate, Khayelitsha, and Others (Commission
for Gender Equality as Amicus Curiae); Shibi v Sithole and Others;

South African Human Rights Commission and Another
v President
of the Republic of South Africa and Another
[2004] ZACC 17
;
2005
(1) SA 580
(CC);
2005 (1) BCLR 1
(CC) at paras 45 and 163;
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC);
2004 (12) BCLR 1268
(CC) at para 37;
Christian
Education South Africa v Minister of Education
[2000] ZACC 11
;
2000 (4) SA 757
(CC);
2000 (10) BCLR 1051
(CC) at para 50; and
Azanian Peoples Organisation
(AZAPO)
and Others v
President of the Republic of South Africa and Others
[1996] ZACC
16
;
1996 (4) SA 671
(CC);
1996 (8) BCLR 1015
(CC) at paras 3, 19 and
48. For academic articles see Bennett “Ubuntu: An African
Equity” (2011) 14 (4)
Potchefstroom Electronic Law Journal
29; Gade “The Historical Development of the Written Discourses
on
Ubuntu
” (2011) 30
South African Journal of
Philosophy
303; and Mokgoro “Ubuntu and the Law in South
Africa”
(1998) 4
Buffalo Human Rights Law Review
15.
45
Above
n 16.
46
Carmichele
above n 16 at para 80.