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From an economic point of view, the shift of focus from behaviour to structure
could go a long way to assist new market participants like your consortium
to enter concentrated sectors, boosting economic innovation and increasing
consumer choice. The draft Bill also appears to affirm the transformative vision
of economic empowerment in South Africa and aims to increase greater
participation by historically disadvantaged South Africans in the economy.

Commercial Does Ubuntu apply to contracts?

January 2018

“My business has been renting from the same landlord for over five years
without missing a payment. We lost a big contract last year, so cashflow has
been a bit tight, and caused us to be late on a rental payment. Our landlord
immediately threatened that he would evict us if it happened again. Last
month, unfortunately, we again slipped a payment and the landlord has now
started eviction proceedings. Despite that our contract allows him to do that,
I feel this is unfair as we have been a good tenant for a long time. Surely he
can’t just kick us out because of two late payments.”

In a recent eviction case involving a commercial lease agreement, a landlord
applied to the court to evict a tenant that had failed to pay its monthly rental
on time. The High Court held that the landlord was entitled to cancel the lease
agreement, but the court refused to grant an eviction order, as it was found that
it would be manifestly unreasonable, unfair and offend public policy. The court
thereby in effect imported or infused the spirit of Ubuntu and good faith with our
law of contract.

However, on appeal, the Supreme Court of Appeal found the High Court
decision to be wrong and held that it was impermissible for the High Court to
have developed the common law of contract by infusing the spirit of Ubuntu
and good faith so as to nullify the enforceability of the eviction clause in the
rental contract.
As it now stands, it appears that principles of Ubuntu have no place in the
interpretation of a commercial contract. But, as this relates to constitutional
aspects, our Constitutional Court will probably have the final say on this matter,
particularly as the above eviction matter has been referred to the Constitutional
Court.

If one looks at previous decisions of the Constitutional Court, it has been held
by the Constitutional Court, albeit in a criminal matter, that Ubuntu has become
an integral part of our constitutional values and that Ubuntu regulates the

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