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exercise of rights through the emphasis it lays on sharing the co-responsibility
and the mutual enjoyment of rights by all. But, how far our courts will go in
developing the common law to allow for the mutual enjoyment of rights is yet
to be seen. It is a well-established understanding in our law that even though
a contract or some of its terms may offend one’s individual sense of propriety
and fairness, it does not automatically make that contract contrary to public
policy. Our courts have also always been of the firm view that courts should be
careful in developing the common law, as it could lead to uncertainty in private
commercial contracts.
Our Constitutional Court has had occasion to consider whether the common
law should be developed to include Ubuntu. Although, the Constitutional Court Commercial
avoided having to finally decide on the matter as it was decided that the
constitutional issues were incorrectly raised, it is interesting to note a minority
judgement by Judge Yacoob which makes mention that our common law has
been infused with constitutional values and these values include Ubuntu, which
requires that people should deal with each other in good faith. Whether this is
an indication of the direction the Constitutional Court will go in deciding on the
place of Ubuntu in commercial contracts, we will have to wait and see.

For the moment, the position of our Supreme Court of Appeal is that Ubuntu
cannot be applied in commercial contracts and that parties should not place
reliance on this when reviewing their commercial contracts. It also means that,
until the Constitutional Court possibly rules to allow such arguments, if your
landlord is acting in accordance with the rental contract, you cannot prevent
him from doing so by raising an argument of unfairness or contrary to Ubuntu.

Our advice is to seek the help of an attorney to advise whether your landlord
is entitled to immediately evict and whether there are any provisions in the
contract which may mitigate such eviction.

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