The Application (or not) of Ubuntu in Commercial Contracts

In Roazar CC v The Falls Supermarket (232/2017) [2017] ZASCA 166 (29 November 2017) the Supreme Court of Appeal was asked to decide whether a contract can be terminated without first negotiating in good faith because of ubuntu.

The full bench held that it is not competent for a Court to import a term not intended by the parties simply based on the principle of ubuntu.

The Court held that it would be difficult to conceive how a Court, in a purely business transaction, could rely on the principle of ubuntu to import a term that was not intended by the parties and to deny the other party the right to rely on the terms of the contract. The Court thus upheld the sanctity of the contract to which the parties had consciously bound themselves. The court was concerned that incorporating a duty to negotiate in good faith in agreements to agree would bring such uncertainty to a contract as to make it void for vagueness.

In the Constitutional Court judgment in Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd the court was open to develop the common law on agreements to agree and debated – but did not apply in the case – any obligation arising from Ubuntu to negotiate in good faith.

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