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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 exercise of rights through the emphasis it lays on sharing the co-
responsibility and the mutual enjoyment of rights by all.
Commercial 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
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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