Yet another missed opportunity to develop the Common Law of Contract? An analysis of Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd [2011]ZACC 30

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dc.contributor.authorMupangavanhu, Brighton
dc.date.accessioned2015-11-19T15:49:52Z
dc.date.available2015-11-19T15:49:52Z
dc.date.issued2013
dc.description.abstractCourts are under a general obligation to develop common law by applying constitutional values as mandated by sections 8(3), 39(2) and 173 of the Constitution. There have been attempts by part of the judiciary and calls from legal commentators to develop the common law contractual doctrine of good faith. In particular, the question that has occupied judicial decision making and academic writing for some time now is whether the spirit, purport, and objects of our Constitution require courts to encourage good faith in contractual dealings or whether the Constitution insists that good faith requirements are enforceable. The Constitutional Court had an opportunity to settle this question in Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd1. This article argues that the Court wrongly decided that it was not in the interests of justice to grant leave to appeal. Consequently, the Court’s misdirection and its refusal to refer the matter to the High Court to develop common law to require parties who undertake to negotiate a new term in a lease agreement to do so reasonably and in good faith resulted in the loss of a great opportunity to develop the common law.
dc.description.accreditationDepartment of HE and Training approved list
dc.identifier.citationMupangavanhu, B. (2013). Yet another missed opportunity to develop the Common Law of Contract? An analysis of Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd [2011]ZACC 30. Speculum Juris, 27(1): 148-173
dc.identifier.issn0584-8652
dc.identifier.urihttp://hdl.handle.net/10566/1988
dc.publisherNelson R Mandela School of Law
dc.rightsSpeculum Juris is an Open Access accredited law journal
dc.subjectConstitutional court
dc.subjectConstitution of South Africa
dc.subjectCommon law
dc.subjectCommon law of contract
dc.subjectSupreme court of appeal
dc.subjectHigh court
dc.titleYet another missed opportunity to develop the Common Law of Contract? An analysis of Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd [2011]ZACC 30

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