The Role Of The Principles Of Good Faith And Ubuntu In The Law Of Contract

• Published date: 31 May 2022
• Law Firm: Fasken
• Author: Ms Bianca Da Costa, Andricia Hinckemann and Barr-Mary Tyzack

Historically, the roles of fairness, reasonableness and good faith in the law of contract have been the subject of debate; one of the most controversial issues is whether a court can refuse to enforce a valid contract if it considers that the enforcement would be unfair, unreasonable, or unduly harsh. In light of this, our courts have developed principles governing the enforcement of contracts, through principles such as good faith and ubuntu.

In the distinguishable case of S v Makwanyane and Another1995 (3) SA 391 (CC) 484, the Constitutional Court explains ubuntu as humaneness, personhood and morality. Metaphorically, it expresses itself in umuntu ngumuntu ngabantu, describing the significance of group solidarity on survival issues so central to the survival of communities. The court stresses that the spirit of ubuntu "...emphasises respect for human dignity, marking a shift from confrontation to conciliation..."

Since the advent of the constitutional dispensation, the principle of good faith now derives its force from the Constitution and the values enshrined within it. These values include human dignity, the achievement of equality and the advancement of human rights and freedoms, and the rule of law. Incorporated into our law as a constitutional value is the principle of ubuntu; ubuntu in turn, informs the principle of public policy.

HM Du Plessis, a senior lecturer in the University of South Africa...