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Constitutional Law

A Thought for Mandela Month – How Does Ubuntu Impact Your Legal Rights?

By | Constitutional Law, Contract

“In Africa there is a concept known as ‘ubuntu’ – the profound sense that we are human only through the humanity of others.” (Nelson Mandela)

International Nelson Mandela Day is celebrated worldwide on 18 July every year, but in South Africa the whole of July is Mandela Month.

What better time to talk about the concept of “ubuntu”, which emphasises our interconnectedness and interdependence, and embraces values like fairness, compassion, respect and dignity? 

How does ubuntu influence your legal rights? 

Our courts have often considered, and sometimes applied, the principles of ubuntu in a wide variety of legal contexts. The “it’s unfair and unjust!” defence pops up regularly (often when discussing whether something is “contrary to public policy”) in disputes of all kinds.  Asset sales, property sales, leases, neighbours’ disputes, evictions, workplace litigation, franchise agreements, criminal sentencing cases, civil claims, defamation claims, trust disputes and so on – the list truly is endless. 

For example, in 2023 the High Court refused to order the eviction of a group of tenants, despite the fact that they were in breach of their leases, on the basis that the eviction would render them homeless and thus the application for eviction was “completely devoid of any empathy for the [tenants’] living conditions. There is,” the court stressed, “in fact, no ubuntu at all.”

When is a contract unenforceable for being contrary to ubuntu?

When it comes to contracts, we have wide freedom to contract as we please, and people entering into agreements need to know with reasonable certainty that the law will help them enforce compliance with those agreements. Those principles have led our courts to confirm that the fundamental principle of “agreements must be honoured” or “you are bound by what you agree to” (“pacta sunt servanda” in lawyer speak) still underpins our law. 

As the Constitutional Court has put it, “a court may not refuse to enforce contractual terms on the basis that the enforcement would, in its subjective view, be unfair, unreasonable or unduly harsh … It is only where a contractual term, or its enforcement, is so unfair, unreasonable or unjust that it is contrary to public policy that a court may refuse to enforce it. (Emphasis added.)

In practical terms, this means that as a general rule our courts will enforce agreements entered into freely and voluntarily. But they can still be persuaded to hold a contract void and unenforceable if satisfied that it is against public policy, a concept that is measured objectively and informed by constitutional values such as ubuntu. A good example is a 2013 High Court refusal to enforce an acceleration clause in a loan agreement because of its draconian implications – it would have allowed the lender to call up in full a debt of R7.6m after the borrower had failed, through a miscalculation, to pay just R86,57 in default interest. 

Every case will be decided on its own facts and merits. That inevitably opens up grey areas, which in turn provide fertile ground for uncertainty, dispute, and litigation. So, although in practice our courts lean strongly in favour of enforcing agreements as they stand, rather be safe than sorry – the more closely your contracts of all types adhere to principles of fairness and justice, the less likely you are to see them challenged in court. (And the better you will sleep at night.)

Speak to us if you’re uncertain whether or not your contracts and other documentation will pass muster if measured against ubuntu.  

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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Braai Chain Hauled Over the Coals for Hidden Service Charges and Fined R1m

By | Constitutional Law, Consumer Law, Uncategorized

“The secret of life is honesty and fair dealing… If you can fake that, you’ve got it made.” (Groucho Marx)

We’ve all had this experience – meal over, relaxed and happy, you call for the bill and decide to reward your friendly and helpful waitron with a good tip. Only to find, on checking the bill when you get home, that the restaurant had already added a “compulsory service charge” (perhaps 10% or 15% – sometimes even more). When you challenge it, the manager points to the small print on the menu which says something like “service charge applies to tables of six or more”, or “discretionary service charge may be levied”. 

And it’s not only restaurants that engage in such shenanigans. Perhaps it’s a builder or any other service provider adding on bits and pieces to an invoice that you hadn’t noticed when you signed up with them.

Is this kind of behaviour allowed?

The devil, as always, is in the details. If the add-on was properly disclosed to you upfront, you have no legal leg to stand on. It’s up to you to check the menu, or the supplier’s website and Ts and Cs, before ordering. 

But it’s a very different story if the add-on was not properly disclosed upfront by the supplier. As a recent judgment of the National Consumer Tribunal (“the Tribunal”) shows, heavy penalties await any “supplier” (widely defined to include not only restaurants and retailers, but anyone who markets or supplies any goods or services to consumers) who breaches any of their many obligations under the CPA (Consumer Protection Act). And that includes “no hidden charges allowed”.

Being found guilty of “prohibited conduct” will be an expensive exercise. Witness the R1m administrative fine imposed recently on a fast-food chain specialising in that beloved South African tradition – braaivleis.

The braai fast-food chain and the disgruntled customer

Acting on a tip-off from a customer, the NCC (National Consumer Commission) found that a fast-food chain, specialising in “organic braai fast food” (chew on that description for a moment) with 16 outlets across Gauteng was adding a service fee over and above its advertised prices. No mention of this was advertised in its branches, on its menus, or on its website. 

Unabashed, the chain argued before the Tribunal that it was fully compliant with the CPA, that the charge was a fee “to ensure the best service to the consumer” and that there is “a transparent general practice to disclose cost structures rather than hide behind an exorbitant price model.”

The Tribunal, deeply unimpressed with this (frankly baffling) line of reasoning, found the chain guilty of prohibited conduct and gave it 90 days to pay a R1m administrative fine. 

Two breaches of the CPA 

The chain was found guilty of two contraventions of the CPA:

1. That as a supplier it “must not require a consumer to pay a price for any goods or services higher than the displayed price for those goods or services.” 

2. It must also “provide a written record of each transaction to the consumer to whom any goods or services are supplied.” This record “must include at least the following information: the address of the premises at which, or from which, the goods or services were supplied.” Without that, as the Tribunal put it, “vulnerable consumers could find it difficult to institute legal proceedings and enforce their rights.”

A R1m fine for “preying on unwitting customers for selfish financial gains”

The chain, said the Tribunal, had “acted deceitfully towards its customers and contravened the CPA’s significant provisions. It acted contemptuously towards the very consumers who supported it. 

Accordingly: “the Tribunal considers it appropriate to impose an administrative fine that will deter it and other suppliers from preying on unwitting consumers for selfish financial gains.”

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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If the Municipality Rejects Your Building Plans, Consider PAJA

By | Constitutional Law, Property

“The Constitution guarantees that administrative action will be reasonable, lawful and procedurally fair. It also makes sure that you have the right to request reasons for administrative action that negatively affects you.” (Department of Justice and Constitutional Development)

Bureaucratic decisions can and do have far-reaching consequences for us, both financially and in our personal lives. It’s good to know therefore that whenever your rights are affected by any such decision, you have access to the protections set out in PAJA (the Promotion of Administrative Justice Act).

In a nutshell, PAJA provides that “administrative decisions” by government departments, parastatals and the like must be fair, lawful and reasonable. Decision makers must follow fair procedures, allow you to have your say before deciding, and give you written reasons for their decisions when asked.

If a decision goes against you, your first step should be to use any internal appeal procedures. Ultimately you can go to court, although often a lawyer’s letter or two will solve the problem without the need for litigation.

A recent High Court decision illustrates one way in which PAJA can help you if all else fails –

A service station’s building plans rejected
  • A service station submitted to its local authority building plans for a proposed refurbishment.
  • After a series of meetings with the municipality and alterations to the plans as various issues were raised and resolved, the service station owners thought they were home and dry. But in the end the plans were not accepted on the basis that the application was for an extension of the service station which could not be approved in terms of the local Town Planning Scheme.
  • The High Court however found that factually there was no “extension” involved and that the municipality had therefore made an “error in law”.
  • That opened the door for the Court to review the municipality’s decision, which it duly set aside. In referring the decision back to the municipality for reconsideration, the Court directed it to make a decision within 21 days, and without regarding the proposed refurbishment as being an extension of the building.

A final thought – strict time limits apply with PAJA, so if a decision goes against you seek professional help without delay!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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