Sunday, August 19

Fairness and justice should be foundation for deals

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Justice Zac Yacoob answered three questions during Sapoa’s annual conference

Fairness and justice was a recurring theme at Sapoa’s recent annual conference, with these principles not only recommended as the best on which to decide appropriate prices for expropriated land, but the foundation on which all property transactions should be based. During a question-and-answer session, a lawyer had the following three questions for Justice Zac Yacoob:

  1. What do you say to a property owner who has a tenant or occupier that claims their eviction is against the spirit of ubuntu? 
  2. Are we now in a situation where certainty or sanctity of contract is being over-ridden by concepts that are not as clear at the moment? 
  3. How does the property owner get comfort that the infusion of the constitution’s principals into the law of contract are not going to remove what is known as sanctity of contract law and therefore cause legal uncertainty in the legal world? 

Yacoob’s response was: “Firstly it is a misnomer that there was ever certainty in contract. Before 1994, the number of disputes on property and contract that went to the court was amazing.

The appellate division has heard many, many cases in relation to contract because when you use language – language which in a different context can have a different meaning – and you take into account intention, and the morality of the community, there has never been any certainty in contract. You just look at the law report and you will understand this

. “Yes it is true the regime is different (but not necessarily more uncertain) because now what we have to infuse in contract work is fairness and justice. To my mind there is nothing wrong in saying to our society and to all contractors: ‘You make your contract and you operate your contract in terms of what you think is fair and just.’

Hopefully we will develop a common understanding of what is fair and just, and thereby reduce the court cases. “Contracts were never certain before, that law was always subject to debate. But for now, justice and fairness is a very good innovation into the contractual world.

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