CCT105/10

[2011] ZACC 30

2012 (1) SA 256 (CC)

2012 (3) BCLR 219 (CC)

Moseneke DCJ Majority judgment

Yacoob J dissenting judgment

10 May 2011

17 November 2011

http://hdl.handle.net/20.500.12144/3634

Application for leave to appeal against a judgment of the Pietermaritzburg High Court: Shoprite Checkers (Pty) Limited v Everfresh Market Virginia (Pty) Limited, Case No. 6675/09, KwaZulu-Natal High Court, Pietermaritzburg, 25 May 2010 as yet unreported

Application for leave to appeal concerning the Court’s power to develop the common law in terms of section 39(2) of the Constitution. The Court was asked to develop the law of contract so as to enforce a term in a lease agreement for the parties to negotiate a new rental in good faith. The majority held that where applicants seek to change common law rules under the Constitution, they must plead their case in the High Court to allow the other party a fair opportunity to respond. Only in rare and exceptional cases should a development of the common law be pleaded in a court of appeal for the first time. The majority found that the applicant had failed to provide reasons that would justify it being in the interests of justice for the matter to be heard despite it not having set out a case for the development of the common law in the High Court. The appeal was dismissed. The minority judgment held that the importance of infusing contract law with the values of the Bill of Rights was such that the High Court ought itself to have taken the initiative to develop the common law to deal with the factual dispute before it. It therefore would have been appropriate for the matter to be referred back to the High Court to consider the development of the law. Majority: Moseneke DCJ (Ncgobo CJ, Cameron J, Jafta J, Khampepe J, Nkabinde J and Van der Westhuizen J concurring). Dissent: Yacoob J (Froneman J, Mogoeng J and Mthiyane AJ concurring). 424