Well, both are dynamic, forced to adapt to the various scenarios that arise and it is that ability that sets them both apart and makes them the gold standard. The Bill of Rights is not static and is being developed all the time by our courts as they grapple with its interpretation and application.
Also, in the law of contract, our courts have started debating the development of the common law around the values enshrined in our Constitution, specifically the principle of Ubuntu, lived by the Blitzboks. This principle highlights the reality of human interdependence and solidarity in the interaction between people and includes ideas of humanness, social justice and fairness. The decision of the Constitutional Court judgment in Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd highlights the point where the court was receptive to the idea of developing the common law on agreements to agree and debated - but did not apply in the case - the existence of an obligation arising from Ubuntu to negotiate in good faith.
Currently, our courts do not recognise an undertaking to negotiate as enforceable. Firstly, there is no agreement and the need for legal certainty is offended. In addition, a court enforcing an agreement to agree is almost certain to run foul of the requirement that the court should not dictate the terms of the envisaged substantive contract to which it is not a party.
Very recently, the Supreme Court of Appeal had the opportunity to develop the common law by relying on the principle of Ubuntu and to impose a duty on a landlord to negotiate the renewal of a lease agreement where the parties had recorded an agreement to agree. In Roazar CC v The Falls Supermarket, Roazar argued that the Falls did not give notice to renew in terms of the agreement and Roazar could, therefore, terminate the agreement on one month’s notice. The Falls countered that the agreement could only be terminated after good faith negotiations, the agreement providing that the renewal period must be negotiated and the parties must endeavour to reach agreement on the rental, and argued the court should develop the common law.
The court was concerned that incorporating a duty to negotiate in good faith in agreements to agree would bring such uncertainty to a contract as to make it void for vagueness. The problem is clear – how will a court determine whether an offer had been made in good faith absent a readily ascertainable external standard? The court found in favour of Roazar as there was no basis to decide how long good faith negotiations should run and therefore no basis to find a breach of such a duty to negotiate, even if it accepted that such a duty existed.
So the common law position was confirmed for the time being but the Constitutional Court will now have to grapple with this issue. Like the Blitzbokke, the development goes on, the actors change, new problems emerge. A case of sport imitating life but where to now for Ubuntu?