I
,RM1501 October/November PORTFOLIO (CO
MPLETE ANSWERS) Semester 2 2025 - D
UE 14 October 2025 ; 100% c
QUESTION ONE
The case of Everfresh Market Virginia (Pty) Ltd v Shoprite
Checkers (Pty) Ltd 2012 (1) SA 256 (CC) is a landmark decision
that illustrates how transformative constitutionalism shapes the
development of South African contract law. Transformative
constitutionalism refers to the idea that the Constitution is not
a static document but a living framework that should guide
legal interpretation in a way that transforms society from one
marked by inequality, exclusion, and rigid formalism into one
based on fairness, dignity, and substantive equality. The
Constitutional Court in Everfresh had to consider whether a
clause in a lease agreement that required the parties to
negotiate in good faith could be enforced, and whether
constitutional values should influence the interpretation of such
clauses.
The facts of the case were straightforward. Everfresh Market
Virginia was a tenant renting commercial premises from
Shoprite Checkers under a written lease agreement. The lease
contained a renewal clause giving Everfresh the option to
extend the lease for an additional five years, provided that the
parties would negotiate the rental terms “in good faith.” When
, the time came for renewal, Everfresh attempted to exercise this
option. Shoprite, however, refused, contending that the
renewal clause was not enforceable because it was vague and
amounted to no more than an agreement to agree. The lower
courts accepted this argument, holding that South African
contract law did not generally recognise a duty to negotiate in
good faith.
The legal question before the Constitutional Court was
therefore whether the obligation to negotiate in good faith
should be enforceable, and if so, whether the Constitution
required courts to develop the common law of contract
accordingly. Everfresh argued that the common law should be
developed in line with constitutional values such as fairness,
dignity, and ubuntu, which would justify enforcing the renewal
clause. Shoprite, on the other hand, maintained that traditional
contract law principles did not permit such enforcement.
In its reasoning, the Constitutional Court stressed that the
Constitution has a transformative role in shaping all areas of the
law, including private law relationships such as contracts. Justice
Yacoob, writing for the Court, emphasised that contract law
should not be divorced from constitutional values. He
highlighted the importance of good faith as a foundational
principle of contract, one that resonates strongly with the
constitutional values of fairness, equality, and ubuntu. The
Court acknowledged that recognising a duty to negotiate in
,RM1501 October/November PORTFOLIO (CO
MPLETE ANSWERS) Semester 2 2025 - D
UE 14 October 2025 ; 100% c
QUESTION ONE
The case of Everfresh Market Virginia (Pty) Ltd v Shoprite
Checkers (Pty) Ltd 2012 (1) SA 256 (CC) is a landmark decision
that illustrates how transformative constitutionalism shapes the
development of South African contract law. Transformative
constitutionalism refers to the idea that the Constitution is not
a static document but a living framework that should guide
legal interpretation in a way that transforms society from one
marked by inequality, exclusion, and rigid formalism into one
based on fairness, dignity, and substantive equality. The
Constitutional Court in Everfresh had to consider whether a
clause in a lease agreement that required the parties to
negotiate in good faith could be enforced, and whether
constitutional values should influence the interpretation of such
clauses.
The facts of the case were straightforward. Everfresh Market
Virginia was a tenant renting commercial premises from
Shoprite Checkers under a written lease agreement. The lease
contained a renewal clause giving Everfresh the option to
extend the lease for an additional five years, provided that the
parties would negotiate the rental terms “in good faith.” When
, the time came for renewal, Everfresh attempted to exercise this
option. Shoprite, however, refused, contending that the
renewal clause was not enforceable because it was vague and
amounted to no more than an agreement to agree. The lower
courts accepted this argument, holding that South African
contract law did not generally recognise a duty to negotiate in
good faith.
The legal question before the Constitutional Court was
therefore whether the obligation to negotiate in good faith
should be enforceable, and if so, whether the Constitution
required courts to develop the common law of contract
accordingly. Everfresh argued that the common law should be
developed in line with constitutional values such as fairness,
dignity, and ubuntu, which would justify enforcing the renewal
clause. Shoprite, on the other hand, maintained that traditional
contract law principles did not permit such enforcement.
In its reasoning, the Constitutional Court stressed that the
Constitution has a transformative role in shaping all areas of the
law, including private law relationships such as contracts. Justice
Yacoob, writing for the Court, emphasised that contract law
should not be divorced from constitutional values. He
highlighted the importance of good faith as a foundational
principle of contract, one that resonates strongly with the
constitutional values of fairness, equality, and ubuntu. The
Court acknowledged that recognising a duty to negotiate in
