Mohamed's Leisure Holding (Pty) Ltd v Southern Sun Hotel Interest (Pty) Ltd : a probe into a new dispensation of pacta sunt servanda in the interpretation of contract

Abstract: This research aims to explore on the contradicting decisions of the High Court and the Supreme Court of Appeal on several issues of the law, pertaining to whether a term that operates harshly on its own offends against the public policy; whether the relaxation of the pacta sunt servanda in this case would result in the court interfering with the agreement of parties; whether the court can develop the common law by infusing the spirit of Ubuntu and Good faith resulting in the invalidation of a material term i.e., the cancellation clause. This study is centred on the Supreme Court of Appeal decision of Mohamed’s Leisure Holdings (Pty) v Southern Sun Hotel Interest (Pty) Ltd. In essence, this research will articulate on whether the Constitutional abstract values can be used to relax the maxim and to what extent. In essence, my proposed study aims to explore and discuss the change in the position of landlords who wish to rely on strict application of contractual terms and the implication of subsequent and ensuing cases with regards to the application of the doctrine of pacta sunt servanda weighed against the constitutional abstract values of Ubuntu, fairness, reasonableness and the principle of good faith and public policy. In addition, this dissertation aims to examine whether the constitutional values still have a place in law, specifically in the interpretation of lease contracts. The weighing up of the doctrine of pacta sunt servanda against the principles of Ubuntu, fairness, reasonableness and public policy. Ascertaining whether in certain circumstances, the implementation of the cancellation clause contained in the agreement may manifestly be unreasonable and offend against public policy. Therefore, inevitably discussing whether a clause that insists on compliance with its provisions regardless of the circumstances, which prevented compliance, is unreasonable, unfair and contrary to public policy.LL.M. (Commercial Law