Maryna holds the BA, LLB, LLM degrees and is a Director at the Cape Town offices of STBB. She is an admitted Attorney, Notary Public and Conveyancer with many years of experience in the field of property law and conveyancing. She is also the firm's Marketing Director and attends to external publications for the firm as well as conducts ongoing training for estate agent and bankers training and is a regular seminar presenter for attorneys and property practitioners.

Property Law Update | Issue 14 – 2020

AN ESCAPE FROM CONTRACTUAL OBLIGATIONS BECAUSE THEY ARE UNFAIR?

Beadica 231 CC and Others v Trustees for the time being of the Oregon Trust and Others (CCT109 /19) [2020] ZACC 13(17 June)

In recent times, there has been increasing debate and court judgment dealing with the question whether an agreement between two reasonable business persons is at risk of being invalidated by invoking unreasonableness, unfairness and public policy considerations, viewed against the background of legal certainty and pacta sunt servanda (the principle that contracts freely entered into between parties must be honoured and, if necessary, enforced by the courts). This judgment deals with a franchisee’s application not to be evicted from premises after it failed to timeously renew a lease agreement. The Constitutional Court confirmed that contracts will generally be upheld and enforced but that the law will, in so doing, not lose sight of the fact that good faith, ubuntu and public policy all play an important role in contractual dealings.
The Judgment can be viewed here.

The Judgment
Summary of the Judgment

SELLING RIGHTS TO USE WATER IN AGRICULTURAL SECTOR

South African Association for Water User Associations and Others v Minister of Water and Sanitation and Others; CJ Lotter N.O. and Others v Minister of Water and Sanitation and Others; FGJ Wiid and Others v Minister of Water and Sanitation and Others (71913/2018; 42072/2018; 90498/2018) [2020] ZAGPPHC 252 (19 June 2020)

In the commercial agricultural sector, there existed a longstanding practice in which the holder of water rights who was not utilising the rights, or only using part of the quota, could sell to or trade such rights with a third party. This judgment deals with an application by purchasers of such rights to order the Department of Water and Sanitation to give effect to their purchase and issue the required licence, after the Director General refused to do so following on a new Directive that was issued in this regard. Ultimately the Court agreed with the Department, stating that such private sale agreements of water-use entitlements would frustrate equal access to water resources and keep historically disadvantaged persons out of the agriculture sector. The judgment has far-reaching consequence for the commercial agriculture sector and it is expected to be appealed.

The Judgment can be viewed here.

The Judgment
Summary of the Judgment