Brisley v Drotsky [2002] ZASCA 29.

In the case of Madelein Brisley vs. Antoinette Drotsky, the core issue revolved around a dispute concerning a rental agreement and its subsequent amendments, set against the backdrop of the South African legal principles governing contracts, specifically the Shifren principle, the bona fides (good faith) principle in contract law, and the constitutional right to housing under section 26(3) of the South African Constitution.

1. Rental Agreement: Madelein Brisley (the appellant) entered into a written rental agreement with Antoinette Drotsky (the respondent) to rent a townhouse. According to the agreement, the rent was set at R3500,00 per month, payable in advance on the first day of each month.

2. Payment Issues: From the outset, Brisley did not adhere to the stipulated payment schedule. By January 31, 2000, she had not fully paid the rent for January, leading Drotsky to cancel the lease and grant Brisley a fourteen-day grace period to vacate the premises.

3. Legal Proceedings: Drotsky initiated legal proceedings to evict Brisley, who employed various delay tactics throughout the process. Brisley's defense evolved over time, initially claiming a later oral agreement that allowed her to pay rent at her convenience within the month for the first six months. She also claimed estoppel, arguing that Drotsky had implied she could pay late, and cited expenses for sewer repairs as a reason for partial payment in January.

4. Shifren Principle: Central to the case was the Shifren principle, which holds that a clause in a written contract stipulating that any amendments to the contract must meet specific formalities (in this case, written and signed by both parties) is binding. This principle was challenged by Brisley, who argued for its reconsideration based on the bona fides principle and the constitutional right to housing.

5. Bona Fides and Constitutional Arguments: Brisley's defense expanded to include arguments based on the bona fides principle in contract law, suggesting that enforcing the contract as written would be unfair and in bad faith. Additionally, she invoked section 26(3) of the Constitution, which protects individuals from being evicted from their homes without a court order that considers all relevant circumstances.

6. Court's Decision: The High Court initially ruled in favor of Drotsky, granting an eviction order. Brisley appealed this decision, leading to the case being heard by the Supreme Court of Appeal.

The case thus presented the Supreme Court of Appeal with the opportunity to examine the interplay between established contract law principles, the evolving understanding of good faith in contractual relationships, and constitutional rights related to housing.

The ratio decidendi of the case between Madelein Brisley and Antoinette Drotsky revolves around several core legal principles:

1. Shifren Principle Upheld: The court reaffirmed the Shifren principle, which states that a clause in a written contract stipulating that no amendments or variations to the contract are valid unless they are in writing and signed by both parties is binding. This principle was upheld despite arguments against it based on the bona fides (good faith) principle and constitutional considerations. The court emphasised the importance of contractual certainty and the parties' freedom to impose formalities on themselves to prevent disputes.

2. Bona Fides in Contract Law: The court discussed the role of bona fides (good faith) in contract law, acknowledging its significance as an underlying ethical value that informs the substantive law of contract. However, the court clarified that bona fides does not grant the judiciary a general discretion to invalidate contracts based on subjective notions of fairness or good faith. Instead, bona fides operates through more concrete legal doctrines and rules, and its application must be mediated by these established principles.

3. Constitutional Right to Housing: Regarding section 26(3) of the Constitution, which protects individuals from being evicted from their homes without a court order that considers all relevant circumstances, the court found that this provision does apply to private disputes between individuals. However, in the context of this case, the court determined that the relevant circumstances did not preclude the granting of an eviction order. The court emphasized that while the Constitution requires consideration of all relevant circumstances in eviction cases, it does not automatically prevent eviction in every case.

4. Contractual Autonomy and Public Policy: The court highlighted the balance between contractual autonomy and public policy, as informed by constitutional values. While the Constitution and its values may influence the development of contract law, they do not undermine the principle of pacta sunt servanda (agreements must be kept). The court stressed the importance of maintaining a balance between protecting contractual freedom and ensuring that contracts do not violate constitutional values or public policy.

In summary, the ratio decidendi of the case is that the Shifren principle remains valid and enforceable, that bona fides in contract law must be applied within the framework of established legal doctrines, and that the constitutional right to housing does not automatically invalidate eviction orders in private disputes, provided that all relevant circumstances are considered.

In its reasoning process, the court referred to several key cases to support its conclusions and legal principles. Here are some of the cases cited, along with their neutral citations where available:

1. SA Sentrale Ko-Op Graanmaatskappy Bpk v Shifren en Andere (1964): This is the foundational case for the Shifren principle, which holds that clauses in contracts stating that no amendments or variations are valid unless in writing and signed by both parties are binding. While this case does not have a neutral citation due to its age, it is a pivotal reference point for discussions on the enforceability of non-variation clauses in contracts.

2. Pharmaceutical Manufacturers Association of SA and Another: In re Ex Parte President of the Republic of South Africa and Others [2000] ZACC 1. This Constitutional Court case emphasized that all law, including the common law, derives its force from the Constitution and is subject to constitutional control.

3. Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) [2001] ZACC 22. This case highlighted the courts' obligation to develop the common law in the light of the spirit, purport, and objects of the Bill of Rights.

4. Sasfin (Pty) Ltd v Beukes (1989): This case discussed the limits of contractual sanctity at the borders of public policy, which is now rooted in the Constitution and the fundamental values it enshrines. The neutral citation for this case is not available due to its age.

5. Magna Alloys and Research (SA) (Pty) Ltd v Ellis (1984): This case dealt with agreements that limit commercial freedom and established that the test for enforceability is the public interest. Like the Shifren case, it does not have a neutral citation.

6. Government of the Republic of South Africa and Others v Grootboom and Others [2000] ZACC 19. This Constitutional Court case is significant for its interpretation of the right to housing under section 26 of the Constitution and its implications for both the state and private parties.

These cases collectively support the court's reasoning on the principles of the Shifren rule, the role of bona fides in contract law, the application of constitutional values to the common law, and the consideration of public policy and constitutional rights in contractual disputes.