Brisley v Drotsky (432/2000) [2002] ZASCA 35; 2002 (4) SA 1 (SCA); 2002 (12) BCLR 1229 (SCA) (28 March 2002)

Brisley v Drotsky (432/2000) [2002] ZASCA 35; 2002 (4) SA 1 (SCA); 2002 (12) BCLR 1229 (SCA) (28 March 2002)

The Supreme Court of Appeal reaffirmed the Shifren principle, holding that a non-variation clause in a written contract is binding and precludes any oral amendment unless the prescribed formalities are met. The court rejected the argument that considerations of good faith or public policy justified refusing enforcement of the clause, finding that good faith is not an independent ground to override clear contractual terms. The court further held that section 26(3) of the Constitution requires a court to consider all relevant circumstances before granting an eviction order, but does not confer a discretion to refuse eviction where the owner is otherwise entitled and no statutory or...

Citation
[2002] ZASCA 35
Parties
Appellant: Madelein Brisley; Respondent: Antoinette Drotsky
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 March 2002
Case Number
432/2000
Procedural Posture
Civil Appeal / Appeal From the Transvaal Provincial Division, With Leave of the Court a Quo
Judges
Harms, Olivier, Streicher, Cameron, Brand
Legal Topics
Non Variation Clause, Pacta Sunt Servanda, Good Faith in Contract, Eviction, Section 26 Constitution, Public Policy
Land and Property Civil Procedure Constitutional Law Non Variation Clause Pacta Sunt Servanda Good Faith in Contract Eviction Section 26 Constitution +1 more

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Parties

Madelein Brisley

Appellant

Antoinette Drotsky

Respondent

Procedural Posture

Civil Appeal / Appeal From the Transvaal Provincial Division, With Leave of the Court a Quo

Legal Issues

  1. 1 Whether the Shifren principle regarding non-variation clauses in written contracts should be departed from or upheld.
  2. 2 Whether considerations of good faith and public policy justify refusing enforcement of a non-variation clause.
  3. 3 Whether section 26(3) of the Constitution requires a court to refuse an eviction order in the circumstances of this case.

Ratio Decidendi

The Supreme Court of Appeal reaffirmed the Shifren principle, holding that a non-variation clause in a written contract is binding and precludes any oral amendment unless the prescribed formalities are met. The court rejected the argument that considerations of good faith or public policy justified refusing enforcement of the clause, finding that good faith is not an independent ground to override clear contractual terms. The court further held that section 26(3) of the Constitution requires a court to consider all relevant circumstances before granting an eviction order, but does not confer a discretion to refuse eviction where the owner is otherwise entitled and no statutory or...