The “traditionalists” have, at least until fairly recently, advanced the notion that the doctrine of pacta servanda sunt is the pre-dominant principle to be applied in determining the enforceability of a term in a contract and that the concept of fairness as a self-standing requirement, has at best, a limited role to play.
The Romans developed the exceptio doli generalis which provided a general defence based on equity. However, in Roman Dutch law it is at least uncertain whether the exceptio appears to have played a part. South African law in the twentieth century shows that in general, the Courts have steered away from upholding or striking down clauses in a contract on the basis of equity.
More recent judicial thinking has made it clear that the struggle to exclude equity has been a contrivance. The freedom to contract is one thing, very important as a constitutional principle, but of equal significance is the principle of Ubuntu, which embraces equity and fairness.
In the matter of Weinerlein v. Goch Buildings Limited 1925 AD 282, Kotze JA quoted from a judgment of De Villiers CJ in the matter of Mills and Sons v Benjamin Brothers (1876, Buch. at 121) as follows: “Now it is quite true that this Court is a Court of Equity only so far as it is consistent with the principles of Roman Dutch Law.” Kotze JA added “This qualification is of importance, for equity cannot and does not override a clear provision of our law. Our common law, based to a great extent on the civil law, contains many an equitable principle; but equity as distinct from and opposed to the law, does not prevail with us. Equitable principles are only of force in so far as they have become authoritatively incorporated and recognised as rules of positive law. It is true that the Roman jurist lays down in omnibus sed valde maxime in jure aequitas spectanda sit (in all affairs indeed, but principally in those which concern the administration of justice, equity should be regarded) (Dig. 50.17.90); but as Broekhorst and other civilians, who have written special commentaries on this particular title, point out, where the law in a particular instance is clear it must be observed, although it may seem to be contrary to consideration of equity. Hence it is a maxim with the commentators that non omne quod licitum honestum est (What is permissible is not always honourable).” (own emphasis)
This approach culminated in the Appellate Division decision in Bank of Lisbon and South Africa Limited v. De Ornelas and Another 1988 (3) SA 580 (A). Joubert JA at 595D traced the genesis of the exception doli generalis in Roman law and noted that “(t)he object of the exceptio doli generalis was equitable, viz to ameliorate the harshness of the plaintiff’s claim based on a negotium stricti iuris.”
Papinian D 44.4.12 is quoted by Joubert JA at 600F to have expressed the principle as it existed in Roman law as follows: “(a) person who can impede an action by the equity of a defence, is protected by the exception doli.”
Joubert JA then proceeded at 605H-I to trace the application of the exceptio in Roman Dutch law and came to the conclusion at 606A that “(t)he exceptio doli generalis, in my judgment, was never part of Roman Dutch law” …(e)quity could not override a clear rule of law” and at 606D “(m)oreover, I cannot find any support in Roman Dutch law for the proposition that in the law of contract an equitable exception or defence, similar in effect to the exception doli generalis, was used under the aegis of bona fides.”
Joubert JA then appeared to brush over the apparent assumption of the applicability of the exceptio doli in the judgment of Tindall JA in Zuurbekom Ltd v. Union Corporation 1947 (1) SA 514 (A) at 536-7 and in the judgment of Jansen JA in Paddock Motors (Pty) Ltd v. Igesund 1976 (3) SA 16 (A) at 27 and came to the following conclusion at 607B:
“All things considered, the time has now arrived, in my judgment, once and for all, to bury the exception doli generalis as a superfluous, defunct anachronism. Requiescat in pace.”
But equity, being the all-pervading core of human existence that it is, that was not to be.
Just a year later, the tricky concept of equity again reared its head. The then Appellate Division, having roundly denounced the existence of the exceptio doli in De Ornelas in 1988, re-established in 1989 the thin end of the equity wedge in the evaluation of contractual terms with the decision in Sasfin (Pty) Ltd v. Beukes 1989 (1) SA 1 AD.
Clearly struck by the overwhelmingly unfairness of a deed of cession which gave the appellant control over the respondent’s earnings, deprived him of his income and rendered him effectively in “the position of a slave” it was held at 15E that “an agreement having this effect is clearly unconscionable and incompatible with the public interest,” and therefore contrary to public policy, was “grossly exploitative” and offended “against the public mores to such an extent that it should be struck down..”
Even before the pronouncements in De Ornelas, the Appellate Division in Magna Alloys and Research (SA) (Pty) Ltd v. Ellis 1984 (4) SA 874 (A) at 9E-F and 9G-H had already recognised, in the context of a restraint of trade, that whilst public policy demands “utmost freedom of contract”, public policy equally required that a Court “should properly take into account the doing of simple justice between (persons)”.
One can but wonder how De Ornelas could logically follow Magna Alloys. The established thinking in Magna Alloys, readily adopting the principles of public policy in considering contractual provisions in relation to restraints of trade, should have induced the Court in De Ornelas to apply the same principles more widely to contracts in general.
In Brisley v Drotsky 2002 (4) SA 1 (SCA) at paragraph 94 it was stated that :-
“Contractual autonomy is part of freedom. Shorn of the obscene excesses, contractual autonomy informs the constitutional value of dignity...This requires that its values be employed to achieve a careful balance between the unacceptable excesses of contractual 'freedom', and securing a framework within which the ability to contract enhances rather than diminishes our self-respect and dignity.”
In South African Forestry Co Ltd v. York Timbers Ltd 2005 (3) SA 323 (SCA) the SCA, per Brand JA expressed himself as follows:
“Although abstract values such as good faith, reasonableness and fairness are fundamental to our law of contract, they do not constitute independent substantive rules that courts can employ to intervene in contractual relationships. These abstract values perform creative, informative and controlling functions through established rules of the law of contract. They cannot be acted upon by the courts directly. The acceptance of the notion that judges can refuse to enforce a contractual provision merely because it offends their personal sense of fairness and equity, will give rise to legal and commercial uncertainty.”
In Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA) Brand JA further stated at paragraph 16:
“In matters of contract, for example, this court has turned its face against the notion that judges can refuse to enforce a contractual provision purely on the basis that it offends their personal sense of fairness and equity.”
However, in Barkhuizen v. Napier 2007 (5) SA 323 CC the Constitutional Court considered the alleged unconstitutionality of a time limitation clause in a short-term insurance contract which allowed only 90 days for legal proceedings to be instituted after a claim had been repudiated. The majority judgment of the Court determined that the direct application of the Bill of Rights was not correct and that instead, it should be applied indirectly by means of considerations of public policy. Public policy is deeply rooted in the constitution and its underlying values and accordingly the Court held at paragraph 30 that “the proper approach to the constitutional challenge to contractual terms is to determine whether the term challenged is contrary to public policy as evidenced by the constitutional values, in particular, those found in the Bill of Rights.”
Public policy refers to “notions of fairness, justice and reasonableness,” incorporates considerations of “simple justice between individuals” and is underpinned by the concept of Ubuntu. The Court, at paragraph 57, emphasized that public policy requires contractual obligations which have been freely and voluntarily undertaken, to be valuedbecause the time-honoured principle of pacta servanda sunt is a “profoundly moral principle on which the coherence of any society relies” which “gives effect to the central constitutional value of freedom and dignity. Self-autonomy, or the ability to regulate one’s own affairs, even to one’s own detriment, is the very essence of freedom and a vital part of dignity.”
The Court in Barkhuizen at paragraphs 56 – 58 laid down a two-stage enquiry:
Firstly, the Court must enquire whether the clause itself is self-evidently unreasonable. Secondly, if the clause is reasonable, the Court must enquire whether it should be enforced in the light of the circumstances which prevented compliance with the time-limitation clause. At Paragraph 69 the Court held that the onus is on the party seeking to avoid the enforcement of the clause to “demonstrate why its enforcement would be unfair and unreasonable in the given circumstances.”
In the case of Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC) the Constitutional Court reiterated the position in Barkhuizen and held the following at paragraph 71:
“Indeed, it is highly desirable and in fact necessary to infuse the law of contract with constitutional values, including values of Ubuntu, which inspire much of our constitutional compact. On a number of occasions in the past this court has had regard to the meaning and content of the concept of Ubuntu. It emphasises the communal nature of society and 'carries in it the ideas of humaneness, social justice and fairness' and envelopes 'the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity'.”
Malcolm Wallis, in his article Commercial certainty and constitutionalism: Are they compatible? 2016 SALJ 545 emphasised the need for “reasonable certainty” in commercial transactions and that “(a)t the heart of these developments has always lain the basic premise that commercial transactions, freely and honestly entered into and not vitiated by fraud, misrepresentation, duress or public policy, should be respected and enforced. The principle that contracts should be enforced is an international one. Expressed as pacta servanda sunt it may be clothed in what Edward Gibbon is said to have called ‘the decent obscurity of a learned language, but that should not preclude us from applying it.” (underlining added)
This article followed fairly closely on the heels of the Constitutional Court judgment in Botha v. Rich 2014 (4) SA 124 (CC) (referred to more fully below under the umbrella of the application of the Conventional Penalties Act No 15 of 1962), which Wallis described as “(o)ne problematic decision…”
But the attempt to cling to ‘certainty’ as a basis for excluding or limiting the role of Ubuntu or fairness has within it the seeds of its own destruction because Wallis himself recognises that public policy is an established ground which may result in a contract or term be vitiated. As soon as this recognition takes place, the process of reasoning takes one back to the starting point that depends upon the assessment and understanding of the scope and limitations of public policy by one or more Judge(s).
The accommodating, public policy approach of the Constitutional Court in Botha v. Rich in 2014 did not find favour in the matter of Afrox Healthcare Bpk v. Strydom 2002 (6) SA 21 (SCA) in which the SCA upheld a clause in an agreement exempting a hospital from negligence.
It is clear from the above that the principle of Ubuntu has been developed despite some resistance, throughout the years and this has eventually led to the recent and well-known decision of Beadica 231 CC v Trustees of the time being of the Oregon Trust 2020 (5) SA 247 CC which cemented the position of the Constitutional Court on the need to infuse the communitarian and the constitutional value of Ubuntu into South African contract law.
In Beadica the Constitutional Court was confronted with an issue regarding the proper constitutional approach to the judicial enforcement of the terms of a contract on the grounds of public policy. In addressing the issue the Constitutional Court restated its position that public policy is informed by the concepts of reasonableness, good faith, and fairness. The Constitutional Court furthermore indicated that the concepts of reasonableness, good faith and fairness are embodied in the constitutional value of Ubuntu. Re-echoing the essence and significance of the concept of Ubuntu in the constitutional and contract law jurisprudence in South Africa, Victor AJ expressed the opinion that:
“Ubuntu is not a constitutional value that must hover on the marginal boundaries of our jurisprudence…it is an important part of our constitutional jurisprudence, which is already embedded as a substantive value in the core values of our constitution…Ubuntu, together with other underlying values, such as fairness and justice, is one of the central values of our jurisprudence when generally adjudicating fairness in contract.”
Theron J in Beadica, analysed the historical development of the principles of good faith dating back to Roman Law and then came to the following conclusion:
“The impact of the constitution on the enforcement of contractual terms through the determination of public policy is profound. A careful balancing exercise is required to determine whether a contractual term, or its enforcement, would be contrary to public policy. As explained by the Supreme Court of Appeal in Barkhuizen SCA and endorsed by this Court in Barkhuizen, the constitution requires that Courts achieve a balance that strikes down the unacceptable excesses of freedom of contract, while seeking to permit individuals the dignity and autonomy of regulating their own lives.”
“ It is clear that public policy imports values of fairness, reasonableness and justice. Ubuntu, which encompasses these values, is now also recognised as a constitutional value, inspiring our constitutional compact, which in turn informs public policy. These values form important considerations in the balancing exercise required to determine whether a contractual term, or its enforcement, is contrary to public policy.
“ Whilst these values play an important role in the public policy analysis they also perform creative, informative and controlling functions in that they underlie and inform the substantive law of contract. Many established doctrines of contract law are themselves the embodiment of these values.
“ In addition, these values play a fundamental role in the application and development of rules of contract law to give effect to the spirit, purport and objects of the Bill of Rights. Courts are bound by Section 39 (2) of the Constitution to promote the spirit, purport and objects of the Bill of Rights when developing the common law. When the common law deviates from the spirit, purport and objects of the Bill of Rights, the courts are mandated to develop it in order to remove that deviation. In addition, courts must not lose sight of the transformative mandate of our constitution. Transformative adjudication requires the court to “search for substantive justice, which is to be inferred from the foundational values of the constitution … that is the injunction of the constitution – transformation.”
Theron J carefully endorsed as the first principle that pacta servanda sunt must be given effect to as one of the “central constitutional values of freedom and dignity” but cautioned as follows:
“ However, the pre-constitutional privileging of pacta sunt servanda is not appropriate under a constitutional approach to the judicial control of enforcement of contracts. Prior to our constitutional era in Wells (Wells v South African Alumenite Company 1927 AD 69) the Appellate division cited an English authority to the effect that –
“(i) if there is one thing, which is more than another, public policy requires, it is that [individuals] of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred and enforced by the courts.”
“ In our new constitutional era, pacta sunt servanda is not the only, nor the most important principle informing the judicial control of contracts. The requirements of public policy are informed by a wide range of constitutional values. There is no basis for privileging pacta sunt servanda over other constitutional rights and values. Where a number of constitutional rights and values were implicated, a careful balancing exercise is required to determine whether enforcement of the contractual terms would be contrary to public policy in the circumstances.” (own emphasis)
The court went on to analyse at paragraph 88 the supposed requirement of “perceptive restraint” which it stated had been “repeatedly espoused by the Supreme Court of Appeal” according to which the court must exercise “perceptive restraint, when approaching the task of invalidating or refusing to enforce contractual terms.”
Theron J instead noted as follows:
“ However, courts should not rely upon this principle of restraint to shrink from their constitutional duty to infuse public policy with constitutional values. Nor may it be used to shear public policy of the complexity of the value system created by the constitution … accordingly the “perceptive restraint” principle should not be blithely invoked as a protective shield for contracts that undermine the very goals that our constitution is designed to achieve.”
In applying these legal principles to the particular facts in Beadica, the Constitutional Court nevertheless proceeded to find that the applicants had failed to make out a case justifying relief.
The unifying effect of the judgment of the Constitutional Court in Beadica is expressed no better than by Brand JA in his 2021 Acta Juridica article (2021 Acta Juridica 141). Brand JA traces the history of the debate concerning equity as compared with certainty in the law of contract and culminates in his welcoming of the Beadica judgment:
“The majority judgment (in Beadica) was written by Theron J and – if I may be allowed to say so – it is a judgment distinguished by its admirable progression of reasoning and clear expression of thought.”
And then in conclusion:
“Now that the Constitutional Court has finally determined the debate about the role of fairness, equity, good faith and Ubuntu in contract law, we can shift the focus of our research to the establishment of guide lines and parameters for the implementation of the doctrine of public policy in contract law. Our exciting challenge is, after all, to promote both certainty and equity in our contract law, and not to favour one at the expense of the other.
The importance of Ubuntu was echoed in Georgiou NO and Others v Blacktrade (Pty) Ltd t/a Boss Fabrics 2022 JDR 1628 (FB) wherein the Court held at paragraph 8 that the principle of Ubuntu forms the core of contracts. This was confirmed in the case of University of the Free State v Christo Strydom Nutrition (CSN) 2022 JDR 2054 (FB) at paragraph 13.
In Firstrand Bank Limited v Nel 2022 JDR 2393 (GJ) the Court held at paragraph 48 that the principle of Ubuntu encompasses the concepts of reasonableness and justice, which values can give rise to a determination of whether a contractual term or its enforcement is contrary to public policy.
The Constitutional Court further held in Fujitsu Services Core (Pty) Limited v Schenker South Africa (Pty) Limited 2023 JDR 2332 (CC) at paragraph 77 that Barkhuizen and Beadica are milestones in the history of the South African law of contract. The Constitutional Court further held that “this Court established principles of fairness, reasonableness, justice and ubuntu, and found that these constitutional values play a fundamental role in the application and development of the rules of contract law in such a manner as to give effect to the spirit, purport and objects of the Bill of Rights. The important constitutional issue of public policy should not be lost or diluted by a straitjacketed approach which borders on a narrow interpretation of contracts.”
The unreported decision in the matter of Ndebele and Another v. Industrial Development Corporation of South Africa (21687/2021)  ZAGPJHC 822 (25 July 2023) is a reminder of the difficult, sometimes stuttering path that the application of the principle of Ubuntu will have in the years ahead. As Brand JA has said, the task now is to develop the matrix of judicial tests that will facilitate a consistent application of the principle.
PUBLIC POLICY IN FOREIGN JURISDICTIONS
A brief analysis of the role of equity in the law of contract in foreign jurisdictions provides the comfort that the principle appears to enjoy widespread application.
In Patel v Mirza  UKSC 42 the United Kingdom Supreme Court addressed the significance of public policy in contract law at paragraph 120 as follows:
“The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do not arise for consideration in this case). In assessing whether the public interest would be harmed in that way, it is necessary a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, b) to consider any other relevant public policy on which the denial of the claim may have an impact and c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts. Within that framework, various factors may be relevant, but it would be a mistake to suggest that the court is free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate.”
Similarly, Canadian Law emphasises the importance of good faith in contractual performance which was expressed by the Supreme Court of Canada in the case of Bhasin v. Hrynew, 2014 SCC 71,  3 S.C.R. 494 at paragraphs 59, 64, 65 and 66 as follows:
“Canadian common law in relation to good faith performance of contracts is piecemeal, unsettled and unclear. Two incremental steps are in order to make the common law more coherent and more just. The first step is to acknowledge that good faith contractual performance is a general organizing principle of the common law of contract which underpins and informs the various rules in which the common law, in various situations and types of relationships, recognizes obligations of good faith contractual performance. The second step is to recognize, as a further manifestation of this organizing principle of good faith, that there is a common law duty which applies to all contracts to act honestly in the performance of contractual obligations. Taking these two steps will put in place a duty that is just, that accords with the reasonable expectations of commercial parties and that is sufficiently precise that it will enhance rather than detract from commercial certainty.
There is an organizing principle of good faith that parties generally must perform their contractual duties honestly and reasonably and not capriciously or arbitrarily. An organizing principle states in general terms a requirement of justice from which more specific legal doctrines may be derived. An organizing principle therefore is not a free-standing rule, but rather a standard that underpins and is manifested in more specific legal doctrines and may be given different weight in different situations. It is a standard that helps to understand and develop the law in a coherent and principled way.
The organizing principle of good faith exemplifies the notion that, in carrying out his or her own performance of the contract, a contracting party should have appropriate regard to the legitimate contractual interests of the contracting partner. While “appropriate regard” for the other party’s interests will vary depending on the context of the contractual relationship, it does not require acting to serve those interests in all cases. It merely requires that a party not seek to undermine those interests in bad faith.
This organizing principle of good faith manifests itself through the existing doctrines about the types of situations and relationships in which the law requires, in certain respects, honest, candid, forthright or reasonable contractual performance. Generally, claims of good faith will not succeed if they do not fall within these existing doctrines. However, this list is not closed. The application of the organizing principle of good faith to particular situations should be developed where the existing law is found to be wanting and where the development may occur incrementally in a way that is consistent with the structure of the common law of contract and gives due weight to the importance of private ordering and certainty in commercial affairs.”
The United States Supreme Court in Lochner v New York  USSC 100; 198 U.S. 45; 25 S.Ct. 539; 49 L.Ed. 937; No. 292 has also set out the relationship between contract law and public policy as follows:
“Speaking generally, the state, in the exercise of its powers, may not unduly interfere with the right of the citizen to enter into contracts that may be necessary and essential in the enjoyment of the inherent rights belonging to everyone, among which rights is the right 'to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation.' This was declared in Allgeyer v. Louisiana  USSC 54; , 165 U. S. 578, 589, 41 L. ed. 832, 835 USSC 54; , 17 Sup. Ct. Rep. 427, 431. But in the same case it was conceded that the right to contract in relation to persons and property, or to do business, within a state, may be 'regulated, and sometimes prohibited, when the contracts or business conflict with the policy of the state as contained in its statutes.”
Section 242 of the German Civil Code 79 states that: “The debtor is bound to effect performance according to the requirements of good faith, giving consideration to common usage.”
The French Code civil created by Ordinance n° 2016-131 of 10 February 2016 states as follows: “Art. 1104. – Contracts must be negotiated, formed and performed in good faith. This provision is a matter of public policy.”
In Finland, the law of contract has been codified in the form of the Finnish Contracts Act (https://www.trans-lex.org/606100). Section 33 provides as follows:
“A transaction that would otherwise be binding shall not be enforceable if it was entered into under circumstances that would make it incompatible with honour and good faith for anyone knowing of those circumstances to invoke the transaction and the person to whom the transaction was directed must be presumed to have known of the circumstances.”
Section 36 (956/1982) provides as follows: (1) If a contract term is unfair or its application would lead to an unfair result, the term may be adjusted or set aside. In determining what is unfair, regard shall be had to the entire contents of the contract, the positions of the parties, the circumstances prevailing at and after the conclusion of the contract, and to other factors.
(2) If a term referred to in paragraph (1) is such that it would be unfair to enforce the rest of the contract after the adjustment of the term, the rest of the contract may also be adjusted or declared terminated.
(3) A provision relating to the amount of consideration shall also be deemed a contract term.
The traditionalists may have been well served had they considered The Conventional Penalties Act 15 of 1962 which had been part of our law 26 years before the judgment in De Ornelas.Section 3 of the Act stipulates that:-
“Reduction of excessive penalty.—If upon the hearing of a claim for a penalty, it appears to the court that such penalty is out of proportion to the prejudice suffered by the creditor by reason of the act or omission in respect of which the penalty was stipulated, the court may reduce the penalty to such extent as it may consider equitable in the circumstances: Provided that in determining the extent of such prejudice the court shall take into consideration not only the creditor’s proprietary interest, but every other rightful interest which may be affected by the act or omission in question.”
The decision of the Constitutional Court in the matter of Botha v. Rich N.O. and Others 2014 (4) SA 124 (CC) comprised a significant further development in the application of the principles of fairness and Ubuntu to contractual and indeed to statutory obligations, There, Ms Botha had paid more than 80% of the purchase price of a property that had been purchased in terms of the Alienation of Land Act. She had fallen into arrears in respect of the balance and the owner was seeking to enforce a right to cancel the agreement, evict Ms Botha and retain her payments.
The essence of the decision of the Constitutional Court was to recognize that to interpret Section 27 of the Alienation of Land Act in such a way as to deprive Ms Botha of her entitlement to transfer of the property “…would be a disproportionate sanction in relation to the considerable portion of the purchase price she has already paid, and would thus be unfair.” The Constitutional Court went on to find that the cancellation of the agreement would be a “disproportionate penalty for breach”.
The test in determining the proportionality of penalties was set out in Tetra Pak SA (Pty) Ltd v Blakey Investments (Pty) Ltd and Another 2021 (6) SA 252 (KZD). In this case the Court reduced to nil, a penalty provision in a consent to judgment, where the debtor undertook to pay an admitted debt of R10 million rand in instalments on the basis that in the event of default, the debt would increase to R25 million. The court emphasised that the test was that the applicants bear the onus to satisfy the Court that the penalty is excessive.
The supremacy of our Constitution has, undoubtedly, had a considerable impact on the common law of contract and the development thereof. The academic writings as well judicial precedents set over time canvass a holistic understanding of the dichotomy between of the law of contract, legislation and the principle of fairness. The incorporation of Ubuntu in the common law of contract serves as a mechanism of social justice, but on the other hand, should be used sparingly
The crux of the moral enigma, which is the competition between pacta servanda sunt and the golden thread of the Constitution, played out through various cases over time is that, even though both concepts promote contractual justice between the parties, Ubuntu entails a further duty not only to promote the social and economic well-being of the parties to the contract but in addition, that of the greater community to ensure the promotion of substantive equality in private dealings.