Madelein Brisley v Antoinette Drotsky

The appellant (Brisley) entered into a written lease agreement with the respondent (Drotsky) to rent a townhouse in Pretoria for R3,500 per month, payable in advance on the first of each month from 1 October 1999. Brisley consistently paid rent late. The lease contained a clause (clause 19) requiring any alterations or variations to be in writing and signed by both parties (a non-variation clause). Brisley alleged that after signing the lease, Drotsky orally agreed to allow her to pay late for the first six months, and then by the 7th of each month thereafter. In January 2000, Brisley only paid R3,000, claiming she withheld R500 for sewerage repairs. On 31 January 2000, Drotsky cancelled the lease in writing and gave Brisley 14 days to vacate. Brisley refused to vacate. Drotsky brought a motion application for eviction. Brisley defended on the basis of the alleged oral variation and raised constitutional issues under section 26(3) of the Constitution regarding evictions.

• Whether the Shifren principle (that a non-variation clause requiring written variations is binding and prevents oral variations from being enforceable) should be upheld or overturned
• The scope and application of the bona fides (good faith) principle in contract law and whether it can override a non-variation clause
• Whether section 26(3) of the Constitution, which prohibits eviction from one's home without a court order after considering all relevant circumstances, applies to private lease agreements and what 'relevant circumstances' must be considered
• Whether non-variation clauses have horizontal application between private parties
• Whether the Constitution requires the development of the common law of contract to limit enforcement of non-variation clauses

The appeal was dismissed with costs on an attorney-and-client scale as provided in the lease agreement. The eviction order granted by the court a quo was upheld, requiring Brisley to vacate the premises within 10 days.

A non-variation clause validly agreed upon by parties, requiring variations to be in writing, is enforceable and prevents oral variations from having legal effect, even if made animo contrahendi. Good faith is an underlying value in contract law that informs specific rules and doctrines, but does not provide courts with a general discretion to refuse enforcement of valid contractual provisions merely because enforcement appears unreasonable or inequitable. Section 26(3) of the Constitution applies to private evictions (horizontal application), but 'all relevant circumstances' means legally relevant circumstances. Where a landlord is the owner and the tenant has no legal right to occupy after valid termination of the lease, and the court has no statutory discretion to refuse eviction, the tenant's personal or socio-economic circumstances are not legally relevant circumstances that can prevent an eviction order. The only relevant circumstances in such cases are ownership and lawful right to occupy.

Olivier AR expressed the view (in a minority opinion) that the bona fides principle, informed by constitutional values, should allow courts greater flexibility in determining whether to enforce non-variation clauses, requiring consideration of factors such as: the interests of the party relying on the clause; the extent of reliance by the other party on the oral agreement; whether reasonable notice was given that the oral arrangement would no longer apply; and the mutual consequences of enforcing or not enforcing the clause. This approach would require objective assessment of reasonableness in each case. Cameron JA observed that public policy, now rooted in constitutional values including dignity, equality and freedom, will strike down contracts offensive to these values. However, contractual autonomy itself is part of freedom and dignity, and courts must exercise restraint in interfering with contracts. The Constitution does not give courts general jurisdiction to invalidate contracts based on judicial notions of unjustness or imprecise notions of good faith. The court noted that there are established exceptions to the Shifren principle, including fraud, and that contracts contrary to public policy (now informed by constitutional values) will not be enforced.

This case definitively reaffirmed the Shifren principle in post-constitutional South Africa, establishing that non-variation clauses remain valid and enforceable. The judgment clarified that good faith does not operate as an independent discretionary power to override contractual provisions, but rather informs the development and application of specific common law doctrines. The case established that section 26(3) of the Constitution has horizontal application to private evictions, but interpreted 'relevant circumstances' narrowly in the context of valid lease termination - only legally relevant factors (such as ownership and lawful right to occupy) need be considered, not socio-economic circumstances of the tenant where there is no statutory or contractual right to remain. The judgment balanced constitutional values of dignity, equality and contractual autonomy, holding that certainty in commercial transactions and respect for consensual contractual arrangements are themselves constitutionally protected values. It remains a leading authority on non-variation clauses and the limits of good faith in South African contract law.