Case Notes: A rose by any other name would smell as sweet: Universal Church of The Kingdom of God v Myeni & others (2015) 36 ILJ 2832 (LAC)

• Jurisdiction: South Africa
• Published date: 20 August 2019
• Pages: 140-152
• Author: Lux Lesley Kubjana
• Date: 20 August 2019
• Citation: (2017) 29 SA Merc LJ 140

Case Notes

A ROSE BY ANY OTHER NAME WOULD

SMELL AS SWEET: UNIVERSAL CHURCH OF

THE KINGDOM OF GOD V MYENI &

OTHERS (2015) 36 ILJ 2832 (LAC)

LUX LESLEY KUBJANA

Lecturer, Department of Mercantile Law, University of South Africa

BONGANI KHUMALO

Lecturer, Department of Mercantile Law, University of South Africa

I INTRODUCTION

The law of contract provides that agreements freely entered into by

parties should be honoured. This is ref‌lected in the principle of pacta

sunt servanda.Also linked to this is the parties’ freedom to contract and

the sanctity of a contract.The contractual terms should ref‌lect the wishes

of the parties and should not be interfered with if all the general

contractual requirements have been met. The same principle applies to

employment contracts. De Villiers JA observed in Paiges v Van Ryn that

even if it can be established that (certain) stipulations in the employ-

ment contract are not in the interest of the employee, the court is not

allowed to move away from such stipulations as they are understood to

be an expression of the parties’ wishes. It is not for the courts to decide,

but rather a matter for the legislature (Paiges v Van Ryn Gold Mines

Estates 1920 AD 600 at 616. See, also, Brassey, The New Labour Law:

Strikes, Dismissals and the Unfair Labour Practice in South African Law

(Juta 1987) 3; Printing and Numerical Registering CO v Sampson (1875)

19 Eq 462 at 465). In this regard, fairness or equity is not a factor —

everything is left to the bargaining power of the parties involved and

what comes out of that is taken as gospel (Kerr, The Principles of the Law

of Contract 5 ed (Butterworths 1998) 3; Smit v Worksmen’s Compensa-

tion Commissioner 1979 (1) SA 51 (A) at 64B; Liberty Life Association of

Africa Ltd v Niselow (1996) 17 ILJ 673 (LAC) at 683D–E; SA Broadcasting

Corporation v McKenzie (1999) 20 ILJ 585 (LAC) at 591E; Linda Erasmus

Properties Enterprise (Pty) Ltd v Mhlongo & others (2007) 28 ILJ 1100

140

(2017) 29 SA Merc LJ 140

© Juta and Company (Pty) Ltd