n Stellenbosch Law Review - Developing the common law of contract in the light of poverty and illiteracy : the challenge of the Constitution

Volume 22, Issue 3
  • ISSN : 1016-4359


The constitutional settlement that ushered in democracy in South Africa did not summarily erase apartheid from the social and economic landscape. The drafters of the Constitution understood that erasure would not be achieved by way of one silver bullet. It could only occur by way of a journey towards the egalitarian vision prefigured in the constitutional text. At the same time the drafters understood that legal rules which reinforced patterns of power required reconfiguration if the journey was to be undertaken. The idea was that the Constitution, whether through a specific right or the influence of its normative framework, itself based upon the foundational principles of dignity, freedom and equality, would be central to a reconfiguration of the background rules in terms of which all economic activity took place. Viewed within the matrix of this compelling observation, it was to be hoped that the distributive importance of the ground rules of contract would have been the subject of careful interrogation by the courts. This paper seeks to engage with key cases in which South African courts, in effect, ignored these challenges when deciding disputes based upon the law of contract. The record reveals that the courts either eschewed the significance of the Constitution or simply nodded in the direction of the Constitution, before proceeding in the opposite direction. This paper employs the realist work of Robert Hale to illustrate that rules which assign property rights and which impact upon the nature and enforcement of contractual claims profoundly shape economic relationships. In short, if the ground rules are changed, an alteration of social and economic relationship may well take place.

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