THE INFLUENCE OF THE CONSTITUTION ON THE LAW OF CONTRACT IN SOUTH AFRICA: A CRITICAL ANALYSIS

1. INTRODUCTION

The coming into force of the Constitution of the Republic of South Africa,1996[1] brought a major change to the country’s legal framework. Before 1994, South African contract law was grounded in Roman Dutch doctrine, with strong emphasis on pacta sunt servanda agreements must be kept and on the freedom to contract[2]. The Constitution, however, requires that all law, including the common law of contract, be developed and applied in a way that reflects the rights and values set out in the Bill of Rights[3].

This article looks at how the Constitution has reshaped traditional contract law. It considers how courts have used their power to develop the common law so that contractual doctrine better reflects values like equality, dignity and fairness. The main point is that while core contract principles remain, the way they are applied has shifted to serve broader social justice and public policy objectives[4].

2. THE CONSTITUTIONAL BASIS FOR INTERVENTION

2.1 The Supremacy of the Constitution

The Constitution is the supreme law of the Republic, and any law or conduct inconsistent with it is invalid[5]. Section 39(2) goes further by obliging courts, tribunals and forums to promote the spirit, purport and objects of the Bill of Rights when developing the common law[6]. That obligation transforms judges from mere declarers of existing law into active participants in shaping legal doctrine to align with constitutional values[7].

2.2 Relevant Fundamental Rights

Several constitutional rights directly affect contractual relationships, notably the right to human dignity (section 10)[8], the right to privacy (section 14)[9], the right to property (section 25)[10], and the general limitation clause (section 36)[11]. These rights serve as an external standard against which contractual terms and common-law rules are measured[12].

3. AREAS OF INFLUENCE

3.1 Public Policy and Good Faith

One of the most noticeable changes is in the concept of public policy. Where public policy used to be rigid and formalistic, it is now interpreted considering the boni mores the values of the community as informed by the Constitution[13]. Good faith (goeder trou) has gained renewed importance. In Brisley v Drotsky[14] the court stressed that while good faith is not a freestanding rule, it is an important interpretive value that shapes how legal rules are applied. Contracts must be performed honestly and reasonably[15].

3.2 Contractual Capacity and Equality

The Constitution’s commitment to equality has affected who can contract. The dismantling of discriminatory barriers and recognition of equal status means that all persons, regardless of race or gender, should have equal capacity to enter into agreements[16]. This development reflects section 9’s guarantee of equality[17].

3.3 Standard Form Contracts and Unjust Terms

In consumer law, courts have become more willing to intervene where terms in standard-form contracts are so one-sided that they offend dignity or equality[18]. Legislative protections, such as the National Credit Act[19], provide explicit safeguards for vulnerable parties, but the Constitution underpins and motivates judicial scrutiny of exploitative terms[20].

4. CRITICAL ANALYSIS OF CASE LAW

4.1 Barkhuizen v Napier

In Barkhuizen v Napier[21], the Constitutional Court considered whether a time-bar clause in an insurance contract was unconstitutional. Although the court upheld the clause in that case, it made clear that contractual terms can be challenged where they conflict with public policy as informed by constitutional values[22]. The court’s test is whether a clause is unconstitutional, illegal or immoral when judged against the Constitution[23]. Barkhuizen therefore confirms that freedom of contract is not absolute and is subject to constitutional constraints[24].

4.2 Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd

Everfresh reaffirmed the duty under section 39(2) to infuse the common law with constitutional values[25]. The court explicitly recognized good faith and fairness as values that the common law must reflect[26], showing a trend toward more intervention where contractual arrangements produce unfair results[27].

5. COMPARATIVE PERSPECTIVE

English contract law remains more committed to freedom of contract with relatively limited judicial intervention[28]. South Africa’s approach is distinctive because it uses the Constitution as a moral compass[29] for the development of private law. Critics worry that this can create legal uncertainty[30], yet proponents argue that a constitutionally guided approach is essential for transformative constitutionalism[31] and for ensuring that the law serves the whole community, not just the powerful[32].

6. CHALLENGES AND CRITICISMS

Several challenges persist. First, there is a tension between legal certainty important in commercial dealings and the pursuit of fairness, which may introduce unpredictability[33]. Second, it can be difficult to predict how courts will apply constitutional values to contracts[34]. Third, debate continues over whether constitutional rights apply directly to contractual relations or only indirectly through the development of the common law[35]. Despite these concerns, many accept that the gains making the law more humane and protective of weaker parties outweigh the costs, especially in a society marked by deep economic inequality[36].

7. CONCLUSION

In conclusion, the Constitution has clearly transformed South African contract law[37]. The focus has shifted from a narrowly individualistic model toward one that places greater weight on human dignity, equality and fairness. Cases such as Barkhuizen and Everfresh show that public policy must be interpreted through a constitutional mask[38]. Parties remain free to contract, but they must do so within the boundaries set by the Constitution[39]. Courts should continue to develop the common law in a principled and courageous way so that contract law remains both relevant and just. The future of South African contract law will depend on balancing traditional principles with the transformative aims of the Constitution.

BIBLIOGRAPHY

LEGISLATION

Constitution of the Republic of South Africa, 1996

National Credit Act 34 of 2005

CASES

 Barkhuizen v Napier 2007 (5) SA 401 (CC)

Brisley v Drotsky 2002 (4) SA 1 (SCA)

Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC)

Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC)

BOOKS

 Burchell J, Principles of Contract Law (Juta 2017)

Christie RH, The Law of Contract in South Africa (LexisNexis 2016)

Du Plessis L et al, Commentary on the Constitution of South Africa (Oxford University Press 2019)

Snyman CR, Contract Law (LexisNexis 2015)

JOURNAL ARTICLE

Davis G, “Freedom of Contract under the Constitution” (2008) 125 South African Law Journal 701-720

Van der Walt AJ, “Constitutional Values and Contract Law” (2002) 119 South African Law Journal 543-560

[1] Constitution of the Republic of South Africa, 1996.

[2] CR Snyman, Contract Law (2015) 45.

[3] AJ van der Walt, “Constitutional Values and Contract Law” (2002) 119 South African Law Journal 543.

[4] D Bhana et al, Constitutional Law (2019) 321.

[5] Section 2 of the Constitution.

[6] Section 39(2) of the Constitution.

[7] Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) [56].

[8] Section 10 of the Constitution.

[9] Section 14 of the Constitution.

[10] Section 25 of the Constitution.

[11] Section 36 of the Constitution.

[12] J Burchell, Principles of Contract Law (2017) 112.

[13] Briskey v Drotsky 2002 (4) SA 1 (SCA) [15].

[14] Ibid.

[15] RH Christie, The Law of Contract in South Africa (2016) 189.

[16] Law of Contract and the Constitution (UP Press 2020) 78.

[17] Section 9 of the Constitution.

[18] Afrox Healthcare Ltd v Strydom 2002 (6) SA 21 (SCA).

[19] National Credit Act 34 of 2005.

[20] L du Plessis et al, Commentary on the Constitution (2019) vol 2.

[21] Barkhuizen v Napier 2007 (5) SA 401 (CC).

[22] Ibid 30.

[23] Ibid 31.

[24] G Davis, “Freedom of Contract under the Constitution” (2008) 125 SALJ 701.

[25] Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC) 45.

[26] Ibid.

[27] T Maluwa, “Transformative Constitutionalism” (2010) 21 Stellenbosch Law Review 340.

[28] A Burrows, English Contract Law (2016) 90.

[29] K Motala, “Constitutionalism and Contract” (2015) 40 Journal of South African Law 110.

[30] P Maduna, “Law and Transformation” (1998) 11 Constitutional Court Review 45.

[31]C Smith, “Certainty in Contract Law” (2009) 12 SA Mercantile Law Journal 55.

[32] Op cit n 25.

[33] Op cit n 29.

[34] J Sloth-Nielsen, Constitutional Litigation (2018) 201.

[35] F du Bois, The Practice of Law (2021) 450.

[36] D Modiba, “Law and Inequality” (2017) 30 Potchefstroom Electronic Law Journal 12.

[37] Op cit n 3.

[38] Op cit n 11.

[39] Op cit 19.