Abstract
Private parties have the freedom and autonomy to enter into a contract. This autonomy is deeply rooted in their dignity and personal liberties. Private individuals, in furtherance of their autonomy and freedom to enter into a contract, have certain reasonable expectations, most fundamental of which is the desire that maximum respect is given to their legitimately concluded agreement. The concept of contractual freedom and autonomy connotes the idea that private individuals (natural and juristic) have the liberty to arrange their affairs in a manner that meets their economic interest without governmental inhibition, control and/or interference. However, the operative scope and the practical manifestations of the concept of contractual freedom are circumscribed in the constitutional, statutory, legislative and other socio-cultural orders of States. This article seeks to reflect on the role and influence of the constitutional value of ubuntu on the principle of contractual freedom and autonomy, and the naturally accompanying concepts of pacta sunt servanda and sanctity of contract in South Africa. The article provides an analysis of the judicial interpretation and views on the concept of contractual freedom and autonomy relative to other competing values that underlie the Constitution of the Republic of South Africa. Furthermore, the article appraises the impact of those judicial views on international commercial agreements. The article also discusses the extent to which communitarian values such as the concept of ubuntu have been infused into South African contract law and further reflects on the implication of infusing such communitarian values in both domestic and international contracts. The article concludes with a suggestion that the introduction of traditional African values in South African contract law fundamentally alters the theoretical foundations of the principle of contractual freedom and autonomy in both domestic and international contracts.
Highlights
The principle of contractual freedom and autonomy is a libertarian doctrine enmeshed in the ideas of an open market economy, and flows from the concept of individual/personal autonomy
The fourth section provides an analysis of the competing constitutional values of ubuntu and the concept of contractual freedom and autonomy and further highlights the views expressed by the Constitutional Court (CC) and Supreme Court of Appeal (SCA) of South Africa on the issue of constitutional fairness and the role of ubuntu in contractual relations
In order to put the discussion of the impact of the constitutional value of ubuntu in contractual relations into proper perspective, it is necessary to highlight the general position of South African courts on the nature and essence of the concepts of contractual freedom and autonomy, and the concomitant principles of pacta sunt servanda and the sanctity of contracts
Summary
The principle of contractual freedom and autonomy is a libertarian doctrine enmeshed in the ideas of an open market economy, and flows from the concept of individual/personal autonomy. This article seeks to reflect on the impact of the constitutional value of ubuntu on the principle of contractual freedom and autonomy, and the concomitant concepts of pacta sunt servanda and sanctity of contract. The article discusses the judicial interpretation and views on the concept of contractual freedom and autonomy vis a vis other competing constitutional values underlying the Constitution of the Republic of South Africa. The first section discusses the applicability of the Constitution of South Africa in contract law and highlights the essence of the concept of ubuntu as a vital constitutional value that informs the public policy of South Africa. The fourth section provides an analysis of the competing constitutional values of ubuntu and the concept of contractual freedom and autonomy and further highlights the views expressed by the Constitutional Court (CC) and Supreme Court of Appeal (SCA) of South Africa on the issue of constitutional fairness and the role of ubuntu in contractual relations. The final section concludes with a suggestion that infusing the value of ubuntu into contractual relations would fundamentally alter the theoretical foundations of the concept of contractual freedom and autonomy as understood in international commercial law
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