The Constitutional Court as the apex court for the common law of contract: middle ground between the approaches of the Constitutional Court and the Supreme Court of Appeal

Abstract

In terms of the Constitution Seventeenth Amendment of 2012, the Constitutional Court is now the apex court in all legal matters. From a conceptual standpoint, this development is welcomed in relation to contract law. Indeed, the hope is that the recognition of the Constitutional Court as the apex court better enables it to exhort the Supreme Court of Appeal (SCA) (and the lower courts) to integrate the rights and values of the Constitution properly within the common law of contract. Unfortunately, what has unfolded thus far in the Constitutional Court does not quite seem to measure up. Whilst the Constitutional Court has tended generally to emphasise the need for greater fairness in contracts upon the basis of the Constitution and its broader transformative project for South African law, it appears perplexed when confronted with the question of how to do so without unduly sacrificing legal certainty. As a counterfoil, the SCA remains steadfast that the established common law of contract is constitutionally legitimate (and inherently fair) as it stands. In this article, I argue that the appropriate approach to the question of fairness in a constitutionalised common law of contract lies somewhere between the approaches of the Constitutional Court and SCA.