The Role of Judicial Method in the Relinquishing of Constitutional Rights Through Contract

Abstract

Legal method is informed by legal culture and ideology. As such, legal method plays a significant role in the determination of the parameters of a constitutionally endorsed concept of contractual autonomy as against the substantive rights set out in the Bill of Rights. Judges therefore must be fully conscious of this reality in carrying out their adjudicative function. Section 39(2) of the Constitution sanctions the invocation of the common law framework and methodology to determine the reach of contractual autonomy within our constitutional dispensation. However, the framework and methodology employed by the common law of contract has generally favoured contractual autonomy as against competing common law rights. A blanket invocation of the pre-constitutional methodology could therefore inadvertently diminish the significance of substantive constitutional rights. Accordingly, the common law methodology must be reviewed against the substantively progressive aims of our constitutional order and adjusted appropriately to reflect the weight that ought to be attached to the respective constitutional rights. Here, judges can draw from ss 8(2) and 36(1) of the Constitution to guide the adjustment of the common law framework and methodology.