Apparently the existence of deepgoing antinomies in our system of contracts is an experience too painful to rise to the full level of our consciousnes. In the current transformative milieu, the South African law of contract continues its attempts to convey an image of contract as a coherent system of clear and neutral rules. These attempts stem from the belief that the rule-book, in and of itself, can offer us determinate answers in all contractual disputes. This study was borne out of a concern that in its commitments to sustain this image, the South African law of contract is not sufficiently concerned with transformation and the ideal of justice. In the seventies, Kennedy exposed the ambivalence of the contract system and argued that private law vividly reflected the fundamental contradiction; the irresolvable tension in and among us between acting purely out of self-interest or allowing our actions to be informed, influenced and curtailed by others. Kennedy asserted that the fundamental contradiction could be construed as a continuum with two opposing ‘ideal typical’ positions on both the level of form and substance. On the substance level he referred to this warring engagement as individualism and altruism. On the form level, the ideal typical commitments prefer law either in the form of rules or as open-ended standards. Kennedy’s most provocative claim was that individualism preferred law in the form of rules whereas altruism favoured the open-ended standard form. This claim reflected the understanding that form and substance are interdependent because it is impossible not to ask: ‘Form of what?’ Dalton later added more explicitly that form and substance would politically always generate a hierarchy within a legal system. Following Kennedy, this study engages with the South African law of contract in a similar way. It argues that the South African law of contract not only reflects the fundamental contradiction profoundly, but also privileges and works to sustain the individualism/rule position. This position is not sufficiently concerned with the ethical element of contract (good faith) and with the ideal of contractual justice. I consider whether and how the transition from a totalitarian state to a constitutional democracy affected this hierarchy. I arrive at disappointing but nevertheless hopeful conclusions in the sense that the bias inculcated in the law of contract cannot take anything away from the fact that it operates in the penumbra of a Constitution which is committed to openness, equality, dignity and freedom in all human relationships, including those of a contractual nature. In resisting the traditional representations of contract and in support of the above, I propose a re-emphasis on good faith as the ethical element of contract. Good faith cannot be contained in a neat and tidy legal definition. It realises that we are, in the community of contracting persons, each responsible for the other’s well-being and that we should ultimately remain concerned with the constitutive values of the supreme law under which the subordinated but indispensable law of contract must continue to operate. The difficulty and complexity of this exercise provides no alibi. Copyright 2005, University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. Please cite as follows: Barnard, AJ 2005, A critical legal argument for contractual justice in the South African law of contract, LLD thesis, University of Pretoria, Pretoria, viewed yymmdd < http://upetd.up.ac.za/thesis/available/etd-06192006-083839/ > / Thesis (LLD)--University of Pretoria, 2007. / Jurisprudence / LLD / Unrestricted

"Although the African Commission recognised that non-state actors (in this case the transnational corporations (TNCs)) contributed to the violations that prompted the SERAC communication, it failed to hold the TNCs accountable for the violations. The Commission rather held the state party responsible [for] failing to prevent the violations in its territory. The reason for the failure of the Commission to hold the non-state actor accountable is obvious. As Anderson has noted, 'conventional jurisprudence contends that human rights are enforceable only against the acts of omissions of the state rather than the acts of private entities'. Consequently, especially in international fora, violations by non-state actors have gone largely unaccoutned for. Hence, commentators have argued in favour of seeking an appropriate regime for holding non-state actors accountable for such violations, some arguing for horizontal application at international fora. However, non-state actors lack the status to allow Charter institutions exercise jurisdiction over them. This leaves the option of domestic systems as fora for their accountability. Thus, the emerging principle of horizontal applicability of human rights in domestic jurisdictions and the assumption of independent judiciaries provide the premises for this study. ... Chapter 1 contains a general overview of the study. In Chapter 2, the essay examines the scope and content of the right to a satisfactory environment as contained in the African Charter. Chapter 3 examines the existing framework for the realisation of the right to a satisfactory environment under the African Charter. The SERAC case is considered briefly in this chapter as an example of the difficulty to arrest non-state actor violations in the existing framework. Chapter 4 presents the case for horizontal application of article 24 of the African Charter at the domestic level as a complimentary approach to realisation of the right. The debate on horizontal applicability of human rights is highlighted to show that it is not yet widely accepted but it is presented as a basis for this option. The recent Nigerian case of Gbemre v SPDC is examined as an example of the possibility of horizontal applicaton of the article 24 right in a domestic tribunal. Chapter 5 summarises the conclusions from the study and makes recommendations in support of applying the African Charter based right horizontally in domestic courts." -- Introduction. / Mini Dissertation (LLM)--University of Pretoria, 2006. / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / Centre for Human Rights / LLM / LLM

A tension arises whenever the South African private law fails to meet constitutional right norms. To remedy a deficiency, two law-making options are available. The first is for the judiciary to develop or change private law principles and rules in order to provide protection for the implicated constitutional norm. The second is for the judiciary to enforce an obligation upon Parliament to enact legislation to amend or replace existing private law rights and obligations so as to safeguard the norm against interference from a private individual or entity. The former is the more conventional option, but, in recent years, the law reports record an increasing reliance on the legislative duty to protect constitutional right norms in private legal relationships. The thesis investigates the extent to which the latter phenomenon - which will be described as a 'pivot towards legislative remedies' - exists, and the circumstances in which the courts pivot towards legislative remedies rather than developing private law of their own accord. The thesis finds that legislative schemes that give effect to constitutional rights are likely to contain an array of benefits that are absent from or reduced in the judicial law-making process. The judicial pivot towards legislative remedies is thus a strategy to enhance the process through which conflicting rights are resolved, as it allows for the constitutional rebuilding of private law in a way that the judiciary is unable to do on its own. Importantly, however, theories of judicial deference do not explain the pivot. On the contrary, the courts have exercised a strict level of control over the legislative law-making pathway. Through either statutory interpretation or the review of legislation, the courts require legislation to contain the essentials of the judicial law-making framework. From this perspective, the judicial law-making process produces the floor of the rebuilding project and the legislative law-making process enhances that framework.