Joining in the search for a post-apartheid South African jurisprudence, this dissertation departs from transformative constitutionalism, as formulated by Karl Klare. Transformative constitutionalism is a long-term project of bringing about social change through the interpretation and enactment of the constitution. Because the project envisions transformation not as single occurrence but as a continuous process, it requires a legal culture that is conducive to this change. Legal culture pertains to the way in which law and legal concepts are approached. The suggestion is that there is a continuation of a formalistic legal culture in South Africa, and this continuation of formalism stifles the transformation envisioned by the South African Constitution and the project of transformative constitutionalism. The idea of continuation emphasises the momentum of legal culture and is related to institutional inertia. This dissertation links conservatism, positivism, formalism and other related concepts with the notion of spectacle as outlined in the work of Njabulo Ndebele and proposes that South African legal culture is a continuation of spectacle by looking at approaches to history, constitutionalism, democracy and rights. The spectacle, like formalism, prefers the determinate, values display and emphasises the external - it is an overt and celebratory mode devoid of thought. Because the spectacle and the continuation of a legal culture of spectacle stifles transformative constitutionalism, the submission is that there should be a refusal of spectacle in South African legal culture and a return to the ordinary. The notion of refusal comes from an article by Karin Van Marle, and links with a critical and slower approach. Ndebele introduces rediscovery of the ordinary, which is related to the concept of the everyday. Opposed to the spectacle, refusal and the ordinary favours contemplation and commemoration. This leads to a view on approaching history, constitutionalism, democracy and rights as refusal of spectacle and rediscovery of the ordinary. It is an attempt to rethink South Africa’s legal culture in order to move closer to the aims of transformative constitutionalism. Following the aesthetic turn in South African jurisprudence, this dissertation makes use of literary examples to illustrate the arguments. Ndebele’s The Cry of Winnie Mandela and Eben Venter’s Horrelpoot introduce the themes of storytelling, travelling and post-colonialism and aptly expands on the call for a refusal of spectacle. / Dissertation (LLM)--University of Pretoria, 2009. / Jurisprudence / LLM / Unrestricted

The purpose, of this mini dissertation is to understand South Africa as a country in a spatial crisis that leads to the entrapment of the black body in a social, political, economic and legally depressed state. The crisis describes and is as a result of the multiple upheavals and ruptures that have shaped the post-colonial, particularly African, landscape, and experiences of its people. Particular to the post-colonial landscape is that these ruptures are largely defined by the history of extraction, exclusion and violence by the white elite against the black poor. The nature of the crisis is that it continues to support and re-enact the same colonial oppressive outcomes, ensuring the black poor continue to exist in a state of marginalisation. The spaces in the crisis also work to physically push out and keep marginalised black people in informal spaces away from economic activity. But additionally, the intangible elements of space mean that black people carry the consequences and definitions of these spaces with them which define how they are interpellated, ensuring that in and out of the physical space they are viewed as sub-human. In this dissertation I am particularly interested in how transformative constitutionalism can proactively facilitate spatial justice for the historically and presently marginalised in ameliorating the effects of the crisis. Spatial justice, in my understanding would mean the removal of the abyssal line and simultaneity between those interpellated as human and sub-human. / Mini Dissertation (LLM)--University of Pretoria, 2019. / Jurisprudence / LLM / Unrestricted

The underlying premise explored is whether the right to gender equality as interpreted and imposed within the confines of dominant western ideologies of liberal legalism could create the space for meeting the particular needs of (South) African women and men who wish to live out their dreams and desires differently. Modernist discourses mask the political, social and economic power of law and are crucial for the maintenance of the status quo. This adherence to formal rules, extant legal texts and a legalistic culture is violently exclusionary and thus it is necessary to enter into critical discourses that lead to transformative jurisprudence and thought. Different voices have been silenced by these ideologies and it is essential that the stories of women and other outsiders are listened to in order to (re)introduce new futures and new possibilities to South Africans struggling to find a home for themselves in the post apartheid context. The recognition of more ethical approaches to law creates the space to move beyond liberal legalism to post liberal interpretations of the law, the Constitution and the right to gender equality. I therefore focus on exploring the inter relationships between the ethic of care, ethical feminism, ubuntu, and storytelling, which may render judg(e)ments less rigid and exclusionary, and make it more possible to ensure that we can ‘do things a different, a better, way’. Since 1994 the Constitutional Court has formulated a substantive test for equality infringements. This approach, although widely supported, continues to ignore the contextuality of situations and narratives. For this reason I submit that ethical feminist discourses and the insistence on attention to minor, marginal and subversive narratives can teach us much about ourselves and those that we deem to be 'different' from ourselves. Adopting a 'minor' jurisprudence such as the jurisprudence of care formulated in this thesis allows us to reconsider what is and to dream of what is yet to be. In such a way, sites of (legal) resistance are created and maintained, where the 'feminine' (as the beyond, and not 'lack') operates as a locus of change. The equality courts created by the Promotion of Equality and Prevention of Unfair Discrimination Act could be utilised as spaces of non violent and ethical judgment where the other before the law is seen as unique, considered with care, and thus freed from oppression. The aim of this research is not to conceptualise and categorise a new metanarrative or meta jurisprudence, but to introduce to the reader other ways of listening, seeing and being ways which are less violent, less exclusionary, and more accommodating of difference and diverse experiences of oppression and subordination. Furthermore, the aim is to challenge current legal traditions and to develop new thinking around an indigenous and ethical interpretation of gender equality. 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: Bohler-Muller, N 2005, Developing a new jurisprudence of gender equality in South Africa, LLD thesis, University of Pretoria, Pretoria, viewed yymmdd < http://upetd.up.ac.za/thesis/available/etd-06152006-123856 / > / Thesis (LLD)--University of Pretoria, 2007. / Jurisprudence / Unrestricted

In this dissertation I analyse the transformation of the South African law on the warranty against latent defects. I trace the development from pre-classical Roman law through to the enactment of the Consumer Protection Act 68 of 2008 (“the CPA”). Society’s ever-changing economic requirements and moral ideals serve as the driving forces behind these continuous legal developments. Under Roman law the rules on latent defects initially applied to the sale of slaves. In contrast, modern South African law, as per the CPA and the values of the Constitution of the Republic of South Africa, 1996, specifically aims to protect the most vulnerable members of South Africa’s unequal society. The conservative approach adopted by the judiciary when adjudicating contractual matters hinders the transformation of the law of sale. Legal rules and legal thinking which reinforce traditional distributive patterns require reconsideration if societal-wide change, as demanded by the Constitution, can be imagined and accomplished. If the economic role of the contract and its power to divide and (re)distribute wealth is viewed as important, the link between poverty and the contract, and by association the consumer agreement, cannot be ignored. Contracts, and specifically basic consumer and credit agreements, are often concluded in order to facilitate survival in our current social reality. The law as it relates to consumer protection and the sale of defective goods is directly related to the contract’s role in wealth distribution. Where sales agreements are in question, the unequal bargaining power of the parties can impede the purchaser/consumer even further. The consumer’s right to good quality and safe goods creates uncertainty regarding whether or not the seller’s liability under the common law warranty against latent defects may be excluded in instances where the CPA and the common law apply simultaneously. This uncertainty, if addressed as being part of the national project of transformative constitutionalism, the only conclusion that can be drawn is that the exclusion of the seller’s liability is, paradoxically, detrimental to the very subject that the CPA and Constitution aim to protect, namely the purchaser. / Dissertation (LLM)--University of Pretoria, 2014. / tm2015 / Private Law / LLM / Unrestricted

Thesis (LLD)--Stellenbosch University, 2013. / ENGLISH ABSTRACT: This dissertation considers the question whether there are viable alternatives to the conceptual framework within which the South African administrative-law system operates, given that the administration now functions under new constitutional demands and new approaches to administrative engagement. The intention is not to proffer concrete recommendations for such a system, but only to propose an approach by means of which questions concerning the legal regulation of the administration and administrative function may be addressed. The dissertation introduces the concept of the contextualised administrative-law system. This concept emphasises the legal relationship between the public administration and the judiciary, but is not limited to this relationship. The administrative-law system does not operate in a vacuum, though, and is informed by the conceptual framework within which the system operates. The system is also a function of its geo-political and socio-economic context. The historical development of the doctrine of separation of powers, as one aspect of the conceptual framework, is traced. Thereby the normative, dynamic and flexible nature of the doctrine is established. On this basis, the potential and value of a fourth branch, the administration, within the separation-of-powers doctrine is assessed. By implication, the administrative function would constitute a fourth, distinct function in addition to the legislative, executive and judicial functions. The concept of the administrative-law system is consequently applied to the South African context. Firstly, the development of the South African system is outlined and, secondly, the administrative-law relationship is analysed. This discussion establishes that the system is characterised by an embryonic administrative law, the equating of administrative law and judicial review, an emphasis on the rule-of-law or “red-light” approach to administrative regulation, a rhetoric of deference, and the supremacy of the Constitution of the Republic of South Africa, 1996. Therefore, the system must be informed by the Constitution and, arguably, by Karl Klare’s project of transformative constitutionalism and Etienne Mureinik’s “culture of justification”. The content of the separation of powers is also investigated by means of an historical analysis of the considerations that rationalise the existence of an independent administrative jurisdiction in France. This entails an exposition of the Conseil d’État’s structure, organisation and dual function. Principles that describe the French system, other than the pure separation of powers, are discussed, namely, the duality of jurisdiction, the separation of administrative and judicial authorities, the separation of the administrative jurisdiction and active administration, the maxim “to judge the administration is still administering”, and the hybrid nature of administrative litigation. The legal regulation of public contracts can be regarded as a doctrinal perspective of the administrative-law system. The public contract is discussed as one form of administration, due to its conceptual ambiguity as a legal instrument on the boundary between public and private law and due to the administration’s increasing contractual activity. To an extent the contrat administratif of French law indicates that particular legal rules are an extension of the broader principles, considerations and institutional structures discussed in the preceding sections. This dissertation introduces an approach that emphasises the relationship between the administration and the judiciary as well as the conceptual framework within which the administrative-law system operates. Through the application of this approach to the South African context and to public contracting the key concepts and debates underlying an appropriate administrative-law system in South Africa are identified and investigated. This constitutes a platform for the development of a particular administrative-law system and an exposition of viable alternatives to the conceptual framework within which the system operates. / AFRIKAANSE OPSOMMING: Hierdie proefskrif ondersoek die vraag of daar lewensvatbare alternatiewe tot die konseptuele raamwerk van die huidige Suid-Afrikaanse administratiefreg-stelsel moontlik is. Dié vraag word gestel teen die agtergrond van die nuwe grondwetlike vereistes en benaderings waaraan administratiewe interaksie moet voldoen. Die bedoeling is nie om aanbevelings vir die bestaande stelsel te maak nie, maar eerder om ‘n benadering voor te stel waarin vrae oor die regulering van die administrasie en die administratiewe funksie geakkommodeer kan word. In die proses skep die proefskrif ‘n nuwe konsep: die administratiefreg-stelsel in konteks, wat die regsverhouding tussen die administrasie en die regbank beklemtoon, terwyl dit nie beperk is tot die verhouding nie. Uiteraard word die administratiefregstelsel beïnvloed deur die konseptuele raamwerk waarin dit funksioneer, terwyl dit verder ook ‘n funksie is van sy geopolitiese en sosio-ekonomiese konteks. Die historiese ontwikkeling van die skeiding van magte, een aspek van die konseptuele raamwerk, word bespreek en daardeur word die normatiewe, dinamiese en buigsame aard van die leerstuk bevestig. Hiermee word die potensiaal en waarde van ‘n vierde been, naamlik die administrasie, binne die skeiding-van-magte leerstuk oorweeg, met die implikasie dat die administratiewe funksie ‘n onafhanklike, vierde funksie vestig, benewens die wetgewende, uitvoerende en regsprekende funksies. Die konsep van die administratiefreg-stelsel word gevolglik toegepas op die Suid- Afrikaanse konteks. Eerstens word die ontwikkeling van die Suid-Afrikaanse stelsel uiteengesit en dan tweedens word die administratiefreg-verhouding ontleed. Hierdie bespreking bevestig dat die stelsel gekenmerk word deur ‘n onderontwikkelde administratiefreg, die gelykstelling van die administratiefreg en geregtelike hersiening, die beklemtoning van die regstaat en ‘n sogenaamde rooilig-benadering tot administratiewe regulasie, ‘n retoriek van geregtike agting, en die oppergesag van die Grondwet van die Republiek van Suid-Afrika, 1996. Juis as gevolg hiervan moet die stelsel op die Grondwet gegrond word. Daar word ook geargumenteer dat Karl Klare se transformerende konstitusionalisme sowel as Etienne Mureinik se kultuur van regverdiging die stelsel vorm behoort te gee. Die skeiding van magte se inhoud word ook aan ‘n historiese ontleding van Franse reg onderwerp om sodoende die rasionaal agter die onafhanklike administratiewe jurisdiksie in Frankryk te verduidelik. Dit behels ‘n uiteensetting van die Conseil d’État se struktuur, interne organisering en tweeledige funksie. Die beginsels wat die Franse stelsel beskryf, bo-en-behalwe die suiwer skeiding van magte, word bespreek en dit is by name die dualiteit van jurisdiksie, die skeiding van administratiewe en regsprekende owerhede, die skeiding van die administratiewe jurisdiksie en aktiewe administrasie, die leuse wanneer die administrasie beoordeel word, word daar steeds administreer, en die gemengde aard van administratiewe regsgedinge. Die openbare kontrak word bespreek as ‘n instrument van administrasie gegewe die konseptuele dubbelsinnigheid van daardie regskonsep, wat op die grens tussen publiek- en privaatreg lê, en as gevolg van die administrasie se toenemende kontraktuele aktiwiteit. In ‘n mate dui die Franse contrat administratif daarop dat bepaalde regsreëls ‘n uitbreiding van die breër beginsels, oorwegings en institusionele strukture is, soos in die voorafgaande afdelings bespreek word. Dus stel hierdie proefskrif ‘n benadering voor wat die verhouding tussen die administrasie en die regbank, sowel as die konseptuele raamwerk waarbinne die administratiefreg-stelsel funksioneer, beklemtoon. Deur hierdie benadering toe te pas op die Suid-Afrikaanse konteks, en op openbare kontraktering, word die konsepte en debatte geïdentifiseer en ondersoek wat ‘n gepaste administratiefreg-stelsel onderskryf. Dit vorm ‘n basis vir die ontwikkeling van ‘n bepaalde administratiefregstelsel en die uiteensetting van lewensvatbare alternatiewe tot die konseptuele raamwerk waarbinne die stelsel funksioneer.

L’étude de l’histoire constitutionnelle comparée montre l’essor de la protection du fond et la forme de la Constitution politique. Pour ce faire, le développent des conditions de la création l’implémentation progressive du contrôle a posteriori entre le XVIIIème et XXème, a permis la création d’une actio popularis. Le droit constitutionnel français que le droit constitutionnel colombien possèdent de mécanismes processuels dont les composants favorisent et relient la citoyenneté aux processus qui étaient auparavant à l’usage exclusif de ses représentants. Le but de cette étude est donc de réfléchir sur l’origine des fondements de l’incidence du droit du contentieux constitutionnel dans la préservation de la Constitution comme base de l’État. / If we analyze a posteriori constitutional review of legislation in Comparative law, it will show that State preservation can be made from the individual point of view by an action popularis. Therefore, both the French and the Colombian constitutional law whose components have procedural mechanisms foster a new citizenship in processes that were previously in the hands of their representatives. This essay aims to consider the influences of Procedural Constitutional Law in the preservation of the Constitution as the State’s cornerstone.

South Africa's transition to constitutional democracy marked the end of a system of government that perpetuated injustice on the basis of race. The previous system of government, underpinned by the principle of parliamentary supremacy, did not only exclude the majority of the population from public governance processes, it also economically exploited the majority of the population. As such, it laid the foundation for widespread poverty and inequalities in access to basic services. The Constitution of the Republic of South Africa, 1996 (the Constitution), is committed to correcting these past injustices and aims to establish a society based on social justice. This constitutional vision finds expression in the notion of transformative constitutionalism. Klare introduced the notion of transformative constitutionalism over a decade ago. For purpose of this thesis, the notion represents the socio-economic and political vision of post-apartheid South Africa to eradicate extreme poverty and inequalities in access to basic services as well as establish a democratic system of government that is inclusive, caring, participatory, representative and accountable. It captures the constitutional commitment to establish and maintain a society based on social justice by inter alia, eradicating poverty and inequalities in access to social services. The realisation of the socio-economic rights entrenched in the Bill of Rights of the Constitution (by all organs of state) is one of the ways in which to contribute towards meeting this transformative constitutional mandate, and by extension, striving towards the attainment of social justice. Although transformative constitutionalism and the achievement of a socially just society remain an ideal, the Constitution as the supreme law in the country, obligates the state, constitutive of public and private entities, to work towards its realisation, to the fullest extent possible. As part of post-apartheid institutional transformation, the Constitution established three spheres of government – national, provincial and local - which are distinct, interrelated and interdependent. All three spheres are obliged to operate in accordance with the principles of co-operative government and intergovernmental relations and are co-responsible for realising a number of constitutional objectives. Since 1996, the Constitution obliges local government (municipalities) to play an expanded "developmental" role. This has marked a move away from local government being regarded as merely a service delivery arm of government. xii The extended function of local government that came about with the constitutional dispensation finds expression in the notion of "developmental local government". This study is based on the premise that developmental local government must and can, together with the authorities in the other two spheres, contribute to transformative constitutionalism and social justice. Primarily, this study questions the extent to which the legal and policy framework on local government in South Africa enable local government (municipalities) to contribute towards realising the constitutional socio-economic rights underpinning the mandate of transformative constitutionalism. This study presents a review of relevant literature in order to establish links between the theoretical concepts underpinning this thesis. It examines the legal and policy framework on "developmental" local government in South Africa and analyses the central legal framework for the realisation of socio-economic rights at the local government level. In addition, the study explores the relevance and potential of local government indigent policies and Integrated Development Plans (IDPs) - as legally prescribed governance instruments - in contributing towards a more just society by examining their underlying legal and policy framework. It further distils from the theories and perspectives of social justice, benchmarks to guide local government towards achieving the transformative constitutional mandate aimed at social justice. Based on the legal, policy and other gaps identified, recommendations are made on how to optimise the potential of IDPs and municipal indigent policies in contributing towards achieving social justice. / PhD (Law), North-West University, Potchefstroom Campus, 2014

South Africa's transition to constitutional democracy marked the end of a system of government that perpetuated injustice on the basis of race. The previous system of government, underpinned by the principle of parliamentary supremacy, did not only exclude the majority of the population from public governance processes, it also economically exploited the majority of the population. As such, it laid the foundation for widespread poverty and inequalities in access to basic services. The Constitution of the Republic of South Africa, 1996 (the Constitution), is committed to correcting these past injustices and aims to establish a society based on social justice. This constitutional vision finds expression in the notion of transformative constitutionalism. Klare introduced the notion of transformative constitutionalism over a decade ago. For purpose of this thesis, the notion represents the socio-economic and political vision of post-apartheid South Africa to eradicate extreme poverty and inequalities in access to basic services as well as establish a democratic system of government that is inclusive, caring, participatory, representative and accountable. It captures the constitutional commitment to establish and maintain a society based on social justice by inter alia, eradicating poverty and inequalities in access to social services. The realisation of the socio-economic rights entrenched in the Bill of Rights of the Constitution (by all organs of state) is one of the ways in which to contribute towards meeting this transformative constitutional mandate, and by extension, striving towards the attainment of social justice. Although transformative constitutionalism and the achievement of a socially just society remain an ideal, the Constitution as the supreme law in the country, obligates the state, constitutive of public and private entities, to work towards its realisation, to the fullest extent possible. As part of post-apartheid institutional transformation, the Constitution established three spheres of government – national, provincial and local - which are distinct, interrelated and interdependent. All three spheres are obliged to operate in accordance with the principles of co-operative government and intergovernmental relations and are co-responsible for realising a number of constitutional objectives. Since 1996, the Constitution obliges local government (municipalities) to play an expanded "developmental" role. This has marked a move away from local government being regarded as merely a service delivery arm of government. xii The extended function of local government that came about with the constitutional dispensation finds expression in the notion of "developmental local government". This study is based on the premise that developmental local government must and can, together with the authorities in the other two spheres, contribute to transformative constitutionalism and social justice. Primarily, this study questions the extent to which the legal and policy framework on local government in South Africa enable local government (municipalities) to contribute towards realising the constitutional socio-economic rights underpinning the mandate of transformative constitutionalism. This study presents a review of relevant literature in order to establish links between the theoretical concepts underpinning this thesis. It examines the legal and policy framework on "developmental" local government in South Africa and analyses the central legal framework for the realisation of socio-economic rights at the local government level. In addition, the study explores the relevance and potential of local government indigent policies and Integrated Development Plans (IDPs) - as legally prescribed governance instruments - in contributing towards a more just society by examining their underlying legal and policy framework. It further distils from the theories and perspectives of social justice, benchmarks to guide local government towards achieving the transformative constitutional mandate aimed at social justice. Based on the legal, policy and other gaps identified, recommendations are made on how to optimise the potential of IDPs and municipal indigent policies in contributing towards achieving social justice. / PhD (Law), North-West University, Potchefstroom Campus, 2014

Submitted by Paulo André Nassar (paulo.nassar@gvmail.br) on 2012-01-24T19:26:50Z No. of bitstreams: 1 NASSAR - JDMTC - BKAB - final.pdf: 4839362 bytes, checksum: 527a7cf0c0a74ce36854726d39768c25 (MD5) / Approved for entry into archive by Vera Lúcia Mourão (vera.mourao@fgv.br) on 2012-01-24T19:57:38Z (GMT) No. of bitstreams: 1 NASSAR - JDMTC - BKAB - final.pdf: 4839362 bytes, checksum: 527a7cf0c0a74ce36854726d39768c25 (MD5) / Made available in DSpace on 2012-01-26T10:58:56Z (GMT). No. of bitstreams: 1 NASSAR - JDMTC - BKAB - final.pdf: 4839362 bytes, checksum: 527a7cf0c0a74ce36854726d39768c25 (MD5) Previous issue date: 2011-12-09 / In this dissertation, I aim to assess Courts’ transformation performance on housing rights issues. I begin making reference to transformative constitutionalism theory, presenting its main thesis, and then I point out the transformative features of 1988’s Brazilian Constitution and make the distinction between dirigiste constitutionalism and transformative constitutionalism. Then I present and comment both the housing problem in Brazil and the Brazilian legal doctrine on housing rights. After that, I propose a multidisciplinary methodology developed to assess Courts’ transformation performance on housing rights issues. Finally, I present an empirical study that makes a systematic content analysis of 50 'class action' filled by the 'Defensoria Pública do Estado de Sao Paulo against the Municipality of São Paulo, which aims to modify the municipal housing policies to accommodate the interests of marginalized groups. I conclude that in these issues, Courts has a limited transformation capacity, since social change occurs only when political, social and economic agents are also engaged "out of court" and when there is political will of the government. / Esta dissertação tem por objetivo avaliar o desempenho transformador do Poder Judiciário em questões relacionada ao direito à moradia. O estudo tem como referência teórica o constitucionalismo transformador, razão pela qual apresenta-se suas as principais teses, aponta-se as características transformadoras da Constituição brasileira de 1988, e propõe-se uma distinção entre constitucionalismo transformador e constitucionalismo dirigente. Faz-se apresentação e crítica do problema habitacional brasileiro e da doutrina jurídica brasileira sobre direito à moradia. Propõe-se uma metodologia multidisciplinar desenvolvida para aferir o desempenho transformador do Judiciário em questões sobre o direito à moradia. Feito isso, apresenta-se um estudo empírico que faz a sistematização e análise de 50 ações civis públicas propostas pela Defensoria Pública do Estado de São Paulo em face da Prefeitura de São Paulo, em que se pretende modificar as políticas habitacionais municipais para contemplar os interesses de grupos marginalizados. Conclui-se que, nessas questões, o Judiciário tem um desempenho transformador limitado, uma vez que a transformação social pleiteada ao Judiciário só ocorre se forças econômicas, sociais e políticas estiverem mobilizadas 'extra-judicialmente' para tanto e se houver vontade política do Administrador.

The legal historical development of fairness in the South African common law of contract is investigated in the context of the political, social and economic developments of the last four centuries. It emerges that the common law of contract is still dominated by the ideologies of individualism and economic liberalism which were imported from English law during the nineteenth century. Together with the theories of legal positivism and formalism which are closely related to parliamentary sovereignty and the classical rule of law, these ideals were transposed into the common law of contract through the classical model of contract law which emphasises freedom and sanctity of contract and promotes legal certainty. This approach resulted in the negation of the court’s equitable discretion and the limitation of good faith which sustain the social and economic inequalities that were created under colonialism and exacerbated under apartheid rule. In stark contrast, the modern human rights culture grounded in human dignity and aimed at the promotion of substantive equality led to the introduction of modern contract theory in other parts of the world. The introduction of the Constitution as grounded in human dignity and aimed at the achievement of substantive equality has resulted in a sophisticated jurisprudence on human dignity that reflects a harmonisation between its Western conception as based on Kantian dignity and ubuntu which provides an African understanding thereof. In this respect, ubuntu plays an important role in infusing the common law of contract with African values and in promoting substantive equality between contracting parties in line with modern contract theory. It is submitted that this approach to human dignity should result in the development of good faith into a substantive rule of the common law of contract which can be used to set aside an unfair contract term or the unfair enforcement thereof. / Private Law / LL. D.