The bold promise of the first foray by South Africa’s Constitutional Court into the field of contract law remains unfulfilled nearly seven years later. This paper takes issue with both the Supreme Court of Appeal’s reticent reaction to the CC decision in Barkhuizen v Napier and commentators’ criticism of the CC’s preference for indirect over direct horizontal application of constitutional rights. Proposing an expansive understanding of the reach and force of indirect horizontal application, it argues that the Bill of Rights requires a new, constitutionally informed, conception of the normative foundations of contractual obligation in place of the natural law approach, as articulated by Grotius, associated with the Roman-Dutch origins of South African contract law. Such a conception does not treat the enforcement of contracts as tantamount to enforcing a duty to keep one’s word, a duty of virtue, but as supporting the consensual creation and vindication of interpersonal rights when it is in the public interest to do so. The SCA’s continued rejection of good faith, fairness and reasonableness as principles on which parties and courts can rely directly, consequently rests on a conception of contractual obligation that is incompatible with the constitutionalization of South African law.
du Bois, Francois, Contractual Obligation and the Journey from Natural Law to Constitutional Law (March 27, 2015). University of Leicester School of Law Research Paper No 15-13.