[Home] [Databases] [WorldLII] [Search] [Feedback] South Africa: Supreme Court of Appeal

You are here:  SAFLII >> Databases >> South Africa: Supreme Court of Appeal >> 2002 >> [2002] ZASCA 35

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]

Brisley v Drotsky (3) (432/2000) [2002] ZASCA 35 (28 March 2002)

.RTF of original document

THE SUPREME COURT OF APPEAL

OF SOUTH AFRICA

Case no: 432/2000

REPORTABLE

In the matter between:

MADELEIN BRISLEY Appellant

and

ANTOINETTE DROTSKY Respondent

Before: Harms, Olivier, Streicher, Cameron and Brand JJA

Appeal heard: 7 March 2002

Judgment: 28 March 2002

Contract law – Relation to Constitution – Effect of boni mores

JUDGMENT

______________________________________________________

CAMERON JA:

[1] I have had the benefit of reading the judgment of Olivier JA, as well as that of Harms, Streicher and Brand JJA (‘the joint judgment’). I concur in the joint judgment, and wish to add some observations. All law now enforced in South Africa and applied by the courts derives its force from the Constitution. All law is therefore subject to constitutional control, and all law inconsistent with the Constitution is invalid. That includes the common law of contract, which is subject to the supreme law of the Constitution. The Bill of Rights applies to all law, and binds the judiciary no less than the legislature, the executive and all organs of state. In addition, the Constitution requires the courts, when developing the common law of contract, to promote the spirit, purport and objects of the Bill of Rights.

[2] These propositions, if they ever were controversial, are no longer so. They derive from the provisions of the Constitution itself,¹ as the Constitutional Court has interpreted and applied them.² They bear on this case. In it, the appellant asks this Court to reverse the doctrine that contracting parties may validly agree in writing to an enumeration of their rights, duties and powers in relation to the subject matter of a contract, which they may alter only by again resorting to writing. This Court nearly four decades ago upheld the validity of such clauses.³ It did so after some years of academic and judicial controversy, and after full argument, which canvassed the opposing contentions. Its decision expressly considered the paradox at the core of such provisions: that they limit contractual freedom, but do so by the prior design and agreement of the parties themselves,⁴ in the exercise of their contractual freedom, and in order to enhance certainty in their future dealings and to minimise disputes between them.

[3] The appellant’s attack invites us to reconsider that decision. We are obliged to do so in the light of the Constitution and of our ‘general obligation’, which is not purely discretionary,⁵ to develop the common law in the light of fundamental constitutional values. For the reasons the joint judgment gives, I do not consider that the attack can or should succeed. The Shifren decision represented a doctrinal and policy choice which, on balance, was sound. Apart from the fact of precedent and weighty considerations of commercial reliance and social certainty, that choice in itself remains sound four decades later. Constitutional considerations of equality do not detract from it. On the contrary, they seem to me to enhance it. As the joint judgment observes (para 7), it is fallacious to suggest that insistence on only written alterations to a contractual regimen necessarily protects the strong at the expense of the weak. In many situations the reverse is likely to be true. And where a contracting party, strong or weak, seeks to invoke the writing-only requirement in deceit or to attain fraud, the courts will not permit it to do so.⁶

[4] The jurisprudence of this Court has already established that, in addition to the fraud exception, there may be circumstances in which an agreement, unobjectionable in itself, will not be enforced because the object it seeks to achieve is contrary to public policy.⁷ Public policy in any event nullifies agreements offensive in themselves – a doctrine of very considerable antiquity.⁸ In its modern guise, ‘public policy’ is now rooted in our Constitution and the fundamental values it enshrines. These include human dignity, the achievement of equality and the advancement of human rights and freedoms, non-racialism and non-sexism.⁹

[5] It is not difficult to envisage situations in which contracts that offend these fundamentals of our new social compact will be struck down as offensive to public policy. They will be struck down because the Constitution requires it, and the values it enshrines will guide the courts in doing so. The decisions of this Court that proclaim that the limits of contractual sanctity lie at the borders of public policy will therefore receive enhanced force and clarity in the light of the Constitution and the values embodied in the Bill of Rights.

[6] I share the misgivings the joint judgment expresses about over-hasty or unreflective importation into the field of contract law of the concept of ‘boni mores’. The ‘legal convictions of the community’ – a concept open to misinterpretation and misapplication – is better replaced, as the Constitutional Court itself has suggested, by the ‘appropriate norms of the objective value system embodied in the Constitution’.¹⁰ What is evident is that neither the Constitution nor the value system it embodies give the courts a general jurisdiction to invalidate contracts on the basis of judicially perceived notions of unjustness or to determine their enforceability on the basis of imprecise notions of good faith.¹¹

[7] On the contrary, the Constitution’s values of dignity and equality and freedom require that the courts approach their task of striking down contracts or declining to enforce them with perceptive restraint.¹² One of the reasons, as Davis J has pointed out,¹³ is that contractual autonomy is part of freedom. Shorn of its obscene excesses,¹⁴ contractual autonomy informs also the constitutional value of dignity:

‘If we look at the law simply from the point of view of the persons on whom its duties are imposed, and reduce all other aspects of it to the status of more or less elaborate conditions in which duties fall on them, we treat as something merely subordinate, elements which are at least as characteristic of law and as valuable to society as duty. Rules conferring private powers must, if they are to be understood, be looked at from the point of view of those who exercise them. They appear then as an additional element introduced by the law into social life over and above that of coercive control. This is so because possession of these legal powers makes of the private citizen, who, if there were no such rules, would be a mere duty-bearer, a private legislator. He is made competent to determine the course of the law within the sphere of his contracts, trusts, wills, and other structures of rights and duties which he is enabled to build.’¹⁵

[8] The Constitution requires that its values be employed to achieve a careful balance between the unacceptable excesses of contractual ‘freedom’, and securing a framework within which the ability to contract enhances rather than diminishes our self-respect and dignity. The issues in the present appeal do not imperil that balance.

E CAMERON

JUDGE OF APPEAL