The doctrine of pacta sunt servanda still operates but courts may refuse to enforce contractual terms that conflict with the constitutional values, even if the parties agreed to them. It is arguably now confusing to describe agreements as illegal or unlawful. It is suggested that the proper approach is to treat all such challenges as ‘unconstitutional’. The court must determine whether a term that is challenged is contrary to public policy, as evidenced by the constitutional values. These include:
- human dignity;
- achievement of equality;
- advancement of human rights and freedoms;
- non-racialism; and
- non-sexism.
See also:
- Contractual sanctity embraces dignity and equality
- Arbitrary deprivation: Sectional title endowments
- Arbitrary deprivation: Sufficient reason and fair procedure
- Barkhuizen v Napier (CCT72/05) [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC) (4 April 2007)
- Brisley v Drotsky(432/2000) [2002] ZASCA 35; 2002 (12) BCLR 1229 (SCA) (28 March 2002)
- Sasfin (Pty) Ltd v Beukes (149/87) [1988] ZASCA 94; [1989] 1 All SA 347 (A) (19 September 1988) per Smalberger JA.
Contractual sanctity embraces dignity and equality
The recent unanimous decision of the LAC must be applauded for upholding and reinforcing the constitutional rights concerning human dignity, the achievement of equality and the advancement of human rights and freedoms, non-racialism and non-sexism. Landman JA boldly and correctly stated that it is not permissible for a party to a ‘work’ agreement to change or contend that the legal relationship between them is something over than what they agreed. In his words it ‘holds important implications for the integrity of the legal framework of departments of State’. No policy obliged the LAC to ignore the terms of the agreement. In fact the terms could not be ignored. The agreement was clearly not a sham and the parties were in a relatively equal bargaining position. Legal effect had to be given to their conscious election of one contract or relationship over another.
Refer to: Dominant contractual consultancy terms.