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: