Bona fides and ubuntu – A response to Dale Hutchison

• Author: Barnard-Naudé, J.
• Citation: 2021 Acta Juridica 85
• DOI: https://doi.org/10.47348/ACTA/2021/a4
• Pages: 85-106
• Date: 23 August 2021
• Published date: 23 August 2021

85

https://doi.org/10.47348/ACTA/2021/a4

Bona des and* ubuntu – A response to

Dale Hutchison

JACO BARNA RD-NAUDɆ

This paper is a response to Da le Hutchison’s recent arguments about

the role of fair ness in cont ract law af ter the Const itution. From the

point of view of transform ative constitutional ism, the paper argues

that the fairness ‘ debate’ in the South African law of contract should

be approached as what it so patently is, n amely, as evidence of a

deep ideological con ict that ha s existed i n our law of contrac t for a

very long ti me, and that this debate now exists within the contex t

of a larger debate about the appropri ate tran sformat ive reach of

the Constit ution. The arg ument takes the form of two ‘ dangerou s

supplements’ to Hutchison’s discourse. The r st of these supplements

contends that i ndeterm inacy is a s ymptom of the com mon law itself,

rather than a result of contr act law’s contact wit h the Constit ution.

The second dang erous supplement suggests a responsible judicia l

engagement w ith bona des and ubuntu, one that can exploit t he

strengths of both the common law and the Constitution and t hat

understa nds good fa ith and ubuntu to be ‘inter-lin king’ c onstitutional

values that should be enlisted in un ison or at least in resonance when

it comes to the question of fairness in our contemporary l aw of

contract. In conclusion, I oer a reading of Hutchison’s own politics

of contract law a nd contend that his is an a ltruistic pol itics committed

to the standard form. I contend that this politics of contract law is

consistent with a transformative understa nding of the post-apar theid

legal order.

‘Law, like every othe r cultural in stitution, is a place wher e we tell one

another stories about our relat ionships with ourselves, one another,

and authorit y. In this, law is no d ierent from the Boston Gl obe, the

CBS evening news, Mother Jones, or a law school facult y meeting.

* I n his famous ‘Force of law ’ essay, ‘Force of law: The “mystica l foundation

of authorit y’” (1990) 11 Cardozo Law Revie w 921, Derrid a wrote tha t ‘[a]

conjunction such a s “and” dares to d efy order, taxonomy, cla ssicatory log ic, no

matter how it work s: by analogy, disti nction or opposition’ (at 921). Therefore,

to place the conju nction ‘and’ between ‘ bona des’ and ‘ubuntu’ is to dare to defy

the order tha t would separ ate them. Such a de ance is, u ltimat ely, the centra l

contention of this contr ibution.

† B Com (Law) LLB L LD (Pret) M A (Cape Town); Research Profe ssor,

Universit y of the Free State.

2021 Acta Juridica 85

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86 THE FUT URE OF THE LAW OF CONTR ACT

https://doi.org/10.47348/ACTA/2021/a4

When we tell one another stories, we use languages and t hemes that

dierent pieces of the cultu re make available to us, and that limit the

stories we can tell. Since our stories in uence how we imagine, as

well as how we descr ibe, our relationships, ou r stories also lim it who

we can be’.1

I IN TRODUCTION

To ask after ubuntu in the South African law of contract, as Dale

Hutchison has done in a recent contribution,2 is to ask after the role

that the Constitution plays, or should play, in it. The reason why

this is the ca se is because the 1993 Interim Constitution’s3 epilogue

incorporated ubuntu into what was later called the ‘objective,

normative, value system’4 inaugurated by that same Constitution.

This the interim Constitution did by proclaiming that there was a

‘need for ubuntu’5 in South Africa. It is important, from the outset,

to note that the epilog ue articulated ubuntu as a ‘need’, not as

something that was merely desirable or nice to have. The reasons

why the drafters of the epilogue settled on the language of need, as

opposed to desire, do not have to detain us here. Suce it to s ay that

by the time of the drafting of the epilogue it was patently clear for

all to see that South Afr ica was in dire need of an ethic that could

be counter-posed (and const itutional ly so) to the spiral of blood shed

and violence that was the order of the day, even as a transition to

constitutiona l democracy wa s being ‘peacefu lly’ negotiated.

‘Ubuntu’ did not explicitly survive the transition from the

interim Constitution to the nal Constitution. Yet, because the

Constitutional Court’s jurisprudence was forged in the re of the

language of the interim Constitution, ‘ubuntu’ became not merely

a part amongst others in the Constitutiona l Court’s jurisprudence

– it in fact became an indispensable value through which the early

Constitutional Court came to terms with both the rest of the text

1 C D alton ‘An essay in the decon struction of cont ract doctri ne’ (1985) 94(5)

Yale Law Journa l 997 at 999.

2 D Hut chison ‘From bona des to ubuntu: The ques t for fairness in t he South

Afric an law of contract’ (2019) Acta Jur idica 99.

3 C onstitution of the Republ ic of South Africa Act 20 0 of 1993.

4 C armichele v M inister of Safe ty and Secur ity and Another (Ce ntre for Applied

Legal Studie s intervenin g) 2001 (4) SA 938 (CC) 961G.

5 C onstitu tion of the Republ ic of South Af rica (n 3), section en titled

‘Nationa l Unity and Rec oncilia tion’.

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