Common-law avoidance

• Citation: (2024) 141 SALJ 213
• DOI: https://doi.org/10.47348/SALJ/v141/i2a1
• Published date: 10 April 2024
• Pages: 213-256
• Author: Boonzaier, L.
• Date: 10 April 2024

213

https://doi.org/10.47348/SALJ/v141/i2a1

COMMON-LAW AVOIDANCE

LEO BOONZAIER†

Senior Lecturer, Department of Private Law, University of Cape Town

This article discusses an important trend in recent judgments of our appellate courts,

which I call ‘common-law avoidance’. Rather than applying established sets of

common-law principles, the courts have chosen to substitute them with other sets of

norms of their own invention, usually sourced in the Constitution. This marks a

departure from the status quo ante, in which it was accepted that the impact of the

Constitution on private-law disputes was to be felt through the common law, rather

than by displacing it. I discuss three cases that evidence this new pattern, spanning

the three branches of the law of obligations: AB v Pridwin Preparatory School,

which implicated the law of contract; Esorfranki Pipelines (Pty) Ltd v Mopani

District Municipality, involving delict; and Greater Tzaneen Municipality v

Bravospan 252 CC, which raised an issue in the law of unjustied enrichment.

I critically assess the trend exhibited in these cases, arguing that it is the result of

(among other factors) the courts’ preference for the Constitution’s more familiar and

discretionary standards, and of their increasing diculties in meeting the demands of

the common-law method.

Common law – Constitution of the Republic of South Africa, 1996 –

contract – del ict – unjustied enr ichment

I INTRODUCTION

This article discusses an important trend in recent judgments of our

appellate courts. Rather than applying established sets of common-law

principles, the courts have chosen to substitute them with other sets of

norms of their own invention. These norms are usually sourced, directly

or indirectly, in the Constitution, and the stated reason for using them, in

preference to the established common law, is that constitutional principle

requires it. But this marks a departure from the status quo ante, in which

it was accepted tha t the impact of the Constitut ion on private-l aw disputes

†BSocSc LLB (UCT) BCL DPhil (Oxon). https://orcid.org/0000-0001-6699-

1167. This article beneted from discussion with many colleagues, especially

Nurina A lly, Mitchell de Beer, Ma rtin Fischer, Cait lin Le Roith, Tshepo Mosaka

and Khomotso Moshikaro.

VOL 141

(Part 2)

2024

THE

SOUTH AFRICAN

LAW JOURNAL

(2024) 141 SALJ 213

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214(2 024) 141 THE SOUTH AFRICA N LAW JOURNAL

https://doi.org/10.47348/SALJ/v141/i2a1

was to be felt through the common law, rather than by displacing it.

Part III of this article presents three cases that evidence this new pattern

of ‘common-law avoidance’. They come from the three branches of the

law of obligations: contract, delict, and unjustied enrichment. Part IV

assesses them critically. But rst, in Part II, I explain the position that

prevailed during the rst two decades of the constitutional era, and which

these recent cases disrupt.

II BACKGROUND

Plainly, our 1996 Constitution was intended to have a major impact upon

all aspects of South Afr ican law. The Bill of Rights ex pressly ‘applies to all

law’, rather than being relevant only to the judicial review of legislation

and executive action, for example.1 And it expressly recognises, in s 8(2),

that constitutional rights bind private persons, not only organs of state.2

In these respec ts, it went further tha n the interim Constit ution3 — though

this al ready embodied the di rective, now famous as the n al Constitution’s

s 39(2), that the ‘spirit, purport and objects of the Bill of Rights’ should

inuence the development of the common law.4 This cluster of provisions

put it beyond doubt that the Constitution could be invoked in private

disputes of all kinds, even when no legislation was involved. And the

Constitutional Court, as is well known, has asserted an expansive vision

of constitutionalism, in wh ich the Constitution underpins and legitimates

the entire legal system — so that even pr ivate law can be seen as a form of

‘applied constitutional law’.5

Crucial ly, though, the Bi ll of Rights was to im pact private-law dispute s

in a specic way. Its in uence was to be felt by the development of the common

law, rather than by creating a rival body of distinctively constitutional

principles.6 This was already facially apparent from s39(2), whose text

1 Constitution of the Republic of South Africa, 1996, s 8(1).

2 Section 8(2).

3 Act 200 of 1993.

4 Section 35(3) of the interim Constitution read: ‘In the interpretation of any

law and the application and development of the common law …, a court shall

have due regard to the spirit, pur port and objects of [the inter im Bill of Rights]’.

Section 39(2) of the 1996 Constitution is a beefed-up version of this provision.

5 Matt ias Kumm ‘Who is a fraid of the tota l constitution? Const itutional ri ghts

as principles and the constit utionalization of private law’ (200 6) 7 German LJ 341

at 359 (discussing the German model of horizontal application, which heavily

inuenced our own). At one stage, the Constitutional Court suggested that

constitut ional issues shou ld be avoided where possible, but that a pproach ‘has long

since been abandoned in favourite of its opposite’, according to which ‘virtually

all issues … are, ultimately, constitutional’: Jordaan v City of Tshwane Metropolitan

Municipality2017 (6) SA 287 (CC) para 8.

6 We may pause here to note an ambiguity in the term ‘common law’.

Sometimes, it simply means law made by judges, rather than by legislatures.

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showed that the in uence of the Bill of Rights on i ndividuals’ conduct was

to be mediated by the common law. An important, but often overlooked,

point is that the same is true of s 8(2). This provision is avowedly more

robust than s 39(2): rather than merely requiring the courts to respect

constitutional values, it sought to bind the private parties themselves,

imposing duties upon them which are correlative to constitutional rights.

These dierences between the two provisions have drawn a remarkable

amount of academ ic attention.7 But they should not be allowed to obscure

the commonality, which is that s 8(2), no less than s 39(2), has eect not

outside the common law but through it. This is made explicit in s 8(3),

which says, ‘[w]hen applying a provision of the Bill of Rights to a natural

or juristic person in terms of subsection (2), a court, in order to g ive eect

to a right in the Bill, must apply, or if necessary, develop, the common

law … and may develop rules of the common law to limit the right’.

And so, while the Bill of Rights would undoubtedly have eect even

in purely private disputes, this was to take place in a specic way: by

changing the common-law rules rst, and then by applying those rules as

changed. This has been explained many times, with great clarity, by the

main drafter of these provisions.8

In that sense, any new remedy that a court devises — even one justied by the

Constitution, and which rivals or outanks a pre-constitutional one — creates

new common law by denition. But ‘the common law’ has another meaning,

richer with connotation and correspondingly less precise, in which it refers not

merely to judge-made law but to that part of a country’s substantive law that has

always (or al most always) been considered to be u nder the primar y custodianship

of our court s, which have sought to regu late that area comprehen sively, and have

devised associated techniques of law-creation and development. It is this second

meaning that is germane to this article, and which allows a contrast to be drawn

between acts of judicial law-making that take place within the common-law

tradition and those that do not. Admittedly, there is some danger in using the

terminology in this way, namely that it will reify the sense that the common law

is hermetically separated from the Constitution. That is not an accurate picture,

as this pa rt of the article attempts to explai n in detail.

7 The authorities are endless, though not always illuminating. Among the

more inuential texts are Alfred Cockrell ‘Private law and the Bill of Rights:

A threshold i ssue of horizontality’ in The Bill of R ights Compendium (1998); Stuart

Woolman ‘Application’ in St uart Woolman & Michael Bishop (eds) Constitutional

Law of South Af rica 2 ed (2013); Iain Curr ie & Johan de Waal Bill of Right s Handbook

6 ed (2013) ch 3.

8 See especially Halton Cheadle ‘Application’ in Halton Cheadle & Dennis

Davis (eds) South African Constitutional Law: The Bill of Rights 2 ed (SI 34, 2023)

ch 3, the rst ed ition of which appeared in 2002. A simil ar account was given in

Halton Chead le & Dennis Davis ‘T he application of the 1996 Const itution in the

private sphere’ (1997) 13 SAJHR 44.

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