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-L AW AVOIDANCE

LEO BOONZAIER†

Senior Lecturer, Department of Private L aw, University of Cape Town

This arti cle discusses an impor tant trend in recent judgme nts of our appellate cou rts,

which I call ‘comm on-law avoidance’. Rathe r than applying establish ed sets of

common-law p rinciples, the cour ts have chosen to substitute th em with other sets of

norms of their o wn invention, usually sourc ed in the Constitution. Th is marks a

departure fro m the status quo ante, in which it wa s accepted that the im pact of the

Constitution on pr ivate-law disputes wa s to be felt through the common la w, rather

than by displac ing it. I discuss three case s that evidence thi s new pattern, spannin g

the three branche s of the law of obligations: A B v Pridwin Pr eparatory Scho ol,

which implicat ed the law of contract; Esor frank i Pipelines ( Pty) Ltd v Mopan i

Distric t Municipalit y, involving delict; and Great er Tzaneen Municipa lity v

Bravospan 252 CC, whi ch raised an issue in the law of unju stied enrichmen t.

I critically a ssess the trend exhibited in the se cases, arguing that it is t he result of

(among other facto rs) the courts’ preferen ce for the Constitution’s more familiar and

discretionar y standards, and of their in creasing dicultie s in meeting the demands of

the common-law method.

Common law – Con stitution of the Republ ic of South Afr ica, 1996 –

contract – del ict – unjustied enr ichment

I IN TROD UCTI ON

This ar ticle discus ses an importa nt trend in recent judgme nts of our

appellate cour ts. Rather tha n applying est ablished sets of common- law

principles, t he courts have chosen to subst itute them with other se ts of

norms of thei r own invention. These norm s are usuall y sourced, direct ly

or indirec tly, in the Constitution, a nd the stated reason for u sing them, in

preference to the esta blished common law, is that const itutional pr inciple

requires it. But t his marks a de parture fr om the status quo ante, i n 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. Th is article be neted from disc ussion with ma ny colleagues , especial ly

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

and Khomots o Moshikaro.

VOL 141

(Par t 2)

2024

THE

SOUTH AFRICAN

L AW JOUR NA L

(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 throu gh the common law, rather than by d isplacing it.

Part III of th is article prese nts three cases t hat evidence this new p attern

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

law of obligat ions: contract, delict , and unjustied en richment. Part I V

assesse s them critical ly. But rst, in Part II, I e xplain the posit ion that

prevailed du ring the rs t two decades of the const itutional era, a nd which

these recent case s disrupt.

II BACKGROUND

Plainl y, our 1996 Constit ution was intended to have a major i mpact upon

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

law’, rather than bein g relevant only to the judici al review of legis lation

and executive ac tion, for example.1 And it expre ssly recogni ses, in s 8(2),

that constit utional rig hts bind private pers ons, not only organ s 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, pur port and objects of the Bi ll of Right s’ should

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

put it beyond doubt that the Const itution could be invoked in pr ivate

disputes of a ll kinds, even when no leg islation was i nvolved. And the

Constitut ional Court, a s is well known, ha s asserted an ex pansive vision

of constitut ionalism, in wh ich the Constit ution underpins a nd legitimate s

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

‘applied constit utional 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 cre ating a rival b ody of distinct ively constitutiona l

principles .6 This was al ready facial ly apparent from s 39(2), whose text

1 Constitution of t he Republic of South Af rica, 1996, s 8(1).

2 Section 8(2).

3 Act 200 of 1993.

4 Section 35(3) of the interim C onstitution rea d: ‘In the interpr etation of any

law and the appl ication and development of the c ommon law …, a court sha ll

have due regard t o the spirit, pur port and objects of [the inter im Bill of Right s]’.

Section 39(2) of the 1996 Con stitution is a bee fed-up version of thi s provision.

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

as princ iples and the constit utionalizat ion of private law’ (200 6) 7 German LJ 341

at 359 (discussi ng the Germa n model of horizonta l application, wh ich heavily

inuenced ou r own). At one stage, the Const itutional Cou rt suggest ed that

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

since been aba ndoned in favourite of it s opposite’, according to wh ich ‘virtua lly

all is sues … are, ulti mately, constitut ional’: Jordaan v City of Tshwane Metrop olitan

Municipality 2017 (6) SA 287 (CC) para 8.

6 We may pause here to note an am biguity in t he term ‘common law’.

Sometime s, it simply means l aw made by judges, r ather than by legi slatures .

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COMMON-L AW AVOIDANCE 215

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

to be mediated by t he common law. An importa nt, but often overlooked,

point is that the s ame is true of s 8(2). This prov ision is avowedly more

robust than s 39(2): rather t han merely requir ing the courts t o respect

constitut ional values, it sought to bi nd the private par ties themselves,

imposing dut ies upon them which are cor relative to constitut ional right s.

These dier ences between the two provi sions have drawn a rema rkable

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

the commonal ity, which is that s 8(2), no less tha n s 39(2), has eect not

outside the common law but t hrough it. This i s made explicit in s 8(3),

which says, ‘[w]hen applying a pr ovision of the Bill of R ights to a natu ral

or jurist ic person in terms of su bsection (2), a court, in order to g ive eect

to a right in t he Bill, must apply, or if necess ary, develop, the common

law … and may develop ru les of the common law to li mit the right’.

And so, while t he Bill of Right s would undoubtedly have eec t even

in purely priva te disputes, thi s was to take place in a s pecic way: by

changi ng the common-law ru les rst, and then by a pplying those ru les as

changed. T his has been expl ained many ti mes, with great c larity, by the

main dr after of these provi sions.8

In that sen se, any new remedy that a cou rt devises — e ven one justied by the

Constit ution, and which riv als or outan ks a pre-const itutional one — cr eates

new common law by de nition. But ‘the com mon law’ has another me aning,

richer with con notation and cor responding ly less precise, i n which it refers not

merely to judge -made law but to that p art of a countr y’s substantive law th at has

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

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

devised a ssociated tech niques of law-crea tion and development. It is th is second

meanin g that is germ ane to this ar ticle, and which a llows a contrast t o be drawn

between act s of judicial law-m aking th at take place with in the common-l aw

tradit ion and those that do not . Admitted ly, there is some danger i n using the

termi nology in thi s way, namely that it wi ll reify the s ense that the commo n law

is hermetic ally separ ated from the Cons titution. That i s not an accurate pic ture,

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

7 The author ities are end less, though not a lways illum inating. A mong the

more inuent ial texts a re Alfred Co ckrell ‘Priv ate law and the Bil l of Rights:

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

Woolman ‘Application’ in St uart Woolman & Micha el 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 Se e especiall y Halton Cheadle ‘Applic ation’ in Halton Chead le & Dennis

Davis (eds) South Af rican Constitution al Law: The Bill of R ights 2 ed (SI 34, 2023)

ch 3, the rst ed ition of which appeared in 20 02. 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 SAJ HR 44.

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