Contract law and the Constitution : Bredenkamp v Standard Bank of South Africa Ltd (SCA) : case note

• Author: Deeksha Bhana
• DOI: 10.10520/EJC-7978b27cb
• Published date: 01 January 2014
• Date: 01 January 2014
• Record Number: sapr1_v29_n2_a14
• Pages: 508-521

2010 4 SA 468 (SCA). This note draws on aspects of ch 2 and ch 3 of my PhD thesis

*

Constitutionalising contract law: Ideology, judi cial method and contractual autonomy’ at the School

of Law, University of the Witwatersrand, Johannesburg (2013). Thank you to Marius Pieterse (my

supervisor) and Minette Nortje for their comments on an earlier draft of this piece.

In this note, I use the terms fairness, reasonableness, justice and good faith loosely and

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interchangeably. No significance should be attached to the use of one term or the other.

See for instance Lewis ‘Fairness in South African contract law’ (2003) SALJ 330; Hawthorne

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‘Closing of the open norms in the law of contract’ (2004) THRHR 294; Lubbe ‘Taking fundamental

rights seriously: The Bill of Rights and its implications for the development of contract law’ (2004)

SALJ 395; Bhana and Pieterse ‘Towards a reconciliation of contract law and constitutional values:

Brisley and Afrox revisited’ (2005) SALJ 865 and Glover ‘Lazarus in the Constitutional Court: An

exhumation of the exceptio doli generalis?’ (2007) SALJ 449.

Napier v Barkhuizen 2006 4 SA 1 (SCA) para 7; see also Brisley v Drotsky 2002 4 SA 1 (SCA)

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paras 22; 24; 93; Afrox Healthcare Bpk v Strydom 2002 4 SA 1 (SCA) para 32; South African

Forestry Co Ltd v York Timbers 2005 3 SA 323 (SCA) para 30.

2007 5 SA 323 (CC) para 56.

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Contract law and the Constitution:

Bredenkamp v Standard Bank of South

Africa Ltd (SCA)*

1 Introduction

The concept of fairness has long been a point of contention in our common law

of contract. Indeed, many academic commentators have argued for greater

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(substantive) fairness in contracts on the basis of the horizontal application of the

Constitution of the Republic of South Africa, 1996. Nevertheless, the Supreme

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Court of Appeal (SCA) has maintained consistently that fairness per se is not a

legitimate ground for striking down a contract as invalid. In the words of Cameron

JA (as he then was), ‘the Constitution and its value system [do not] confer on

Judges a general jurisdiction to declare contracts invalid because of what they

perceive as unjust, or power to decide that contractual terms cannot be enforced

on the basis of imprecise notions of good faith’.3

In light of this, the Constitutional Court’s (CC) introduction of the two-staged

reasonableness test in Barkhuizen v Napier was a significant step in the direction

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of (substantive) contractual fairness. In terms of this test, a contractual term must

be objectively and subjectively reasonable in terms of the rights and values of the