Transformative Constitutionalism: Its Implications for the Law of Contract

• Jurisdiction: South Africa
• Pages: 3-13
• Published date: 27 May 2019
• Citation: (2009) 20 Stell LR 3
• Author: Dikgang Moseneke
• Date: 27 May 2019

3

TRANSFORMATIVE CONSTITUTIONALISM:

ITS IMPLICATIONS FOR THE LAW OF

CONTRACT

Dikgang Moseneke

Deputy Chief Justice of the Republic of South Africa*

1 Introduction

It is a privilege a s it is an honour to be part of this well-regarded annual

public lecture. My gratitude goes to the University of Stellenbosch, the Law

Faculty and Professor Sandy Liebenberg who extended this ki nd invitation.

      

associated with this lec ture series. This kind of collaboration unde rscores the

salutary point that legal academics, law pract itioners and the bench are joined

at the proverbial hip in the search for justice. Their daily chores may appear to

diverge and yet in essence they all are in common pu rsuit of legal trut h. They

are allies in the sea rch for a just society unde r the rule of law.

I hope to share ra ndom thoughts on tr ansformative constit utionalism by

debating what i mplications our new constitut ional ar rangements hold for the

common law, and for the law of contract i n particular. Being a sitting judge,

I may have to confront some of the issues I raise in this lecture in future

adjudication. It is thus not inappropriate to observe that none of the remarks

          

than joini ng the welter of academ ic and judicial discour se on the intra ctable

question of the intersection between public law gua rantees, as provided for in

sections 9 to 35 of our Bill of Rights, and the private law regulation of contract

between private par ties.

This vexed interfa ce of the private and public spheres of law ha s provoked

well-worked and sometimes instr uctive, if not incisive, writings by legal aca-

demics on t he direct or indi rect horizontal application of fundamental rights

to the com mon law.1 The debate is indeed welcome. It not only l ights up our

path towards t he just society of our cons titutional fancy, but also perm its us,

* This public lect ure was delive red at the Facult y of Law of the University of Stel lenbosch on 22 O ctober

2008 and forms par t of the Faculty’s annual constitutio nal law public lecture series , sponsored by Webber

Wentzel Bowens.

1 See in th is regard Woolman “Categor y Mistake s and th e Waiver of Co nstitutional Rights: A Response

to Deek sha Bhana on Barkhuizen” 2008 S ALJ 10; Woolman “The A mazing, Vanish ing Bill of Rights”

2007 SALJ 762; Cur rie & de Waal The Bill of Right s Handbook 5 ed (2005) Ch 3; Roe derer “Post-Matr ix

Legal Reason ing: Horizont ality and the R ule of Values in South A frican Law” 2003 SAJHR 57; Van der

Walt “Progressive Ind irect Horizont al Application of the Bill of Rights: Towards a Co- operative Relation

between C ommon-Law and Constitution al Jurispr udence” 2001 SA JHR 341; Sprigman & Osborne “ Du

Plessis is not De ad: South Afr ica’s 1996 Constitution and t he Application of th e Bill of Rights to P rivate

Disputes” 1999 SAJHR 25; C headle & Davis “The Application of the 1996 Constit ution in the Privat e

Sphere” 1997 SAJHR 44.

(2009) 20 Stell LR 3

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