ARTICLES

 

Harmonising Legal Values and uBuntu: The Quest for Social Justice in the South African Common Law of Contract

 

 

HM du Plessis^*

University of South Africa. dplesh@unisa.ac.za

 

 

---

ABSTRACT

In this article, a comparison is drawn between the role of good faith in the development of the Roman law of contract and the emerging role of ubuntu in the South African common law of contract. Firstly, it is shown how the idea of good faith as an open norm in Roman law was inspired by Greek philosophy and it is argued that ubuntu as an underlying value of the customary law can infuse good faith in the common law of contract in similar fashion. Secondly, an important distinction between the two concepts is identified. Although both concepts promote contractual justice between the contracting parties, ubuntu entails a further duty to promote the social and economic well-being of the parties as well as that of the greater community. Hence, in contrast to good faith, ubuntu is concerned with the promotion of substantive equality in private dealings.

Keywords: Bona fides; common law of contract; contractual fairness; good faith; legal historical comparison; legal pluralism; Roman law of contract; ubuntu.

---

 

 

The values of ubuntu ... if consciously harnessed can become central to the process of harmonising all existing legal values and practices with the Constitution. Ubuntu can therefore become central to a new South African jurisprudence and to the revival of sustainable African values as part of the broader process of the African renaissance.¹

 

1 Introduction

In the previous article,² it was shown how the Romans realised that their existing formal and rigid laws could not address the community's changing legal needs due to the influx of foreign traders into Rome. They introduced flexible legal procedures and a more normative approach to these legal transactions to ensure better contractual justice. This worked so well that the new flexible procedures and normative principles were transferred to the existing formalistic law. Gradually, the existing ius civile became subject to a more normative interpretation in the interests of justice through the use of the open norm of good faith. It was argued that in a similar way, ubuntu can be used to address legal pluralism in the South African legal system and its application as an underlying value of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution) could result in the better use of the open norm of good faith in the common law of contract.

In this article, two further themes are explored. The first theme is the harmonisation of values from different legal systems and the second theme deals with the concretisation of open norms intended to realise contractual justice. As in the previous article, with each theme the Roman law developments are discussed, followed by a comparison with the emerging role of ubuntu in the South African common law of contract. Finally, this article concludes by summarising the findings in both articles.

 

2 Harmonising values from different legal systems

2.1 Good faith: Harmonisation between Roman and Greek ideas?

It is generally accepted that Greek culture exerted some influence on Roman life during the later Republic³ including the Roman legal system.⁴However, the extent to which Roman law was influenced by Greek ideas remains a controversial issue, and this is also the case when determining the origin and development of bona fides (good faith) in Roman contract law. One theory is that bona fides originated from the Roman concept of fides and is therefore indigenous to Roman law, but it has also been argued that Greek influences can be identified in the development of bona fides, especially in its role in correcting and adapting the ius civile. The next section attempts to trace the development from fides to bona fides, after which the following section considers the possible foreign influences on bona fides as used to correct and adapt the ius civile.

2.1.1 From fides to bona fides

Law (ius) was not the only code that governed Roman society. Outside the law, there were various customs (mores)⁵that determined the social status of each Roman and prescribed his rights and duties.⁶ Zimmerman⁷ explains that Roman law tended to interfere with these social aspects of Roman life as little as possible because they were already governed by their own regulatory devices, one of which was fides. According to legend, fides was the first virtue in Rome to be personified as a goddess.⁸ Roman literary tradition dates the cult of Fides to the early monarchy, when it was introduced by the second king of Rome, Numa Pompilius (around 700 BC).⁹A temple was also built in her honour in the city of Rome at around 250 BC.¹⁰ The religious origin of fides illustrates the importance of fides to the Romans.¹¹ Furthermore, fides played an important role in the Roman monarchy and continued to do so during the republican period.¹²

It has been argued that despite its religious origins fides developed into a moral and social construct¹³ which manifested in various aspects of Roman society.¹⁴ As a result, it had various meanings depending on the context in which it was used.¹⁵ At its most essential, fides was described as "keeping one's word" or being "bound by one's word".¹⁶ In this context, Cicero is often quoted:

Moreover, the keeping of faith [fides] is fundamental to justice, that is constancy and truth in what is said and agreed. Therefore ... let us trust that keeping faith (fides) is so called because what has been said is actually done (fiat).¹⁷

Fides was considered a central virtue in Roman society¹⁸ and it was of the utmost importance for a Roman citizen to keep his or her word.¹⁹ Fidelity was one of the standard principles of Roman life²⁰ and failure to remain faithful to one's word would result in a social blot against one's reputation.²¹In this context fides recognises the moral duties of fidelity and faithfulness.²²

A more social construction of fides maintains that fides combines two meanings, namely trust and trustworthiness.²³ A relationship based on fides denoted a relationship between two parties where "the one trusted and relied upon the other".²⁴ In this context, fides required that a person should keep his word and display consideration and leniency towards those under his protection²⁵ or towards those to whom he had a social obligation.²⁶Accordingly, fides prescribed expected behaviour in daily life, and in particular what behaviour was expected in specific social relationships.²⁷ As both parties were bound by the principles of fides a mutual confidence existed between them, which was reciprocal in nature.²⁸ In this framework fides manifested as a principle that underlay social relations.²⁹ An example of a Roman relationship that was governed by fides was the relationship between a patron and his clients (clientela).³⁰Clients were poor Roman citizens (for example peasants, artisans or workers) who entered into a special relationship with a wealthy Roman citizen (a patron) for whom they executed work and from whom in turn they received social and legal protection.³¹ The relationship based on clientela created reciprocal duties which were governed by fides rather than law.³² This meaning of fides was also accentuated in the old fiduciary relationships (for example, between guardian and ward) which later developed into legal actions with the development of the bonae fidei iudicia.³³These relationships prescribed a specific standard of behaviour that was required from both parties. For example, the guardian had to administer his ward's affairs as if they were his own.³⁴

It has been asked how the indigenous Roman principle of fides³⁵that applied between Romans became a principle of the ius gentium which could be applied where foreigners were involved. Especially, as in early Rome, Roman fides was contrasted to the fides of other nations (including the Greeks).³⁶ One argument is that Roman fides developed into a universal principle that applied to all nations, as evidenced by its use in international treaties, where the parties took a solemn oath to keep to the covenants of the treaty faithfully and without malice.³⁷ This use of fides emphasised the essential meaning of fides, namely to keep one's word.³⁸ Furthermore, those who surrendered to a Roman conqueror would place themselves under his fides (and thus his protection), which incorporated both the ideas of keeping one's word, and leniency and consideration to those under one's protection.³⁹ As the principle of fides was used in international relations it has been argued that it developed into a universal principle that applied to all nations (and not only Romans) and became part of the ius gentium. Thereafter the ius gentium exerted an influence on the Roman fides by transforming it from a moral obligation into a legally binding one:

It was particularly in the contractual field that the ius gentium exercised its influence, primarily by strengthening the element of reciprocal confidence (fides) without which relations with foreigners were hardly possible.⁴⁰

Finally, it remains to explain how the concept of fides developed into bona fides. There is much uncertainty in this respect,⁴¹ but an attractive theory is proposed by Schermaier. He argues that the peregrine praetor probably modelled the bona fidei iudiciae on the Roman fiduciary relationships.⁴² One of the fiduciary relationships, fiducia,⁴³was legally enforceable and did not rely on fides alone.⁴⁴ The formula of the actio fiduciae demanded bene agere from the transferee (i.e. that he do well).⁴⁵ This required that the transferee should act "carefully and prudently" and with respect for the interests of the other party.⁴⁶ Schermaier argues that this standard of behaviour corresponds to that required under the bonae fidei iudiciae, which indicates that the actio fiduciae was most likely the forerunner of the bonae fidei iudicia.⁴⁷He further argues that the term bona fides was probably used to emphasise the required standard of behaviour.⁴⁸ Therefore, it referred not only to the meaning of fides of "keeping one's word" but also required that one act in accordance with a required standard of behaviour.

2.1.2 Bona fides as used to correct and adapt the ius civile

Even if it is accepted that the bonae fidei iudiciae can be traced back to the Roman concept of fides, some Greek influences can be identified in the use of bona fides to correct and adapt the ius civile. At the beginning of the Digest it is stated "ius est ars boni et aequi,"⁴⁹which can be translated as "the law is the art of goodness and fairness".⁵⁰ It has been argued that this text refers to the function of aequitas in the development of Roman law:

When the legal norms established in earlier law, written or not written, became inadequate to the social and economic necessities of the later age, the aequitas went into operation both in private law and in civil procedure as well as in judicial practice.⁵¹

In this section the function of bona fides as an expression of aequitas to correct the injustices of the formal law (summum ius) is investigated. Specific consideration is given to Cicero's De Officiis. First, because it provides examples of this function of bona fides during the later republican period, and secondly, because it has been argued that Cicero's use of the term aequitas led to its use as a legal term.⁵²

The phrase summum ius is an abbreviation of the maxim summum ius summa iniuria, which can be translated as "more law less justice".⁵³ It refers to the over-literal interpretation of laws that ultimately leads to injustice. In the first book of De Officiis, Cicero refers to the example of a man who, after agreeing to a thirty-day truce, destroys the enemy's fields at night and then justifies his behaviour by arguing that the truce referred to days and therefore did not include nights.⁵⁴ This led Cicero to argue that strict adherence to the law could lead to injustice.⁵⁵

Two further examples from Cicero have been used as evidence that the Romans treated bona fides as an expression of aequitas that was used to correct the injustices of the summum ius.⁵⁶First, Cicero tells of a case where the augurs were going to take an augury on the citadel and they ordered Tiberius Claudius Centumalus, whose house was on the Caelian Hill, to demolish that part of his house that was obstructing the auspices.⁵⁷Claudius advertised the house and then sold it to Publius Calpurnius Lanarius, after which the augurs made the same demand of Calpurnius and he complied.⁵⁸ When Calpurnius learned that Claudius had advertised the house after he was ordered to demolish a part of it, he compelled Claudius to go before an arbitrator as to "what compensation he ought to have made in accordance with the demands of good faith."⁵⁹ Calpurnius had to formulate the action on good faith, as the ius civile did not provide him with a remedy.⁶⁰ Cicero explains that in accordance with the Law of the Twelve Tables "it was enough that one [the buyer] should accept responsibility for those faults that were verbally specified" and "if the seller had denied these, he should face a double penalty".⁶¹ This meant that the seller was responsible for only the defects whose existence he expressly denied.⁶²Accordingly, Claudius would be responsible for Calpurnius' loss only if he denied that there was any demand by the augurs for the demolition of part of the house. The judge ordered Claudius to compensate Calpurnius for the loss he had incurred because Claudius had known the facts when he sold the house to Calpurnius and had not informed him.⁶³ In other words, if the seller knew about a fault or defect in the property but kept quiet about it, then he was responsible for it.⁶⁴ Consequently, Cicero argues that the judge "established that it was a part of good faith that the buyer should learn of any fault that the seller knew".⁶⁵ This example illustrates how bona fides was used to correct and adapt the ius civile by developing new rules to cater for new circumstances.

Then, in a further example, Cicero illustrates how a rule developed by the concept of bona fides could itself become unjust and require further development in terms of the bona fides.⁶⁶He refers to the case where Marcus Marius Gratidianus sold a house to Gaius Sergius Orata, which he had bought from Orata a few years before.⁶⁷ The house was under a liability (i.e. a third person had some right over the property) but Marius did not state this in the contract of sale.⁶⁸ When the matter went to court, Orata's representatives argued that the court should adhere to the rule that the buyer should learn of any fault that the seller knew.⁶⁹ In other words, he was arguing that the court should merely apply the existing rule (which rule derived from the bona fides) in accordance with the words and without further reference to the concept of bona fides. However, Gratidianus' representative argued for the application of aequitas (fairness) in that Orata was not deceived because as the previous owner he knew that the property was subject to a liability.⁷⁰ In other words, he was arguing for the adaptation of the rule in accordance with the principle of aequitas in order to achieve justice.

Cicero's use of the term bona fides together with the term aequitas indicates that Cicero regarded bona fides as an expression of aequitas which could be used to correct and adapt the ius civile where it would otherwise lead to injustice.⁷¹ Therefore, the use of bona fides in this context refers to the idea of aequitas. This is so because aequitas in the legal sense is usually described as a concept which refers to fairness and which is specifically contrasted with the strict following of the letter of the law.⁷² In turn, the Roman concept of aequitas has its origin in the Greek concept of epieíkeia (equity).⁷³ Aristotle defined epieíkeia as "a correction of law where it is defective owing to its universality"⁷⁴ and stated that:

[It] makes up for the defects of a community's written code of law. This is what we call equity; people regard it as just; it is, in fact, the sort of justice which goes beyond the written law.⁷⁵

Cicero and the other Roman orators understood aequitas as referring to epieíkeia.⁷⁶Cicero uses aequitas to refer to "fairness", which he contrasts with the strict following of the letter of the law.⁷⁷ In other words, where bona fides was used to correct and adapt the ius civile, it was with reference to these Greek philosophical ideas. So while it would appear that the Romans used existing indigenous concepts to develop a more equitable law of contract, there is evidence that they borrowed from Greek philosophy in order to develop their existing rigid and formalistic legal system into a fairer and more flexible system that incorporated normative considerations based on fairness.

2.2 Harmonisation of good faith and ubuntu in the South African common law of contract

It has been argued that the South African common law of contract has shown resistance to the influence of ubuntu, because "[i]t could well be argued that contract law already has specific mechanisms to deal with the type of problems which ubuntu addresses".⁷⁸ This argument ignores the constitutional ideal of transforming the existing traditional conservative legal culture into one based on plural values. As pointed out by Midgley and Keep,⁷⁹ the transformation into a cohesive plural legal culture is needed in order to legitimise the new legal system under the Constitution. In other words, the legal system and legal culture in South Africa will be legitimate only if they reflect the values of all the diverse cultures existing within South Africa.⁸⁰ They argue that "the notion of inclusivity that is inherent in ubuntu-botho makes it an ideal overarching vehicle for expressing shared values".⁸¹Consequently, the recognition of ubuntu is intimately linked with the Constitution's transformative ideals,⁸² especially because ubuntu as a legal concept originated in the constitutional ideal of restorative justice.⁸³

It may be asked how the common law of contract could reflect plural values and whether this is even possible. Midgley and Keep⁸⁴ argue that it is conceivable to harmonise what they call Western and African values because "there are universal values that transcend origins and boundaries". They refer to examples in South African jurisprudence where the Constitutional Court has harmonised values from different value systems.⁸⁵More recently, Rautenbach cited further examples in support her argument that the courts have indeed shown a willingness "to include other (indigenous) legal norms into their reasoning".⁸⁶

In the context of contract law, this harmonisation between common law and customary values can also be observed. As was argued in the previous article, the courts have linked both good faith and ubuntu to the aims of justice, reasonableness and fairness in contracts.⁸⁷

Midgley and Keep⁸⁸ argue that "harmonisation is possible if one focusses not so much on the cultural origins of a particular value, but on what the value seeks to express or achieve". In other words, although both concepts refer to justice, fairness and reasonableness, the question should be what justice, fairness and reasonableness in contract law should mean in the South African context today. As such, good faith should refer not merely to justice, fairness and reasonableness as understood in the common law tradition but should also be interpreted in accordance with a transformative constitutional approach including the underlying constitutional value of ubuntu. In their recent book, Bennett et al.⁸⁹specifically argue that ubuntu "imports a decidedly African understanding of right-doing to the law" and that the courts can use ubuntu to make the principle of good faith in contract law "more relevant to African conditions".⁹⁰

The Romans developed bona fides from the indigenous Roman concept of fides, but as an expression of aequitas it was influenced by Greek ideas. In particular, this influence can be observed in the role of bona fides to correct and adapt the ius civile to achieve justice and keep pace with the changing political, social and economic environment. In a similar manner, good faith as an existing principle of the common law of contract could also be developed in line with the ideals of ubuntu (an inherent value of customary law but also an underlying value of the Constitution).⁹¹ As will be argued below, infusing the concept of good faith with ubuntu will result in an improved promotion of substantive equality in the common law of contract.

 

3 Concretising open norms intended to realise contractual justice

3.1 Good faith: Balancing reciprocal individual rights and duties

Prior to the introduction of the bonae fidei contracts, the closest the early Roman law came to recognising an agreement was through the formal legal act of stipulation (stipulatio) which was already in use by the time of the law of the Twelve Tables.⁹² Gaius⁹³ explains that it entailed a formal verbal exchange of questions and answers between the debtor and the creditor. He mentions the following forms:

"Do you solemnly promise conveyance? I solemnly promise conveyance"; "Will you convey? I will convey"; "Do you promise? I promise"; "Do you promise on your honour? I promise on my honour"; "Do you guarantee on your honour? I guarantee on my honour?"; "Will you do? I will do."

As the stipulatio was a stricti iuris contract which formed part of the ius civile,⁹⁴the validity of the stipulatio came from the form used and not the agreement itself.⁹⁵ For example, it was still valid where it was induced by fraud, fear or mistaken belief.⁹⁶ Also, if the debtor used the wrong verb the creditor could not rely on the underlying agreement.⁹⁷

The stipulatio was a unilateral contract which can be defined as a contract "which creates only rights in one party and only duties in the other".⁹⁸ As Zimmerman⁹⁹ explains:

One party (the debtor) would be bound to perform towards the other (the creditor), but could not, under the same stipulation, acquire a counterclaim. Or, the other way round: the stipulation granted the creditor a right, without, at the same time, imposing a duty on him.

Where the parties wanted to enter into a bilateral contract (for example a sale) the parties had to create two stipulations, i.e. two unilateral contracts, one where the buyer promised to pay the price and another where the seller promised to deliver the thing.¹⁰⁰ This meant that the buyer could claim the thing even though he had not paid the price and the seller would be obliged to deliver.¹⁰¹ If the seller wanted to claim the price, he would need to institute a separate action and run the risk that the buyer could be insolvent at that time.¹⁰² This meant that in an action based on the stipulation to pay the price, the judge would not be permitted to take any account of the other stipulation for the delivery of the thing. Later, with the introduction and development of the exceptio doli, the seller would be able to defend an action by the buyer.¹⁰³

In contrast, a bona fide contract was bilateral in nature.¹⁰⁴ In other words, a contract "which gives rise to reciprocal obligations, each party having both rights and duties".¹⁰⁵ In addition, the judge in a bona fide action was directed to determine the case in accordance with the principle of good faith (ex fide bona).¹⁰⁶This enabled the judge to strike a balance between the interests of the parties, which was not possible where a unilateral contract was used. Specifically, Gaius states that "this involves that he [the judge] may take into account any counter-obligation due from the plaintiff under the same transaction, and may condemn the defendant only in the difference."¹⁰⁷Schermaier¹⁰⁸ argues that this required the judge to look at the relationship between the parties "in its origin and all its effects, within the framework of all surrounding circumstances and the conduct of the parties".

Although the judge would attempt to achieve justice and fairness between the parties, it is important to note that the judge would not consider the social and economic position or bargaining power of the parties when determining what would be considered fair and equitable:

The Roman lawyers worked within the framework of the existing social and procedural structures. Problems resulting from unequal bargaining power fell outside their sphere of competence and experience - as did social reform or social engineering in general.¹⁰⁹

Nevertheless, Winkel¹¹⁰ argues that the concept of bona fides did provide the judge with the necessary discretion to "take forms of undue influence or duress into account and so protect a weaker party". Hence bona fides could be used to protect a weaker party against exploitation by a stronger party and ensure justice and fairness between the parties. However, good faith did not focus on addressing the greater political, social and economic inequalities prevalent in Roman society itself. In other words, although bona fides could be used to protect a weaker party against exploitation by a stronger party in specific instances, it was not used to address the underlying unequal relationship between the parties in order to achieve a more egalitarian society. As Kelly eloquently remarks:¹¹¹

[T]he end result was not to turn the Republic into an egalitarian democracy in the modern sense. In the late Republic, wide differences of wealth and prestige existed ... and political power was shared and disputed among a relatively small number of important families, who exercised it by operating a complicated system of alliance and dependence.

3.2 uBuntu; Bringing about a more humane and egalitarian society

It has been argued that the concept of fairness in the common law of contract should encapsulate the values from both good faith and ubuntu.

Hence it is necessary to investigate what values these two concepts share, as well as how their values differ.

One important similarity between good faith in Roman law and ubuntu's emerging role in the common law of contract has already been identified. It has been shown how both concepts can be used as an open norm to correct and supplement the existing law where justice requires it. The court in Botha v Rich referred to this link between reciprocity and the principle of good faith and held that good faith "contains the necessary flexibility to ensure fairness."¹¹² The Court's statement is a confirmation of the historic nature of good faith to correct and adapt the existing laws where enforcing such laws would lead to injustice. It also aligns with the role of ubuntu as an open norm, as discussed in the previous article.¹¹³

However, there is one important aspect in which the values of these norms differ from each other. While good faith was employed to promote justice and fairness between the two contracting parties only, ubuntu goes further in that it also promotes the achievement of an egalitarian society. In other words, while good faith was not used to promote greater equality between the community members of Roman society, ubuntu does support the ideal of social justice and the promotion of a more egalitarian society in South Africa.¹¹⁴

The fact that ubuntu, as a legal concept, promotes both justice between the parties as well as a concern with the well-being of the community as a whole can be identified in Justice Langa's¹¹⁵ description of ubuntu in S v Makwanyane:

It is a culture which places some emphasis on communality and on the interdependence of the members of a community. It recognises a person's status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of the community such a person happens to be part of. It also entails the converse, however. The person has a corresponding duty to give the same respect, dignity, value and acceptance to each member of that community. More importantly, it regulates the exercise of rights by the emphasis it lays on sharing and co-responsibility and the mutual enjoyment of rights by all.

Therefore, ubuntu (like good faith in Roman law) entails a balancing of the reciprocal rights and obligations between the contracting parties themselves. As such, it requires a court to analyse the relationship between the parties "in its origin and all its effects, within the framework of all surrounding circumstances and the conduct of the parties".¹¹⁶ However, in contrast to good faith in Roman law,¹¹⁷ubuntu also encompasses a responsibility and duty of the individual to the greater community and aims to promote the political, social and economic interests of the community.¹¹⁸This can be identified where Justice Langa speaks of a corresponding duty towards each member of the community and the "sharing and co-responsibility and the mutual enjoyment of rights by all."¹¹⁹ In other words, ubuntu is also concerned with the realisation and promotion of the socioeconomic well-being of all the community members.¹²⁰

This idea of ubuntu can also be identified in Port Elizabeth Municipality v Various Occupiers, which deals with the interpretation and application of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 ("PIE").¹²¹ Justice Sachs held that:

The Constitution and PIE confirm that we are not islands unto ourselves. The spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of

Rights, which is nothing if not a structured, institutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern.¹²²

The fact that Justice Sachs states that ubuntu "combines individual rights with a communitarian philosophy" indicates that ubuntu would entail more than a balancing of interests between the parties only, but would also be concerned with the interests of the greater community. Specifically, Justice Sachs speaks of the obligation to "balance competing interests in a principled way and to promote the constitutional vision of a caring society."¹²³ So, although good faith historically refers to justice, reasonableness and fairness between the parties (without reference to their political, social or economic status), ubuntu as an underlying constitutional value requires the promotion of fairness in contracts that takes account of the ideas of restorative justice and the move towards a more egalitarian society, which would include a consideration of the political, social and economic status of the parties. This means that ubuntu does not only require that justice should be done between the parties with reference to their specific relationship; it would also require cognisance of the greater political, social and economic environment in which the transaction took place (i.e. the constitutional framework). Louw argues that the intention of the parties should be in line with the constitutional value system and its ambitions for an ideal constitutional community.¹²⁴ Although he does not refer to ubuntu, it can be argued that his view accords with this idea of ubuntu, especially as he later argues that "[i]n the context of the constitutional values (and, especially ubuntu) this translates to Woolman's succinct observation that '[o]ne can contract only to do those things that are constitutionally permitted.'"¹²⁵

The most prominent example of how ubuntu has influenced the common law of contract in this way can be found in Barkhuizen v Napier. In the introduction of the first article it was shown how the Constitutional Court linked the public policy consideration of simple justice between man and man to ubuntu rather than good faith.¹²⁶ The Court then laid down a two-part test for determining the fairness of a contract clause.¹²⁷ The first part of the test concerns the fairness of the clause itself and requires a balancing act between the policy considerations of freedom and sanctity of contract which gives effect to the constitutional values of freedom and human dignity on the one hand, and another policy consideration as reflected in a constitutional right or value (in casu the right to access to justice) in support of the non-enforcement of the contract on the other.¹²⁸ This examination is objective in nature as it deals with these values on an abstract level, as reflected in the terms of the contract itself.¹²⁹ The Court further held that if the clause objectively does not violate public policy, it must be determined whether the clause itself violates public policy in the light of the relative situations of the contracting parties, which would include an assessment of the bargaining positions of the parties.¹³⁰ This determination is subjective in nature.¹³¹ This subjective enquiry promotes socio-economic rights and substantive equality, and therefore it has been argued that this extension was inspired by ubuntu.¹³²The second part of the test for fairness investigates whether, in spite of the fact that the clause itself does not violate public policy, enforcement of the clause would be fair in the light of the circumstances which prevented compliance therewith.¹³³ Again, the second part of the test is subjective in nature and promotes substantive equality.¹³⁴Accordingly, it too is inspired by ubuntu.¹³⁵

The concern for the promotion of social justice and a more egalitarian society can also be identified in Botha v Rich. The court referred to its constitutional obligation in terms of section 39(2) to develop any legislation in accordance with the spirit, purport and objects of the Bill of Rights as well as the constitutional ideal of transforming "a society based on injustice and exclusion from the democratic process to one founded on the supremacy of the Constitution, the rule of law and the values of human dignity and equality".¹³⁶ The court also argued for an interpretation that would promote equality between the parties, which would indicate that the court was conscious of the constitutional aim of a more egalitarian society.¹³⁷ Clearly, this is in line with the idea of ubuntu that promotes social justice. Hence the court's judgment can be seen as an example of the harmonisation of ubuntu and good faith in the common law of contract in accordance with constitutional values (despite the fact that ubuntu is not mentioned).

 

4 Conclusion

Four themes have been discussed in order to investigate a more contextual legal history of good faith in Roman contract law in a way that could inform the emerging role of ubuntu in the South African common law of contract. In the first place, it was shown how good faith in Roman law was used to address legal pluralism and political, social and economic changes in the society and that ubuntu can be used in a similar way to legitimise the new legal system in South Africa. Secondly, it was argued that like good faith, which was used as an open norm to correct and adapt the existing rules of Roman law, ubuntu also requires a normative approach to the interpretation and application of the existing law. Thirdly, it was shown how the idea of good faith as an open norm in Roman law was inspired by Greek philosophy, and it was argued that ubuntu as an underlying value of the customary law can infuse good faith in the common law of contract in a similar fashion. Finally, an important distinction between the two concepts was identified. Although both concepts promote contractual justice between the parties, ubuntu entails a further duty to promote the social and economic well-being of the parties as well as of the greater community. Hence, in contrast to good faith, ubuntu is concerned with the promotion of substantive equality in private dealings.

 

Bibliography

Literature

Bennett TW, Munro AR and Jacobs PJ Ubuntu: An African Jurisprudence (Juta Claremont 2018)        [ Links ]

Bennett TW "Ubuntu: An African Equity" 2011 PELJ 30-61        [ Links ]

Berger A Encyclopedic Dictionary of Roman Law (The American Philosophical Society Philadelphia 1953)        [ Links ]

Bhana D "Contract Law and the Constitution: Bredenkamp v Standard Bank of South Africa (SCA)" 2014 SAPL 508-521        [ Links ]

Bhana D and Broeders N "Agreements to Agree" 2014 THRHR 164-176        [ Links ]

Bhana D and Meerkotter A "The Impact of the Constitution on the Common Law of Contract: Botha v Rich NO (CC)" 2015 SALJ 494-509        [ Links ]

Botha H "Human Dignity in Comparative Perspective" 2009 Stell LR 171220        [ Links ]

Buckland WW and McNair AD Roman Law and Common Law: A Comparison in Outline (Cambridge University Press London 1952)        [ Links ]

Cornell D and Muvangua N "Introduction" in Cornell C and Muvangua N (eds) uBuntu and the Law: African Ideals and Postapartheid Jurisprudence (Fordham University Press New York 2012) 1-27        [ Links ]

De Zulueta F The Institutes of Gaius Part I: Text with Critical Notes and Translation (Oxford University Press Clarendon 1946)        [ Links ]

De Zulueta F The Institutes of Gaius Part II: Commentary (Oxford University Press Clarendon 1953)        [ Links ]

Du Plessis HM "Legal Pluralism and the Use of Open Norms in the South African Common Law of Contract" 2019 PELJ 1-38        [ Links ]

Du Plessis HM The Harmonisation of Good Faith and Ubuntu in the South African Common Law of Contract (LLD-thesis University of South Africa 2017)        [ Links ]

Griffin MT and Atkins EM (eds) Cicero on Duties (Cambridge University Press Cambridge 1991)        [ Links ]

Gruen ES "Greek Pistis and Roman Fides" 1982 Athenaeum 50-68        [ Links ]

Hawthorne L "The 'New Learning' and Transformation of Contract Law: Reconciling the Rule of Law with the Constitutional Imperative to Social Transformation" 2008 SAPL 77-99        [ Links ]

Hawthorne L "Contract Law: Contextualization and Unequal Bargaining Position Redux" 2010 De Jure 395-409        [ Links ]

Hiemstra VG and Gonin HL Trilingual Legal Dictionary: Latin-Afrikaans-English 3^rd ed (Juta Paarl 2008)        [ Links ]

Himonga C, Taylor M and Pope A "Reflections on Judicial Views of Ubuntu" 2013 PELJ 369-427        [ Links ]

Jolowicz HF Roman Foundations of Modern Law (Oxford University Press Clarendon 1957)        [ Links ]

Kaser M Roman Private law 13^th ed (Dannenbring R tr, 4^th ed, University of South Africa Pretoria 1984)        [ Links ]

Keep H and Midgley R "The Emerging Role of Ubuntu-Botho in Developing a Consensual South African Legal Culture" in Bruinsma F and Nelken D (eds) Recht der Werkelijkheid: Explorations in Legal Cultures (Reed Business BV Gravenhage 2007) 29-51        [ Links ]

Kelly JM Roman Litigation (Oxford University Press Clarendon 1966)        [ Links ]

Kunkel W An Introduction to Roman Legal and Constitutional History 6^th ed (Kelly JM tr, 2^nd ed, Oxford University Press Clarendon 1985)        [ Links ]

Lind LR "The Republic and Roman Morality" in Deroux C (ed) Studies in Latin Literature and Roman History Volume 5 (Latomux Brussels 1989) 534        [ Links ]

Litvinoff S "Good Faith" 1997 Tul L Rev 1645-1674        [ Links ]

Louw AM "Yet another Call for a Greater Role for Good Faith in the South African Law of Contract: Can We Banish the Law of the Jungle, while Avoiding the Elephant in the Room?" 2013 PELJ 43-120        [ Links ]

Mokgoro JY "Ubuntu and the Law in South Africa" 1998 PELJ 1-11        [ Links ]

Mommsen T and Krueger (eds) The Digest of Justinian (University of Pennsylvania Press Philadelphia 1985)        [ Links ]

More MP "Philosophy in South Africa under and after Apartheid" in K Wiredu (ed) A Companion to African Philosophy (Blackwell Malden 2004) 149-160        [ Links ]

Naudé T "The Function and Determinants of the Residual Rules of Contract Law" 2003 SALJ 820-840        [ Links ]

Nicholas B An Introduction to Roman Law (Oxford University Press Clarendon 1962)        [ Links ]

Rautenbach C "Exploring the Contribution of Ubuntu in Constitutional Adjudication - Towards the Indigenization of Constitutionalism in South Africa?" in Fombad CM (ed) Constitutional Adjudication in Africa (Oxford University Press Oxford 2017) 293-312        [ Links ]

Rautenbach C "Legal Reform of Traditional Courts in South Africa: Exploring the Links between Ubuntu, Restorative Justice and Therapeutic Jurisprudence" 2015 AJICL 275-304        [ Links ]

Roberts "Rhetorica" in Ross WD (ed) The Works of Aristotle Translated into English (Oxford University Press London 1963) vol 11        [ Links ]

Ross WD "Ethica Nicomachea" in Ross WD (ed) The Works of Aristotle Translated into English (Oxford University Press London 1963) vol 9        [ Links ]

Schermaier MJ "Bona Fides in Roman Contract Law" in Zimmerman R and Whittaker S (eds) Good Faith in European Contract Law (Cambridge University Press Cambridge 2000) 63-92        [ Links ]

Schulz F Principles of Roman Law (Wolff M tr, Clarendon Press Oxford 1936)        [ Links ]

Schulz F History of Roman Legal Science (Oxford Clarendon 1953)        [ Links ]

Sic M "Fiducia and Pignus in Sources of Post-Classical Roman Law -Synonyms or Terms Utilized for Different Kinds of Pledges?" 2008 Zbornik Radova 143-172        [ Links ]

Thomas Ph J "The Roman Law Tradition" 2003 De Jure 101-114        [ Links ]

Tuori K "Aequitas" in Bagnall RS et al (eds) The Encyclopedia of Ancient History (Blackwell Chichester 2013) 132        [ Links ]

Van Warmelo P An Introduction to the Principles of Roman Civil Law (Juta Cape Town 1980)        [ Links ]

Verboven KS "Fides" in Bagnall RS et al (eds) The Encyclopedia of Ancient History (Blackwell Chichester 2013) 2670        [ Links ]

Wallis M "Commercial Certainty and Constitutionalism: Are they Compatible?" 2016 SALJ 545-568        [ Links ]

Watson A The Digest of Justinian (University of Pennsylvania Press Philadelphia 2009-2011)        [ Links ]

Watson A The Law of the Ancient Romans (Southern Methodist University Press Dallas 1970)        [ Links ]

Winkel L "Forms of Imposed Protection in Legal History, Especially in Roman Law" 2010 Fundamina 478-587        [ Links ]

Woolman S "Category Mistakes and the Waiver of Constitutional Rights: A Response to Deeksha Bhana on Barkhuizen" 2008 SALJ 10-24        [ Links ]

Zimmerman R The Law of Obligations: Roman Foundations of the Civilian Tradition (Juta Cape Town 1990)        [ Links ]

Case law

Barkhuizen v Napier 2007 5 SA 323 (CC)

Bhe v Magistrate, Khayelitsha (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole; South African Human Rights Commission v President of the Republic of South Africa 2005 1 SA 580 (CC)

Botha v Rich 2014 4 SA 124 (CC)

Dikoko v Mokhatla 2006 6 SA 235 (CC)

Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 1 SA 256 (CC)

Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC)

S v Makwanyane 1995 3 SA 391 (CC)

Legislation

Constitution of the Republic of South Africa, 1996

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998

List of Abbreviations

AJICL African Journal of International Comparative Law

Fundamina Fundamina: A Journal of Legal History

PELJ Potchefstroom Electronic Law Journal

PIE Prevention of Illegal Eviction from and Unlawful

Occupation of Land Act 19 of 1998 SALJ South African Law Journal

SAPL South African Public Law

Stell LR Stellenbosch Law Review

THRHR Tydskrif vir die Hedendaagse Romeins-Hollandse Reg

Tul L Rev Tulane Law Review

 

 

Date Submission 13 June 2019
Date Revised 4 August 2019
Date Accepted 4 August 2019
Date published 23 October 2019

 

 

* Hanri du Plessis. LLB LLM (UP) LLD (UNISA). Senior Lecturer, Department of Private Law, School of Law, University of South Africa. E-mail: dplesh@unisa.ac.za. The article forms part of research undertaken during a period of research and development leave granted by Unisa in 2019. Parts of this article are also based on research forming part my unpublished thesis (Du Plessis Good Faith and Ubuntu in South African Contract Law). The research for my thesis was funded by a grant from Unisa's Academic Qualification Improvement Programme from 2014 to 2017. Any opinions or conclusions expressed in this article are my own and Unisa does not accept any liability for them. Similarly, all errors remain my own.
1 Mokgoro 1998 PELJ 11.
2 Du Plessis 2019 PELJ https://journals.assaf.org.za/index.php/per/article/view/6456
3 Kaser Roman Private Law 3-4; Nicholas Introduction to Roman Law 8.
4 Kaser Roman Private Law4; Schulz Roman Legal Science 38-39 refers to this period in Roman law as the "Hellenistic period". For a general account of possible Greek influences on Roman law see Kunkel Roman History 98-105.
5 Berger Encyclopedic Dictionary of Roman Law 587 sv "Mores (mos)".
6 Schulz Principles of Roman Law 21. Also see Kaser Roman Private Law 28-29.
7 Zimmerman Law of Obligations 350.
8 Verboven "Fides" 2670. Also see Schermaier "Bona Fides in Roman Contract Law" 78-79 n 96 argues that the goddess "Fides was probably an idolisation of the concept of fides".
9 Verboven "Fides" 2670; Gruen 1982 Athenaeum 59.
10 Verboven "Fides" 2670; Schulz Principles of Roman Law 224.
11 Lind "The Republic and Roman Morality" 59.
12 Verboven "Fides" 2670; Schermaier "Bona Fides in Roman Contract Law" 77-79; Lind "The Republic and Roman Morality" 6-7.
13 Sic 2008 Zbornik Radova 164-165; Litvinoff 1997 Tul L Rev 1651; Lind "The Republic and Roman Morality" 6. The original meaning of fides is uncertain and various theories exist (Gruen 1982 Athenaeum 51).
14 Lind "The Republic and Roman Morality" 7.
15 Verboven "Fides" 2670; Schermaier "Bona Fides in Roman Contract Law" 78; Schulz Principles of Roman Law 223.
16 Schulz Principles of Roman Law 223, who describes this definition of fides as the essential meaning of fides. Also see Schermaier "Bona Fides in Roman Contract Law" 78; Kaser Roman Private Law 33.
17 Cicero De Officiis 1 23 (quoted from Griffin and Atkins Cicero on Duties).
18 Verboven "Fides" 2670; Lind "The Republic and Roman Morality" 8; Schulz Principles of Roman Law 223.
19 Zimmerman Law of Obligations 115.
20 Schulz Principles of Roman Law 223.
21 Verboven "Fides" 2670; Schulz Principles of Roman Law 224.
22 Sic 2008 Zbornik Radova 165; Schermaier "Bona Fides in Roman Contract Law" 77; Schulz Principles of Roman Law 223.
23 Sic 2008 Zbornik Radova 165 esp n 67, 168; Schermaier "Bona Fides in Roman Contract Law" 79; Griffin and Atkins Cicero on Duties xlvi; Lind "The Republic and Roman Morality" 7.
24 Griffin and Atkins Cicero on Duties xlvi. Also see Schermaier "Bona Fides in Roman Contract Law" 79.
25 Schermaier "Bona Fides in Roman Contract Law" 79.
26 Verboven "Fides" 2670.
27 Sic 2008 Zbornik Radova 165.
28 Lind "The Republic and Roman Morality" 6.
29 Verboven "Fides" 2670.
30 Schermaier "Bona Fides in Roman Contract Law" 79; Zimmerman Law of Obligations 350-351; Berger Encyclopedic Dictionary of Roman Law 391 sv "Clientes".
31 Winkel 2010 Fundamina 582; Zimmerman Law of Obligations 350-351; Berger Encyclopedic Dictionary of Roman Law 391 sv "Clientes".
32 Zimmerman Law of Obligations 351. Also see Berger Encyclopedic Dictionary of Roman Law 391 sv "Clientes".
33 Schermaier "Bona Fides in Roman Contract Law" 80.
34 Schermaier "Bona Fides in Roman Contract Law" 80.
35 Lind "The Republic and Roman Morality" 6.
36 Sic 2008 Zbornik Radova 165 n 68; Lind "The Republic and Roman Morality" 8; Schulz Principles of Roman Law 223. Buckland and McNair Roman Law 280 explains the difference between Roman fides and Greek fides as follows: "[N]o Greek trusted another unless he had the matter set down in writing."
37 Sic 2008 Zbornik Radova 165, esp n 71.
38 Schermaier "Bona Fides in Roman Contract Law" 78-78; Lind "The Republic and Roman Morality" 7.
39 Schermaier "Bona Fides in Roman Contract Law" 78-79.
40 Berger Encyclopedic Dictionary of Roman Law 529 sv "Ius Gentium". Also see Kaser Roman Private Law 3.
41 Sic 2008 Zbornik Radova 166 n 75.
42 Schermaier "Bona Fides in Roman Contract Law" 80.
43 Fiducia can be described as "[a]n agreement (pactum fiduciae) in addition to a transfer of property through mancipatio (or in iure cessio) by which the transferee assumes certain duties as to the property transferred or the later retransfer thereof to the transferor" (Berger Encycopledic Dictionary of Roman Law 471 sv "Fiduciae"). See further Kaser Roman Private Law 126-127.
44 Schermaier "Bona Fides in Roman Contract Law" 80.
45 Schermaier "Bona Fides in Roman Contract Law" 82.
46 Schermaier "Bona Fides in Roman Contract Law" 82. Also see Kaser Roman Private Law 126-127.
47 Schermaier "Bona Fides in Roman Contract Law" 82.
48 Schermaier "Bona Fides in Roman Contract Law" 82. Also see Sic 2008 Zbornik Radova 166 n 75; Schulz Principles of Roman Law 228.
49 D 1 1 1pr (quoted from Mommsen and Krueger Digest of Justinian).
50 Quoted from Watson Digest of Justinian. Also see Berger Encyclopedic Dictionary of Roman Law 354 sv "Aequitas (aequum)".
51 Berger Encyclopedic Dictionary of Roman Law 354 sv "Aequitas (aequum)".
52 Tuori "Aequitas" 132. Thomas 2003 De Jure 105 further argues that the De Officiis is an important source on Roman moral philosophy.
53 Hiemstra and Gonin Trilingual Legal Dictionary 294.
54 Cicero De Officiis 1 33 (Griffin and Atkins Cicero on Duties).
55 Tuori "Aequitas" 132.
56 Tuori "Aequitas" 132; Schermaier "Bona Fides in Roman Contract Law" 70.
57 Cicero De Officiis 3 66 (Griffin and Atkins Cicero on Duties).
58 Cicero De Officiis 3 66 (Griffin and Atkins Cicero on Duties).
59 Cicero De Officiis 3 66 (Griffin and Atkins Cicero on Duties).
60 Schermaier "Bona Fides in Roman Contract Law" 67.
61 Cicero De Officiis 3 65 (quoted from Griffin and Atkins Cicero on Duties). See further the discussion by Schermaier "Bona Fides in Roman Contract Law" 67.
62 Schermaier "Bona Fides in Roman Contract Law" 67.
63 Cicero De Officiis 3 66 (Griffin and Atkins Cicero on Duties).
64 Cicero De Officiis 3 65 (Griffin and Atkins Cicero on Duties).
65 Cicero De Officiis 3 67 (Griffin and Atkins Cicero on Duties).
66 Schermaier "Bona Fides in Roman Contract Law" 68.
67 Cicero De Officiis 3 67 (Griffin and Atkins Cicero on Duties).
68 Cicero De Officiis 3 67 (Griffin and Atkins Cicero on Duties).
69 Cicero De Officiis 3 67 (Griffin and Atkins Cicero on Duties).
70 Cicero De Officiis 3 67 (Griffin and Atkins Cicero on Duties).
71 Schermaier "Bona Fides in Roman Contract Law" 70.
72 Tuori "Aequitas" 132; Berger Encyclopedic Dictionary of Roman Law 354 sv "Aequitas (aequum)".
73 Schermaier "Bona Fides in Roman Contract Law" 65 n 9; Schulz Roman Legal Science 74. However, the extent of the Greek influence on the Roman concept of aequitas is the subject of extensive academic debate (see for example Tuori "Aequitas" 132).
74 Artistotle Ethica Nicomachea 113727 (quoted from Ross "Ethica Nicomachea").
75 Aristotle Rhetorica 137424-27 (quoted from Roberts "Rhetorica").
76 Schulz Roman Legal Science 74. Jolowicz Roman Foundations 56 argues that Cicero and other rhetorical writers were aware of the indigenous origin of aequitas although he concedes that their thinking reflects a Greek influence.
77 Cicero De Officiis 3 67 (Griffin and Atkins Cicero on Duties) (see again the discussion in the text at n 70 above). Also see Kaser Roman Private Law 28, who maintains that aequitas "denoted justice, especially that justice which the praetor applied by using his magisterial law to overcome the rigidity of the ius civile."
78 Bennett 2011 PELJ 44.
79 Keep and Midgley "Emerging Role of Ubuntu-Botho" 48.
80 Keep and Midgley "Emerging Role of Ubuntu-Botho" 30, 48.
81 Keep and Midgley "Emerging Role of Ubuntu-Botho" 448. Also see Rautenbach "Exploring the Contribution of Ubuntu" 309.
82 Himonga, Taylor and Pope 2013 PELJ 371.
83 See the discussion in Du Plessis 2019 PELJ 23-24.
84 Keep and Midgley "Emerging Role of Ubuntu-Botho" 47.
85 Keep and Midgley "Emerging Role of Ubuntu-Botho" 47-48. As an example, they cite Dikoko v Mokhatla 2006 6 SA 235 (CC), where the Court harmonised the values underlying the Roman law remedy of amende honorable with that of ubuntu. Also see Rautenbach 2015 AJICL 296-298; and Rautenbach "Exploring the Contribution of Ubuntu" 300-301.
86 Rautenbach "Exploring the Contribution of Ubuntu" 302.
87 See the discussion in Du Plessis 2019 PELJ 4.
88 Keep and Midgley "Emerging Role of Ubuntu-Botho" 48.
89 Bennett, Munro and Jacobs Ubuntu 122.
90 This is explored in more detail in the next theme (see para 3.2 below).
91 Himonga, Taylor and Pope 2013 PELJ 371.
92 Nicholas Introduction to Roman Law 159; Zimmerman Law of Obligations 68.
93 Gaius Inst 3 92 (quoted from De Zulueta Institutes of Gaius Part I).
94 Zimmerman Law of Obligations 91; De Zulueta Institutes of Gaius Part II 151.
95 Zimmerman Law of Obligations 82-84; Kaser Roman Private Law 207. However, immoral, illegal or impossible stipulations were not valid (Watson Law of the Ancient Romans 60-61).
96 See the discussion in Du Plessis 2019 PELJ 21. For further examples see Gaius Inst 3 97-101 (quoted from De Zulueta Institutes of Gaius Part I).
97 Zimmerman Law of Obligations 70.
98 Nicholas Introduction to Roman Law 162. Also see Zimmerman Law of Obligations 91; Kaser Roman Private Law 169; De Zulueta Institutes of Gaius Part II 151.
99 Zimmerman Law of Obligations 91.
100 Zimmerman Law of Obligations 91; Nicholas Introduction to Roman Law 162.
101 Nicholas Introduction to Roman Law 162.
102 Nicholas Introduction to Roman Law 162.
103 Van Warmelo Principles of Roman Civil Law paras 424, 699-704; Watson Law of the Ancient Romans 6; Nicholas Introduction to Roman Law 162 n 3. However, as mentioned in the previous article, the exceptio doli was introduced in 66 BC when the bona fide iudiciae already existed (see Du Plessis 2019 PELJ 21).
104 Also referred to as synallagmatic contracts (Van Warmelo Principles of Roman Civil Law para 441).
105 Nicholas Introduction to Roman Law 162; Van Warmelo Principles of Roman Civil Law para 441.
106 See the discussion in Du Plessis 2019 PELJ 14-15.
107 Gaius Inst 4 61 (quoted from De Zulueta Institutes of Gaius Part I). Also see Schermaier "Bona Fides in Roman Contract Law" 82; Nicholas Introduction to Roman Law 164.
108 Schermaier "Bona Fides in Roman Contract Law" 84 n 129. Also see Zimmerman Law of Obligations 140, 428; Kaser Roman Private Law 174-175.
109 Zimmerman Law of Obligations 349-350.
110 Winkel 2010 Fundamina 578-579.
111 Kelly Roman Litigation 1.
112 Botha v Rich 2014 4 SA 124 (CC) para 45 (hereafter Botha v Rich).
113 Du Plessis 2019 PELJ 25-28.
114 More "Philosophy in South Africa" 156; Mokgoro 1998 PELJ 3.
115 S v Makwanyane 1995 3 SA 391 (CC) para 224 (hereafter S v Makwanyane). Louw 2013 PELJ 74 also refers to this definition of ubuntu when dealing with fairness in contracts.
116 Cf the quote by Schermaier on the role of good faith in Roman law at n 108 above. This is supported by Louw 2013 PELJ 66 n 92, who views ubuntu as "a mechanism for the infusion and promotion of a culture of co-operation in our contract law" and argues that such an approach "would be in line with the courts' recognition of an ethical standard of good faith based in ubuntu, and which would demand mutual respect for the interests and expectations of contracting parties." Also see Hawthorne 2008 SAPL 89-90.
117 Cf the discussion in the text at n 109 above.
118 Rautenbach "Exploring the Contribution of Ubuntu" 296.
119 S v Makwanyane para 224 (my emphasis). The inseparable link between ubuntu and social justice can also be identified in Justice Madala's description of ubuntu in S v Makwanyane para 237.
120 Also see Bhe v Magistrate, Khayelitsha (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole; South African Human Rights Commission v President of the Republic of South Africa 2005 1 SA 580 (CC) para 163 referring to S v Makwanyane para 224 as quoted in n 119 above.
121 Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC) (hereafter Port Elizabeth Municipality v Various Occupiers).
122 Port Elizabeth Municipality v Various Occupiers para 37.
123 Although these comments were made in connection with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 ("PIE") only, it can be argued that they reflect the greater ideals of transformative constitutionalism in the private sphere.
124 Louw 2013 PELJ 69.
125 Louw 2013 PELJ 77 quoting Woolman 2008 SALJ 23. He further refers to Naudé's view that "'Fairness' entails not only fairness between the parties, but also doing justice in the eyes of the community as a whole. This requires the advancement of desirable goals of collective social welfare" (Louw 2013 PELJ 77-78 quoting Naudé 2003 SALJ 827-828).
126 Barkhuizen v Napier 2007 5 SA 323 (CC) (hereafter Barkhuizen v Napier) para 51 as discussed in Du Plessis 2019 PELJ 4.
127 Barkhuizen v Napier para 56.
128 Barkhuizen v Napier para 57.
129 Barkhuizen v Napier para 59 where the Court refers to the "objective terms" of the contract. Also see Hawthorne 2010 De Jure 398; Botha 2009 Stell LR 212.
130 Barkhuizen v Napier para 59.
131 Wallis 2016 SALJ 552-553; Hawthorne 2010 De Jure 398.
132 Bhana and Broeders 2014 THRHR 175; Cornell and Muvangua "Introduction" 24; Hawthorne 2010 De Jure 400.
133 Barkhuizen v Napier para 56.
134 Barkhuizen v Napier para 59. Also see Wallis 2016 SALJ 552-553; Bhana and Meerkotter 2015 SALJ 504; Bhana 2014 SAPL 509.
135 See again the sources listed in n 132 above. See further Bennett, Munro and Jacobs Ubuntu 69, where the authors argue that ubuntu was used by the minority court in Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 1 SA 256 (CC) to promote substantive equality in the law of contract.
136 Botha v Rich para 28.
137 Botha v Rich para 40.