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The Impact of the Constitution on th...

Sprighton, Kristen,

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The Impact of the Constitution on the Law of Contract in South Africa /

Record Type:	Electronic resources : Monograph/item
Title/Author:	The Impact of the Constitution on the Law of Contract in South Africa // Kristen Sprighton.
Author:	Sprighton, Kristen,
Description:	1 electronic resource (49 pages)
Notes:	Source: Masters Abstracts International, Volume: 85-06.
Contained By:	Masters Abstracts International85-06.
Subject:	Constitutional law. -
Online resource:	https://pqdd.sinica.edu.tw/twdaoapp/servlet/advanced?query=30744013
ISBN:	9798380965767

The Impact of the Constitution on the Law of Contract in South Africa /
Sprighton, Kristen,

The Impact of the Constitution on the Law of Contract in South Africa /Kristen Sprighton. - 1 electronic resource (49 pages)

Source: Masters Abstracts International, Volume: 85-06.

South Africa entered into a new era with the advent of the new constitutional dispensation, first by the Interim Constitution in 1994 and thereafter by the Constitution in 1996 , which heralded a new era of constitutionalism and a paradigmatic shift from parliamentary sovereignty to constitutional supremacy. For the first time, a justiciable Bill of Rights was entrenched in the Constitution and has become 'the frame of reference within which everything must function and against which all actions must be tested.' The adoption of 1996 Constitution and the incorporation of a justiciable Bill of Rights into our legal system has provided a new South African jurisprudence which has been described by Klare as being post-liberal and transformative in nature.The Bill of Rights in Chapter 2 of the 1996 Constitution is horizontally applicable.What this means is that the domain of the Bill of Rights extends beyond the traditional constitutional supervision of public power, it also seeks to deal with private power as exercised between private individuals and sanctioned by the long-established common law. Traditionally the relationship between private persons was not governed by public law. However, the transformative Constitution of South Africa included 'private spheres' to be regulated by constitutional law and subjected to consistency with human rights standards and values of the Constitution. What this means for the common law of contract is that accordingly, if the substantively progressive and transformative vision of the Constitution is to become a reality in South Africa, then contract law must conform and if necessary be aligned with our Constitutional goals. This is essential in moving forward as the common law of contract is not to be trapped within the limitations of the past and must thus, seek renewed validation both in terms of the constitutional values of freedom, dignity and equality aswell as any applicable fundamental rights as set out in the Bill of rights.This begs the question as to the extent to which the horizontal application of the Bill of Rights impacts and/or permeates the current common law system of contract law in South Africa. This dissertation aims to resolve and analyse this question in chapters to follow. This question of horizontal application was finally confirmed by the 1996 Constitution. In reaction to the application debate on the matter to what extent the Bill of Rights applied to private matters, the Constitutional assembly when drafting the 1996 Constitution, specifically noted that if we were to maintain the position confirmed in the De Klerk case, we would not achieve the social engineering that we seeking to achieve and addressing the injustices/imbalances of the past if that was to be the case and that is why the Constitution specifically drafted to provide for horizontal application. Therefore, as a result of Du Plessis v De Klerk limited the application of the Bill to state action, section 8(2) was specifically included in the 1996 Constitution which provides:A provision of the Bill of Rights binds a natural or juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.Section 8(2) sanctions for indirect horizontality to this extent that the Constitutional Assembly opted for the approach as laid out in the Motala case whereby, the court recognised that certain rights can only have vertical application, such as the right to citizenship, while other rights may have direct or indirect horizontal application such as the right to fair labour practices.

English

ISBN: 9798380965767Subjects--Topical Terms:

572337
Constitutional law.

The Impact of the Constitution on the Law of Contract in South Africa /
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