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?

This article examines the current approach of the South African courts to the role of good faith or bona fides in contracts, as well as the courts’ stated reasons for this approach. The article specifically examines how arguments based on good faith have fared in the Constitutional Court to date, and the prospects for law reform to emanate from that court in the near future. The author suggests an understanding of good faith which he believes is in line with the Constitution of the Republic of South Africa, 1996 and argues that in terms of such an understanding of a robust good faith doctrine the legal fraternity or the courts can avoid some of the dangers that the judges of the Supreme Court of Appeal have warned about in this context in recent years. The author shares some concluding thoughts on the pressing need for law reform with respect to the role and presence of good faith in contracts.


Introduction
One of the most vexing questions in recent years in South African private law has been the proper role and meaning of good faith (or bona fides) in contracting, 4 and  Andre M Louw. LLD (Stellenbosch). School of Law, University of KwaZulu-Natal, Durban. Email: louw@ukzn.ac.za. This piece is dedicated to the memory of the late Honourable Mr Justice PJJ Olivier of the Supreme Court of Appeal, whose progressive and potentially ground-breaking minority judgment in Eerste Nasionale Bank van SA v Saayman 1997 4 SA 302 (SCA) was subsequently so reviled by his colleagues on the court. My colleagues have been more kind, and I wish to express my heartfelt thanks to Rob Sharrock and Lienne Steyn, who read an advanced draft of this piece and provided me with much-needed advice on how to avoid making a fool of myself.  16 have now appeared to nudge that door even wider, and I think we are starting to feel a draught that might promise to blow away the cobwebs of many years of judicial conservatism on the issue of substantive equity in contract law. I am not the only person who believes that the CC may actually presently be champing at the bit to rewrite our law on good faith in contracts, and there is a likelihood that events may overtake me and that an appropriate case to facilitate such development of the law may reach the CC even before this piece is published. 17 I do believe that the SCA's conservatism meansand this notwithstanding the paucity of contract law cases which reach the CC -that the chances are that law reform on this issue is currently more likely to emanate from Braamfontein than from Bloemfontein. 18 Undoubtedly, the greatest catalyst for the current debate about the role of good faith has been the entry -albeit, at times, kicking and screaming -of our common law of contract into the new constitutional dispensation. While some have been 15 See Barnard-Naudé 2008 Constitutional Court Review 187, and the discussion in s 3 in the text below. 16 Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 1 SA 256 (CC). 17 There are indications that recent litigation involving franchise agreements between Woolworths (Pty) Ltd and a KwaZulu-Natal franchisee, Dula Investments (Pty) Ltd, in which arguments were brought (unsuccessfully) before both the Western Cape High Court and the KwaZulu-Natal High Court (Durban) regarding the application of the principle of ubuntu as incorporating and requiring a robust notion of good faith in respect of extension clauses, may be on its way to the Supreme Court of Appeal (and, possibly, from there to the Constitutional Court). Traverso DJP provided the respondent leave to appeal to the Supreme Court of Appeal against her judgment in Woolworths (Pty) Ltd v Dula Investments (Pty) Ltd 2012 ZAWCHC 183, which appeal is apparently pending at the time of writing. Whether this is an appropriate case, on the facts, for consideration of these issues regarding good faith and ubuntu, however, is questionable. 18 It currently appears unlikely that the Supreme Court of Appeal would seriously reconsider its established views on the role of good faith (as described in s 2 in the text below) at this point in time, especially if one considers the views expressed by Brand JA in Potgieter v Potgieter 2011 ZASCA 181 para 34 (the learned judge appears to have lobbed the ball squarely in the court of the eleven judges sitting on Constitution Hill, although the appropriateness of this judicial reluctance on the part of the SCA is questionable -see De Vos 2011 constitutionallyspeaking.co.za. 47 / 614 heard to lament the "constitutional colonization of the common law" 19 -a misplaced but hardly original response by lawyers so well schooled (or mired?) in black letter, doctrinal law 20 -it is hard to imagine a more apt breeding ground for the development of a robust concept of good faith in contracting than the foundational values of the Bill of Rights and the transformative and developmental ethos of our Constitution. 21 The drafters of the Constitution chose not to entrench freedom of contract as a fundamental right in the Bill of Rights, even though its importance as a constitutional value appears to have been recognised on occasion. 22 But if one considers the importance of the law of contract (and contracts as private law mechanism for the ordering of our social and economic relations) for the furtherance of a number of the other, entrenched rights in the Bill of Rights, 23 it is truly surprising that this common law system appears, at least at first glance, to have been so significantly isolated from the constitutional project by the higher courts. 24 According to Everfresh, possibly the most important constitutional value which provides a basis for such development is the value system of ubuntu; and the Constitution has brought with it increased calls for greater substantive equity in contracts more generally. In the light of the fact that recent decades have seen the concept of "fairness" assume central importance in respect of certain specific types of contracts (compare, for example, the prominent role attached through the means of labour legislation to substantive fairness in respect of various aspects of the employment contract; compare also the role of fairness as encapsulated in consumer contracts via the more recent Consumer Protection Act), 25  approach to equity in (consumer) contracts: "This new legislation introduces a number of value laden concepts such as whether an agreement is 'excessively one sided in favour of any person other than the consumer' or 'the terms are so adverse to the consumers to be inequitable'. Thus the recent judicial record, in which the substance of the contractual outcome circumvents the implications of the Constitution and thus restricts the development of the general principles of concept such as good faith -which deals so fundamentally with issues of fairness and fair dealing between individuals 26 -should remain so elusive or under-valued in the general common law of contract. 27 And, in the light of the key role of our constitutional values, it is strange that good faith, specifically, has not served to greedily soak up the spirit, purport and objects of the Bill of Rights. After all, it has (elsewhere) been observed that "the doctrine of good faith is the legal equivalent of a chameleon -it takes on the characteristics of its environment". 28 This doctrine has, to date, failed to do so in our new democratic state. Accordingly, the time remains ripe for the courts to finally settle the question of the proper role and importance of good faith in our law of contract, and, as mentioned, I believe that we are poised to see such development sooner rather than later. Ironically, however, I will suggest that we might find some food for thought (and even encouragement) in this regard in a most unlikely place -a recent judgment in the English law of contract, 29 a jurisdiction that has never been a poster child for the recognition of a robust role for good faith in contracting. 30 This piece seeks to add yet another plaintive voice to the call for such judicial development of a greater role for good faith, and to suggest why those opposed to the prospect of the often-raised threat of potential legal uncertainty -which is so frequently alleged to be an occupational hazard for those who engage in the the law of contract, would, to a large degree, work to subvert the very purpose of this legislation." 26 As Bhana and Pieterse observe, good faith is reconciled with the value of pacta sunt servanda, and it is asserted that the presence of consensus, coupled with the value of good faith, "renders our law of contract inherently equitable -the concept of good faith is said to have infused the law of contract with an equitable spirit". The authors observe that this interpretation of good faith "thus obviates engagement with the equity and fairness of a contract and so defends the lack of a substantive equitable defence in South African contract law". Bhana and Pieterse 2005 SALJ 867-868 (and 868 fn 12). 27 Bhana and Pieterse 2005 SALJ 889 believe that good faith is "arguably one of the most viable avenues through which to align the common law of contract with the values underlying the Constitution". the past in South African courts, it is this: imprecise and nebulous statements about the role of good faith, fairness and equity, which would permit idiosyncratic decision-making on the basis of what a particular judge regards as fair and equitable, are dangerous. They lead to uncertainty and a dramatic increase in often pointless litigation and unnecessary appeals. Palm-tree justice cannot serve as a substitute for the application of established principles of contract law." 32 The rule was famously summarised in 1933 by the New York Court of Appeals as imposing an implied covenant that "neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract, which means that in every contract there exists an implied covenant of good faith and fair dealing" -Kirke La Shelle Company v The Paul Armstrong Company 263 NY 79; 188 NE 163; 1933 NY 167 (as recently confirmed again in ABN AMRO Bank, NV v MBIA Inc 2011NY Slip Op 5542, 11-12 (2011). See also, for example, the following as contained in the California Civil Jury Instructions (A 325: Breach of Covenant of Good Faith and Fair Dealing): "In every contract or agreement there is an implied promise of good faith and fair dealing. This means that each party will not do anything to unfairly interfere with the right of any other party to receive the benefits of the contract; however, the implied promise of good faith and fair dealing cannot create obligations that are inconsistent with the terms of the contract." 33 Lewis succinctly explains the conventional understanding of certainty in the law of contract: "The principle of contractual certainty holds that the very essence of a contract is that it provides certainty as to the relationship between the contracting parties and thus allows each party to plan its future conduct safely. If the possibility existed that certain contractual terms would at some stage be found to be non-binding (because they are unfair) this certainty would vanish.
Attached to this argument of principle is the contingent claim that reform would produce a flood of litigation and that courts would be saddled with hundreds of 'hard luck' cases." Lewis 2003 SALJ 344. potentially catastrophic legal uncertainty which may flow from subjective judicial decision-making based on imprecise notions and "abstract values", such as fairness and reasonableness. I will argue that the SCA's reservations regarding this aspect of good faith may have been overstated to date, and that we can fruitfully -and safely -negotiate a greater role for this principle without risking an end to contract law and our system of commerce. Probably rather paradoxically, I would suggest that those sometimes-maligned, "vague and woolly" constitutional values provide us with a way to circumvent the claims of potential uncertainty on the basis of what you and I -in our constitutional dispensation 34 -believe to be the 'done thing' in concluding and enforcing contracts.
In the following section I will briefly examine the current approach of our courts to the role of good faith in contracts, as well as the courts' stated reasons for this approach. This overview will be brief and I will just skim the surface, seeing that many others have written (in much more depth) about the existing legal position. 35 In section 3, I will then briefly examine how arguments based on good faith have fared in the CC to date, and the prospects for law reform to emanate from that court in the near future. I will then, in section 4, suggest an understanding of good faith which I believe is in line with the Constitution, and I will argue that in terms of such an understanding of a robust good faith doctrine we can avoid some of the dangers that the judges of the SCA have warned us about in this context in recent years.
Finally, in section 5, I will include some concluding thoughts on the pressing need for law reform in this regard. 34 Under a constitution that -in the words of Barnard-Naudé -"aspires to the post-liberal ideal of civic friendship precisely because of its foundational injunction to respect the dignity of all others"; see Barnard-Naudé 2008 Constitutional Court Review 202. 35 See, for example, Bhana and Pieterse 2005 SALJ.

2
The current role and understanding of good faith in contract law, and why it is so problematic One of the stalwarts of the Supreme Court of Appeal bench in the past decade or so has provided a succinct definition of good faith as it is apparently understood by our courts (or has been understood to date): 36 [I]n South African legal parlance, the concept of bona fides or good faith has acquired a meaning wider than mere honesty or the absence of subjective bad faith. According to this extended meaning, it has an objective content which includes other abstract values such as justice, reasonableness, fairness and equity.
Ngcobo J, in the Constitutional Court's judgment in Barkhuizen, confirmed that good faith encompasses the concepts of justice, reasonableness and fairness. 37 And, of course, therein lies the rub: it is essentially the constitutive components of such abstract values -"justice", "fairness", "reasonableness" and "equity" -which have raised the hackles of appellate judges and have so bedevilled the courts' recognition of a robust duty of good faith and the recognition of a more fundamental and overarching role for good faith in the enforcement of contracts and contract terms.
The SCA's current understanding of the proper role for good faith to play in contract law is well summarised in the words of Hutchison's "cautious statement" 38 (and is worth quoting again here, especially seeing that the court in Brisley relied so fully on the following passage as reflecting the correct position in our law): 39 What emerges quite clearly from recent academic writing and from some of the leading cases, is that good faith may be regarded as an ethical value or controlling principle based on community standards of decency and fairness that underlies and informs the substantive law of contract. It finds expression in various technical rules and doctrines, defines their form, content and field of application and provides them with a moral and theoretical foundation. Good faith thus has a creative, a controlling and a legitimating or explanatory function. The learned judge explained it as follows: "The general view among commentators appears to be that in English contract law there is no legal principle of good faith of general application ... Three main reasons have been given for what [has been called] the 'traditional English hostility' towards a doctrine of good faith ... The first is ... that the preferred method of English law is to proceed incrementally by fashioning particular solutions in response to particular problems rather than by enforcing broad overarching principles. A second reason is that English law is said to embody an ethos of individualism, whereby the parties are free to pursue their own self-interest not only in negotiating but also in performing contracts provided they do not act in breach of a term of the contract. The third main reason given is a fear that recognising a general requirement of good faith in the performance of contracts would create too much uncertainty. There is concern that the content of the obligation would be vague and subjective and that its adoption would undermine the goal of contractual certainty to which English law has always attached great weight. In refusing, however, if indeed it does refuse, to recognise any such general obligation of good faith, this jurisdiction would appear to be swimming against the tide . more prominent role for good faith in the pursuit of substantive equity in the light of the Constitution. As has been observed elsewhere, the good faith debate is an iteration of "a problem 'as old as human trade', that is, the inevitable trade-off between commercial certainty and fairness". 43 The courts' reluctance to rock the boat must be viewed in the context of the effects of judgments which attempt radical law reform, as a member of the SCA, Justice Brand, has observed: 44 [T]he system of precedent or stare decisis ... does not lend itself to radical change.
It has an inherent restraint, in that judges who take steps forward do so in the knowledge that they are not only deciding the cases before them, but that they are laying down the ground rules for deciding tomorrow's cases as well. The result is that changes by the courts are implemented incrementally -and as far as possible -within the framework of existing legal principles.
And the court has constantly had to consider, more generally, its place -and the effects of its judgments -in the greater scheme of the legal landscape in South "A common concern is the uncertainty which would result from the introduction of a standard of uncertain content with strong moral overtones, and the damage which would be done to the commercial contracting practices which have provided the bedrock of English contract law. Traditionally its approach has been founded on the perceived bases of a market economy, emphasising the right of each party to pursue its own interests, whether in the creation or the 55 / 614 Bredenkamp's case, apart from the dodgy legal arguments brought by the applicant's counsel, also provides an object lesson in the dangers of subjective decision-making, which is evident when one compares the different outcomes arrived at by (the late) Jajbhay J and Lamont J, respectively, in the courts a quo (something that Harms JA specifically recognised when the matter came before the SCA, and which inspired him to remark on the fact that fairness is a 'slippery concept'). 53 Brand JA, in Potgieter, linked the above-quoted warnings about the potential for legal uncertainty through subjective judicial decision-making to the principle of legality, which he regards (with reference to the views expressed by Harms JA in Bredenkamp) 54 "as part of the rule of law, which in turn constitutes a founding value in terms of s 1 of our Constitution". 55 In this way, a prime rationale for the SCA's much-criticised 'conservatism' regarding its approach to measures aimed at promoting greater substantive justice in contract law (such as good faith) is ostensibly given a constitutional imprimatur. And this creates real tensions between the transformative aspirations of the Constitution 56 (as, potentially, to be given substance through a device such as good faith) and more pragmatic aspects of the legal and commercial system (which tend to lean towards maintenance of the status quo), 57 and which may not be easy to resolve. The "classical liberal theory of contract" 58 still has many adherents in our modern day and age, and one might wonder if our appellate judges are to be counted amongst the fold of these 'anti- For some, it is an article of faith that contract law has little or nothing to do with morality or fairness or even justice, to the extent that any of those terms means anything other than enforcing the agreements which one of the parties has proposed and the other party has in form agreed to. This faith may stem from adherence to a particular intellectual scheme of economic analysis, from a libertarian cast of mind, or simply from a sort of economic Darwinism: parties with economic power have it because they earned it, and by the same token are entitled to use it to get more.
In 2013, however, and in South Africa, many of those who currently enjoy economic power probably obtained it in a way and by means that would not have overly order. And this conservatism is also, more fundamentally, strange when one considers the fact that it has long been recognised that all contracts in our law are bonae fidei, which involves good faith as a criterion in the interpretation of contracts 60 Davis 2011 Stell LR 852. 61 And, quite possibly, from the perspective of logic: "The truth is that there will always be an interplay between legal rules and the values that underpin them on the one hand, and the duty of individual judges (who have their own values, life experience, and acknowledged or unacknowledged beliefs) to exercise a discretion and to treat the parties before them fairly and justly. The notion that legal rules provide absolute certainty is a fiction perpetrated by judges in order to avoid responsibility for the fact that their own values and beliefs play a role in how they interpret legal rules and how they apply those rules to a certain set of facts The proposition that by our law all contracts are bonae fidei is not confined to matters that arise after consensus has been reached; it applies to the very process of reaching consensus. A party who adopts an ambivalent posture with a view to manipulating the situation to his own advantage when he can see more clearly where his best advantage lies has a state of mind that falls short of the requirements of bona fides.
One might surmise that the necessary development of the role of good faith in contract could probably be effected merely by a reconsideration of the SCA's paradoxical treatment of good faith vs. freedom of contract -which are both frequently referred to as underlying principles of our law of contract, but which have had such varied careers in this court. 68 The court's failure to recognise the central importance of good faith would appear to be at odds with the law's failure to provide an independent substantive equity defence in contract. Bhana and Pieterse observe that good faith is said to have "infused the law of contract with an equitable spirit", and that this interpretation of good faith "thus obviates engagement with the equity and fairness of a contract and so defends the lack of a substantive equitable defence in South African contract law". 69 If good faith is so under-valued, as the SCA has 63 Meskin v Anglo-American Corporation of SA Ltd 1968 4 SA 793 (W) 802A. 64 Which I will return to in the text below. 65 Lewis 2003 SALJ 331. 66 Hawthorne seems to believe this: "Reliance on our Dutch common law could possibly provide the necessary sources for developing our law to make provision for equity in the law of contract, without coming up against a wall of opposition directed at any adjudication which involves interpretation of the so-called vague concepts contained in the Bill of Rights. In this regard it is to be deplored even more that in the landmark decision in Bank of done to date, one would have expected that such an equitable defence would have been developed. It could be argued that the SCA's stance on good faith in terms of its emphasis on legal certainty may reflect a legal positivism that is "pernicious as a theory which protects entrenched interests and renders courts less than responsive to changing needs and the well-being of oppressed groups in society". 70 Hawthorne blames the current devaluation of good faith on legal positivism and judicial formalism. 71 She highlights the fact that the Constitution demands a different approach by the courts, but also points out that this has not yet occurred to date (or, at least, that had been the case when she was writing in 2006 -indications from more recent judgments may engender a slightly greater level of optimism): 72 In essence the Constitution calls for a reappraisal of traditional ideas of the judicial function and of legal interpretation. It requires judges to engage in substantive legal reasoning, to articulate the values upon which their decisions are based and to engage with the social, historical and legislative context. Judges themselves are thus made subject to the demand for justification: rather than simply relying on a pre-existing rule or precedent, they are required to engage in value-based, contextual reasoning. Consequently, the new constitutional dispensation promises to initiate new developments in the law of contract. Despite rhetorical support for good faith, fairness and reasonableness, however, the post-constitutional pattern in our case law remains a succession of victories for the free marketeers. It would appear that the heritage of positivism and formalism has effectively jeopardised development of the law of contract by means of constitutional interpretation.
A foreign visitor trained in South African constitutional law but with little knowledge of our contract law jurisprudence would probably be dumbstruck by the courts' continued and apparently wholesale resistance to at least an incremental shift from legal formalism to realism and the pursuit of greater substantive equity in contract 70 Gordon "New Developments in Legal Theory" 413, as quoted in Hawthorne 2006 Fundamina 75.

71
"[I]t may be argued that the lack of a doctrine of good faith in South African law of contract provides the perfect example of the effect that the Westminster system of government, positivism and the formalistic approach to contract law has had on this very important area of our law ... Formalism leans towards doctrinal conservatism. In consequence, formalists tend to avoid or limit innovations ... Positivism and formalism demand a nearly mechanical application of rules and doctrines. Phrases such as freedom of contract and sanctity of contract are used without critical reflection of their purpose or the social context within which they are to be applied. Consequently, formalism supports the application of clear general rules which require no judicial discretion ... Formalist judges believe that it is not their function to make contracts, but only to apply rules. The definitive question when a case comes up on appeal is not whether the trial judge obtained the correct result, but whether the correct rules were applied.  decision-making by our courts. I am not convinced that this necessarily has to be the case, as I will explain below. I am not convinced that direct recourse to good faith by the courts (in the meaning attributed to this concept by Bhana and Pieterse) is necessarily evil, and I believe that much will depend on the meaning that we attribute to good faith and the content of the more value-based or normative considerations included under the term. More will be said on this below.

The Constitutional Court and good faith in contracting
As said earlier, many observers who have been calling for a more prominent role for good faith in the pursuit of greater substantive equity in contract law had hoped that the Constitutional Court might bring a change in the conservative approach evidenced in the SCA judgments referred to above. This hope has to date not been realised, although it appears that the CC may have provided indications that it will in future, when an appropriate case presents itself, probably be willing to revisit the common law role of good faith.
The court's refusal in Crown Restaurant 76 to consider arguments regarding the redevelopment (or "exhumation") of the exceptio doli generalis (on the basis that such arguments had been brought before the court as both court of first and last instance), did not augur well for the future of good faith arguments before the CC.
Barnard-Naudé -who criticises the court's unwillingness to mero motu develop the common law in terms of section 39 (2)  In the light of these less than promising indications regarding the CC's willingness to revisit the law relating to good faith in contracts, it is probably not surprising that good faith was not raised as a prominent prong of the applicant's case before this court in Barkhuizen v Napier. Good faith was, possibly strangely, 79 relied on rather obliquely in respect of the applicant's argument that enforcement of a time limitation clause in a contract would be contrary to the implied duty of good faith where such enforcement would be unjust towards the applicant (this after the court briefly considered the application of the maxim lex non cogit ad impossibilia to time bar provisions where compliance with such provisions is impossible). Ngcobo J, writing for the majority of the court, started out rather unpromisingly by stating that "the requirement of good faith is not unknown to our common law of contract". 80 After a brief exposition of the role of good faith, however, the learned judge arrived at the following conclusion (with reference to Brisley): 81 As the law currently stands good faith is not a self-standing rule, but an underlying value that is given expression through existing rules of law. In this instance good faith is given effect to by the existing common-law rule that contractual clauses that are impossible to comply with should not be enforced. To put it differently: 'Good faith . . . has a creative, a controlling and a legitimating or explanatory function. It is not, however, the only value or principle that underlies the law of contracts.' Whether, under the Constitution, this limited role for good faith is appropriate and whether the maxim lex non cogit ad impossibilia alone is sufficient to give effect to the value of good faith are, fortunately, not questions that need be answered on the facts of this case and I refrain from doing so. faith, in fact, is part of public policy, and that this much less controversial mechanism provides a portal for the development of a much more robust notion of good faith in line with the Constitution's transformative aspirations: 82 [T]he Court [in Barkhuizen] attributes exactly the same meaning to public policy as the meanings that have been attributed to good faith. A striking example is the similarity between the definition by the Constitutional Court of public policy as 'importing the notions of fairness, justice and reasonableness' and Olivier JA's definition of good faith as realising the community's legal convictions regarding propriety, reasonableness and fairness … On my reading it seems then at least probable that the court would have been willing to consider good faith (in the context of its formulated public policy test) had reasons been advanced for noncompliance with the term. In this way the court seems to both accept and reject the category distinction that MacQueen and Cockrell make between public policy and good faith. The Court clearly views good faith as the measure that would curb the enforcement of the term if enforcement would be unfair or unjust to the applicant. Given the Court's statement regarding the role of unequal bargaining power in this leg of its public policy test, the suggestion seems to be that part of the good faith test will involve enquiring into the relative bargaining position of the parties and the way in which this impacted on the contractual arrangement. In this way it appears that the Court left the door wide open as regards good faith's potential role as part of the public policy test. Moreover, this means that the exceptio doli generalis, albeit in drag, has risen from the grave, a grave in which it was in any event never interred. Another implication of the judgment is that the Constitutional Court has confirmed that the alleged exercise of freedom of contract in violation of both the rights in and the spirit, purport and objects of the Constitution, will not be enforced on grounds of public policy … [B]y leaving the door of public policy open to good faith, the court has created the possibility that good faith may in the future again become constitutive of freedom of contract, rather than marginalised and seen as opposed to it. Again, everything here depends on the content that will be afforded to good faith. It goes without saying that it is always possible (and indeed likely) that good faith can be afforded weak content that would just further legitimise the hegemonic understanding of freedom of contract. To put it perhaps more dramatically, it is of course always an imminent danger that good faith will simply become a private and privatising device. For this reason it becomes necessary to defend a progressive and transformative version of good faith.
The promise for a future revisiting of the proper role of good faith in contract law as evident from the above observations in Barkhuizen subsequently materialised in the case of Everfresh Market Virginia v Shoprite Checkers, 83 although the CC in this matter also failed to definitively tackle the issue (and was ultimately not called upon to do so in light of the applicant's case as earlier brought before the High Court and 82 Barnard-Naudé 2008  Everfresh contends that the common law should be developed in terms of the Constitution to oblige parties who undertake to negotiate with each other to do so reasonably and in good faith. The contention of Shoprite is that a provision of this kind should not be enforceable because the concept of good faith is too vague.
The learned judge, writing the minority judgment of the court, then continued to express the following views on good faith: 87 84 Clause 3 of the lease agreement provided as follows: "Provided that the Lessee has faithfully and timeously fulfilled and performed all its obligations under and in terms of this Lease, the Lessee shall have the right to renew same for a further period of four years and eleven months commencing on 1st April 2009, such renewal to be upon the same terms and conditions as in this Lease contained save that there shall be no further right of renewal, and save that the rentals for the renewal period shall be agreed upon between the Lessor and the Lessee at the time. The said right of renewal is subject to the Lessee giving written notice to the Lessor of its intention so to renew, which notice shall reach the Lessor not less than six (6) calendar months prior to the date of termination of this Lease. In the event of no such notice being received by the Lessor, or in the event of notice being duly received but the Parties failing to reach agreement in regard to the rentals for the renewal period at least three ( Good faith is a matter of considerable importance in our contract law and the extent to which our courts enforce the good faith requirement in contract law is a matter of considerable public and constitutional importance. The question whether the spirit, purport and objects of the Constitution require courts to encourage good faith in contractual dealings and whether our Constitution insists that good faith requirements are enforceable should be determined sooner rather than later. Many people enter into contracts daily and every contract has the potential not to be performed in good faith. The issue of good faith in contract touches the lives of many ordinary people in our country.
What makes Yacoob J's observations on good faith in contracting especially important is the express positioning of good faith under the value system of ubuntu, which the judge explained as follows: 88 The values embraced by an appropriate appreciation of ubuntu are also relevant in the process of determining the spirit, purport and objects of the Constitution. The development of our economy and contract law has thus far predominantly been shaped by colonial legal tradition represented by English law, Roman law and Roman Dutch law. The common law of contract regulates the environment within which trade and commerce take place. Its development should take cognisance of the values of the vast majority of people who are now able to take part without hindrance in trade and commerce. And it may well be that the approach of the majority of people in our country place a higher value on negotiating in good faith than would otherwise have been the case. Contract law cannot confine itself to colonial legal tradition alone. It may be said that a contract of lease between two business entities with limited liability does not implicate questions of ubuntu. This is, in my view, too narrow an approach. It is evident that contractual terms to negotiate are not entered into only between companies with limited liability. They are often entered into between individuals and often between poor, vulnerable people on one hand and powerful, well-resourced companies on the other. The idea that people or entities can undertake to negotiate and then not do so because this attitude becomes convenient for some or other commercial reason, certainly implicates ubuntu.
These observations were obiter dicta, as the majority of the court ultimately held that Everfresh's arguments and calls for the common law of contract to be developed in terms of section 39 (2)  Indeed, it is highly desirable and in fact necessary to infuse the law of contract with constitutional values, including values of ubuntu, which inspire much of our constitutional compact. On a number of occasions in the past this Court has had regard to the meaning and content of the concept of ubuntu. It emphasises the communal nature of society and carries in it the ideas of humaneness, social justice and fairness, and envelopes the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity. Were a court to entertain Everfresh's argument, the underlying notion of good faith in contract law, the maxim of contractual doctrine that agreements seriously entered into should be enforced, and the value of ubuntu, which inspires much of our constitutional compact, may tilt the argument in its favour. Contracting parties certainly need to relate to each other in good faith. Where there is a contractual obligation to negotiate, it would be hardly imaginable that our constitutional values would not require that the negotiation must be done reasonably, with a view to reaching an agreement and in good faith. I however conclude that it is unnecessary to decide the merits of any of these difficult questions now.
Even though the above observations were made in the context of one specific aspect of the application of good faith in contracting, namely the duty to negotiate in good faith in the context of such a contractual undertaking to negotiate (or "agreement to agree"), 91 I would suggest that the sweeping nature of the above statements -89 "The proposition that a common law contract principle that provides meaningful parameters to render an agreement to negotiate in good faith enforceable is decidedly more consistent with section 39(2) than a regime that does not. A common law principle that renders an obligation to negotiate enforceable cannot be said to be inconsistent with the sanctity of contract and the important moral denominator of good faith. Indeed, the enforceability of a principle of this kind accords with and is an important component of the process of the development of a new constitutional contractual order. It cannot be doubted that a requirement that allows a party to a contract to ignore detailed provisions of a contract as though they had never been written is less consistent with these contractual precepts: precepts that are in harmony with the spirit, purport especially in respect of their references to ubuntu 92 -augur a potentially more comprehensive future judicial review of good faith by this court. Everfresh now stands as a clear indication that, firstly, the CC is prepared to tackle 93 the proper role of good faith in contracts (especially under the value system of ubuntu) and, secondly, that the court appears to be of the opinion that the current role of good faith as expressed so consistently by the SCA in the cases referred to earlier probably needs to be revisited in favour of a more robust role for this principle than has hitherto been recognised. The previously quoted Jaco Barnard-Naudé also appears to view Everfresh as an important barometer in respect of what we can expect from the CC in future. 94 One specific component of good faith that is especially important here is that of fairness and "simple justice" between contracting parties. Even though Harms JA, in Bredenkamp, expressly denied the existence of an overarching constitutional value of fairness, 95 I believe that the views expressed in Everfresh are in accord with an emerging approach which emphasises fairness and the pursuit of contractual justice, 92 Hawthorne sees in ubuntu a mechanism for the infusion and promotion of a culture of co- He remarked as follows regarding the implications of the Everfresh judgment: "The approach of both [the Yacoob J and Moseneke J] judgments to the law of contract is, to say the least, at odds with our existing jurisprudence on the role of good faith in the law of contract. One of the Supreme Court of Appeal's favourite mantras is that good faith plays a marginal and indirect role in our law of contract -it is not a free-floating standard to be employed by judges to adjudicate contract-law disputes. It is a pity that this case was not properly pleaded, since it had the potential of bringing more clarity to the question whether the marginal role of good faith in contract, as espoused by the Supreme Court of Appeal in a long line of cases, is constitutionally appropriate. Judging by the remarks of the Constitutional Court quoted above, the answer to this question appears to be in the negative." Barnard-Naudé 2011  Brisley v Drotsky 2002 4 SA 1 (SCA) para 24. Hawthorne find this to be a very unsatisfactory approach: "This total negation of the introduction of a new constitutional model and its effect on the totality of South African law is perhaps more disturbing than the rejection of good faith as a constructive factor in the South African law of contract." Hawthorne 2003 SAMLJ 276-277. 101 As already stated, s 39(2) of the Bill of Rights demands development of the common law in the spirit of the Constitution where this is required. This section provides an important -and some will say indispensable -mechanism to address the problems experienced by a doctrine-based field of law in the midst of an arguable social imperative for greater substantive justice. In this 68 / 614 least this would not be fair towards litigants who may end up in the SCA but be unable, for whatever reason, to take judgments of this court on appeal to the CC. It is undoubtedly illegitimate for the SCA to say that "it will only change its rigid and seemingly anti-transformative approach to our common law if it is forced to do so by those rogue judges of the Constitutional Court". 102 problem with the SCA's conservatism in developing a greater role for good faith in contracting as discussed in the text above: "Because of institutional constraints, any given body of law at any given moment of time may not have the best content it should have over the long run. For example, one of the constraints on courts is that they must attend to the interest of doctrinal stability, especially, although not exclusively, because courts act retrospectively. As a result of this constraint, the courts may for periods of time follow rules that are not the rules that would be best if the interest of doctrinal stability were put to one side. Similarly, and to the same effect, courts are not institutionally free to consider all relevant and meritorious social propositions, but instead are normally confined to those social propositions that have substantial social support." To privilege legal certainty in cases of rogue contracting would be to pursue an outcome that is at odds with our Constitution. Accordingly, the courts can no longer apply their one-size-fits-all rejection of the consideration of arguments based in those constitutional values in favour of perpetuating a system of contract that allows often gross unfairness in the dealings between individuals to be screened from legal

scrutiny. That is what Madala J meant when he reminded us in Du Plessis v De
Klerk 105 that "[i]n its effort to create a new order, our Constitution must have been intended to address these oppressive and undemocratic practices at all levels"; and that is why our Constitution expressly allows for the horizontal application of its Bill of Rights. Accordingly, the need for the development of contract law doctrines in the image of the Constitution, which would more actively and realistically pursue its objectives, would appear to be non-negotiable and uncontroversial.
In his impressive treatise calling for the development of good faith in our constitutional dispensation, Barnard-Naudé made the following observations, which I believe are an accurate reflection of the imperative (and opportunities) for law reform in the interests of greater substantive equity in contracts: 106 The enactment of the Constitution, the transformative hopes it disseminates and the view that its normative framework is explicitly post-liberal occasions an opportunity for a re-evaluation of and a challenge to the individualist (hegemonic) understanding of freedom of contract, its concomitant commitments and ... the tangled web it weaves in order to sustain the false consciousness on which its legitimacy turns ... [S]tatements about the law of contract as law subordinated under the new Constitution are explicit interpretations of the constitutional mandate as requiring a re-emphasis on the ethical element of contract in the furtherance of a post-liberal or positive freedom of contract. A freedom of contract that comes to 104 What Barnard-Naudé refers to (with reference to the work of Drucilla Cornell) as "the aspirational community of the 'ought to be'" - Barnard-Naudé 2008 Barnard-Naudé 2008 Constitutional Court Review 156-157, 205 and 208. understand that conduct cannot be characterised as free when it disrespects/violates dignity, when it pretends that contract is a relation between things and not between persons, when it does not proceed according to respect for whoever is on the other side of the negotiation ... It is only once the ( In the rest of this section I will argue, firstly, that the SCA's rejection in Brisley of the boni mores as the source for a robust application of good faith in our law of contract was premature, simplistically dismissive of the real issues, and inconsistent with the Constitution. I will then argue for an understanding of good faith as an objectively verifiable, ethical standard of conduct in contracting that is rooted in our constitutional value system, which understanding -if applied consistently by our courts on the basis of proper guidelines -would avoid the dangers of uncertainty that hitherto has been ascribed to good faith in this context.

The boni mores as the source of a robust doctrine of good faith in contract law
Mention was made earlier of the fact that the SCA, in Brisley, made short shrift of respectively. It appears that the court's strongly-worded admonition on the danger of "unacceptable chaos and uncertainty" creeping in through such legal convictions of the community as determinant of the enforceability of a contract was based on the court's predilection for the intention of the parties rather than for the application of an externally-imposed, value-based benchmark of contractual liability. The court specifically observed that in the law of contract the parties voluntarily undertake their legal obligations and deem themselves to be bound to the expressions of their intentions, and that the parties determine the nature and scope of their legal relationship. But this is surely not the whole story. The parties to a contract cannot determine the nature and scope of their legal relationship to be something that is not countenanced by the law. The court appeared to overstate the role of the parties' intention in determining the nature and scope of their relationship; by observing that in the law of delict the parties have no say in this regard, the court seemed to place an undue weight on the parties' intentions in contract law because they have some say in this process. An interpretation that accords the parties to a contract carte blanche to determine their obligations without regard for the legal convictions of the community would be anathema to the rule of law and to the continued legitimacy of our law of contract.
And the genuine nature of the intention of the parties to a contract (and true volition), nowadays, is something that is in itself often fraught with uncertainty, and with the potential for significant inequity. Sachs J, in his eloquent and well-reasoned minority judgment in Barkhuizen, convincingly exposed the many problematic That is no longer the case. Since the advent of our constitutional democracy, public policy is now deeply rooted in our Constitution and the values that underlie it. Indeed, the founding provisions of our Constitution make it plain: our constitutional democracy is founded on, among other values, the values of human dignity, the achievement of equality and the advancement of human rights and freedoms, and the rule of law. And the Bill of Rights, as the Constitution proclaims, 'is a cornerstone' of that democracy; 'it enshrines the rights of all people in our country and affirms the democratic [founding] values of human dignity, equality and freedom'. What public policy is and whether a term in a contract is contrary to public policy must now be determined by reference to the values that underlie our constitutional democracy as given expression by the provisions of the Bill of Rights. Thus a term in a contract that is inimical to the values enshrined in our Constitution is contrary to public policy and is, therefore, unenforceable." 112 Barnard-Naudé 2008  Hutchison also observed that Olivier J's approach in his minority opinion in Saayman encompassed a similar view on the link between good faith and public policy: 113 There is a close link ... between the concepts of good faith, public policy and the public interest in contracting. This is because the function of good faith has always been to give expression in the law of contract to the community's sense of what is fair, just and reasonable. The principle of good faith is thus an aspect of the wider notion of public policy, and the reason why the courts invoke and apply the principle is because the public interest so demands. Good faith accordingly has a dynamic role to play in ensuring that the law remains sensitive to and in tune with the views of the community.
I will not engage with Barnard-Naudé's argument that good faith, in the view of the majority in Barkhuizen, is part and parcel of public policy, although I believe there is merit in the suggestion and that it is a less revolutionary concept than it might appear to be at first glance. 114 At the very least I would agree, however, that The concept (of ubuntu) is of some relevance to the values we need to uphold. It is a culture that 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 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 coresponsibility and the mutual enjoyment of rights by all.
It is to my mind inconceivable that our community would not be deemed to aspire to the doctrine of unconscionability in terms of which a contract that was so unfair as to be unconscionable (i.e. exploitative of a contracting party) would be contrary to public policy and therefore invalid. This doctrine provided a potential avenue for a substantive equitable defence in its assertion that, while public policy generally occupies itself with the principle of sanctity of contract, it also needs to take proper account of the need for justice. [Hale] highlights the critical impact of background legal rules on the distribution of income and wealth, which in turn is continuously fashioned by legal rules. A party who enjoys the protection afforded by a property right can exert considerable pressure in order to induce another party to enter into a bargain. In addition, the law endows the property owner with power 118 I will examine this concept in more detail in s 4.2 in the text below. to have recourse to governmental authority, if necessary, to enforce his or her property rights.
Our system of contract law, in effect, places in the hands of the economically powerful in society a potential weapon of mass destruction. It is inconceivable that the community's sense of what is acceptable -which legitimates the content of the legal machinery of the state which is brought to bear on the dealings between contracting parties and determines which party will receive the assistance of the De Vos observes: "The problem with this line of reasoning is of course that it is based on the untenable fiction that legal rules do not have to be interpreted at all, that such rule just have an obvious and single meaning that suggests itself to a judge who never has to revert to value judgements when he or she interprets a legal rule. This view also loses sight of the blindingly obvious fact that when these legal rules are applied by judges, value judgments must inevitably be made. Different judges will not always interpret the same legal rule in the same way and neither will they apply that rule to the same set of facts in exactly the same way. As any practicing lawyer (or anyone who has read some writing by legal realists) will tell you, this kind of reasoning is not easy to square with reality. After all, often the first thing a lawyer asks when he or she has to appear in court, is who the judge is before whom he or she is going to appear. And why would anyone have been upset about the values and beliefs of our new Chief Justice if they did not think that the value of a judge played a role in adjudication -even when a judge is called upon to apply so called rigid legal rules? The notion that legal rules provide almost absolute legal certainty is an obvious fiction that cannot bear scrutiny. If rules provided such certainty, why would anyone ever approach a court and ask a court to interpret or apply a legal rule in any dispute? All parties in a legal dispute would ask their lawyers to tell them what the outcome of their case would be and the party who is told that she will lose the case will then be persuaded not to waste her money on legal bills by pursuing the case in court. However, this does not happen in real life because real human beings apply the law." De Vos 2011 www.constitutionallyspeaking.co.za.

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values that underlie our constitutional democracy". 130 The court said this in the context of its discussion of the role of public policy but, as said above, the author argues, convincingly, that the court appeared to equate public policy and good faith (at least in terms of the content it ascribed to public policy). I am adding my voice here to the calls for the role of good faith in contracts to be reconsidered in line with the constitutional values. In this process it should be borne in mind that the legal convictions of the community play an integral role in such a process -the SCA has said so: 131 Courts have not only the right but also the duty to develop the common law, taking into account the interests of justice and at the same time to promote the spirit, purport and objects of the Bill of Rights. In this regard courts have regard to the prevailing mores and public policy considerations.
In the current context, the legal convictions of the community are doubly important as also being the source of the ethical standard of good faith and fair dealing. And one could, I would suggest, even meet the arguments of those opponents of a robust good faith doctrine derived from the boni mores who may believe that such a creature would lack the possibility of empirical proof: 132 Admittedly, assertions that '[p]eople, including commercial people, expect a degree of common sense, fairness and justice in the law and in the rules that govern commercial behaviour' cannot be proven in any scientific sense. However, it is difficult to see how it might convincingly be argued otherwise: for people to expect nonsense, unfairness and injustice in any branch of the law is surely to stultify its purpose. This is especially so in contract law, which is concerned with agreements, understandings and other such meetings of minds. The superstructure of contract law is built upon foundational notions of accord, cooperation and common purpose, and it is suggested that those foundations are likely to be strengthened, not weakened, by adopting a doctrine of good faith.
Liew gives a further reason why fears of uncertainty inherent in a doctrine which would require case-by-case analysis of compliance with a duty of good faith might 130 Barnard-Naudé 2008  [A] parallel may perhaps be drawn to the tort of negligence, where the existence of a duty of care is commonly regarded as a question of law that sets a precedent for analogous cases, whereas the question of whether that duty has been breached (in other words the content of the duty) is generally seen as a question of fact that depends crucially on the circumstances of each case.
In this light there may be something to be said for the approach mooted by Alkema It is in fact not uncommon in law for the policy objective of legal certainty to be relaxed in circumstances where competing social considerations and the development of the common law warrant it. In the law of delict, for example, the test for wrongfulness, which is based on the legal convictions of the community, wholeheartedly embraces competing social and economic considerations (including those reflected in the Constitution), notwithstanding the inevitable reduction in legal certainty. The law of contract, as a branch of the common law, is equally meant to embrace normative and constitutional values so as to adapt to the changing needs of the community. It is therefore difficult to discern a cogent explanation for contract law's apparent need for more certainty and its attendant 'elevated' status.
Of course, as I have argued above, I would suggest that the explanation for this also the claim that the formalistic and clinical conclusions of the Bank of Lisbon decision do not mean that the Roman-Dutch law has lost the very feature which enabled it to survive in the modern world, its openness to considerations of policy. It is, to paraphrase Zimmermann, something closely related to the ethical foundations of the ius commune; a realisation that the concern for substantive justice is not adequately reflected in the sometimes deficient will theories which have replaced equitable doctrines." [References omitted] Barnard 2005 SAJHR 289-290. 138 It is worth noting that, in the process of the SA Law Reform Commission's Project 47 on the proposal of general unfair contract terms legislation, Professors Van der Merwe and Van Huyssteen suggested a role for an objective standard of good faith which would be in line with the German position: "Professors SWJ van der Merwe and LF van Huyssteen note the proposed replacement of 'good faith' with 'unconscionability' as the basic standard for evaluating the 'fairness' of contractual terms and point out that they experience a number of difficulties with the substitution proposed in the discussion paper. They state that the concept of good faith entails, by definition, an objective standard capable of application to all phases of contract and this is said on the basis that good faith is not without more the antithesis of 'bad faith', which is generally understood in a more subjective fashion and that the absence of good faith is not automatically equal to bad faith. They consider that as such, good faith holds the potential of being developed into a general standard for equity in contract such as the Generalklausel of the German BGB, capable of interpretation and application by the courts. They are of the view that one should consider in this respect the existing body of jurisprudence in South Africa, including the present development regarding 'unfair contract terms' and illegality. They remark that the concept of 'unreasonableness' may certainly also be given an objective content, however, used in conjunction with 'unconscionable' and 'oppressive', it is difficult to interpret 'unreasonable' as a completely objective standard. The Professors consider that it is not clear to what extent a more subjective standard may create difficulty for the courts when asked to develop the applicable norm and especially when required to relate it to existing norms which apply value judgments to the various phases of contract, such as the grounds for rescission and illegality." SALRC 1998 www.justice.gov.za. 139 Writing in "Good faith", in Hartkamp Towards a European Civil Code.

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"Subjective good faith is concerned with knowledge of facts or events, or absence of knowledge, and affects mainly property law and possession. In this sense good faith is perfectly familiar in It is objective good faith, however, which is chiefly relevant to contract law.
Objective good faith is about external, or community, norms and standards imposed upon contracting parties. Over time these norms and standards have been distilled into particular rules ... But the content of good faith is not fixed or static, and the existence of the general principle in the Codes enables the Continental judge to innovate and develop the law in response to circumstances without infringing upon the territory of the legislator.
It is, however, in that most unlikely place -the English law of contract -where I believe we may find guidance on the way forward for recognition of an objective test for good faith. In the recent judgment of Yam Seng PTE Ltd v International Trade Corporation Ltd, 142 Leggatt J, in the Queen's Bench, commented as follows on the content of good faith, and it is submitted that these comments may hold the key to our own understanding of the concept and why it may not be as slippery and potentially risky a ground to promote greater substantive equity in contract law as might be commonly believed: 143 Although its requirements are sensitive to context, the test of good faith is objective in the sense that it depends not on either party's perception of whether particular conduct is improper but on whether in the particular context the conduct would be regarded as commercially unacceptable by reasonable and honest people ... Understood in the way I have described, there is in my view nothing novel or foreign to English law in recognising an implied duty of good faith in the performance of contracts ... I see no objection, and some advantage, in describing the duty as one of good faith 'and fair dealing'. I see no objection, as the duty does not involve the court in imposing its view of what is substantively fair on the parties. What constitutes fair dealing is defined by the contract and by those standards of conduct to which, objectively, the parties must reasonably have assumed compliance without the need to state them. The advantage of including reference to fair dealing is that it draws attention to the fact that the standard is objective and distinguishes the relevant concept of good faith from other senses in which the expression 'good faith' is used. We think that the concept of good faith is reducible to a core meaning… At its core, the concept of good faith encompasses the threshold subjective requirement of acting honestly, as well as the objective requirement of observing accepted commercial standards of fair dealing in the performance of the identified obligations. This encompasses a duty to act fairly, having regard to the legitimate interests of the other party.
Hawthorne also iterates the objective standard of fair dealing that is inherent in the concept of good faith, with reference to the experience in civilian jurisdictions: 146 Good faith has both a subjective and an objective sense. The subjective sense requires honesty in fact, while the objective sense requires compliance with standards of fair dealing ... It is without question true that the result of subjective good faith would be legal uncertainty, but it is submitted that good faith in the law of contract has an objective nature. Most countries which have a civil code refer, in their law of contract, to good faith and rely on this norm ... It would be absurd to contend that the law of contract in these jurisdictions differs from judge to judge, or from party to party. Da Silva Filho 2006 Penn St Int'l L Rev 431 observes the following: "The duty of good faith refers not to the abstract and fixed moment of formal contract formation in which the parties are judged as contracting agents, but rather to the unfolding time that leads to and follows contract formation as experienced in the daily lives of the parties ... The re-personalization of the law looks to recover the basis of the reciprocity and trust that underlies contract relations. In principle, the contractual promise is a giving of one's word, and there is a moral basis for enforcing the promise because the other party is entitled to count on another's promise under the principle of fidelity. When the word of the promise receives the legal provision for enforcing obedience it becomes a full contract. At this moment the expectation that the promise generates In sporting lingo, our courts should not assist parties in cases of 'unforced errors'.
Such a general power to strike down contracts in order to assist parties who are the authors of their own woes would truly violate the sanctity of contracts, as well as pose the very real risk of subjective judicial notions of fairness implicating legal certainty. Also, it might contribute to moral hazard and the risks of cultivating a society of careless contractants secure in the expectation of a judicial get-out-of-jail card. What I am proposing, however, is that, apart from the outcomes of the bargain, a party should be entitled to challenge conduct by the other party which offends against an ethical standard determined by the legal convictions of the community. Our law already provides assistance to parties in cases of improper conduct in the formation of contracts (consider the remedies relating to misrepresentation, duress and undue influence). Why should a party be without for the other is transformed into a right, a claim enforceable by law. It is precisely here that the focus on the subjective right tends to obscure the moral roots grounded in solidarity from which the contract springs. The legal system must refuse to close down in this manner, and must embrace the contract relation as one of autonomous solidarity." [Emphasis in the original] 148 Compare the often-quoted dictum of Innes CJ in Burger v Central South African Railways 1903 TS 571 at 57, where Innes CJ stated that "our law does not recognise the right of a court to release a contracting party from the consequence of an agreement duly entered into by him merely because that agreement appears unreasonable". recourse if such conduct presents only after the conclusion of the contract (for example, in the enforcement of such a contract)? It would be illegitimate for our law to allow pacta sunt servanda and outdated notions of freedom of contract to be used as a vehicle to facilitate the abuse of power by unscrupulous persons; this was recognised many years ago by Jean-Baptiste Henri Lacordaire, who declared that "entre le fort et le faible c'est la liberté qui opprime (between the weak and the strong it is freedom that oppresses [and the law that sets free])". 150 This is, clearly, no novel proposition, although it is one that is currently undervalued by the SCA's approach to the role of good faith. In a situation such as, for example, Standard Bank of SA v Dlamini 2013 1 SA 219 (KZD) para 76, where Pillay J found a bank's conduct to be unlawful for the following reasons: "Cumulatively considering the unexplained tactics the Bank employed, this action is heavy handed intimidation in response to Mr Dlamini seeking to enforce his right to rescind the agreement and claim a refund. The Bank's conduct in initiating and pursuing this action is unlawful for the further reason that it is irrational. The unlawfulness on all the grounds established above is a breach of the right to equality in s 9(1) of the Constitution. The Bank conducted this transaction oblivious of the purposes of the [National Credit Act]. Notwithstanding the manifest inequality in its relationship with its bargaining counterpart it sought to snatch an advantage." See further discussion of this case in the text below.

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In A 205, which provides as follows: "Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement". 154 Walsh 2001 www.acrel.org. 155 Or, as it has been put: "[S]tatements about the law of contract as law subordinated under the new Constitution are explicit interpretations of the constitutional mandate as requiring a reemphasis on the ethical element of contract in the furtherance of a post-liberal or positive freedom of contract. A freedom of contract that comes to understand that conduct cannot be characterised as free when it disrespects/violates dignity, when it pretends that contract is a relation between things and not between persons, when it does not proceed according to respect for whoever is on the other side of the negotiation ... At the heart of contract lies the idea that I have an interest in something of yours and that you have an interest in something of mine. The hegemonic capitalist over-emphasis on the things and the utter neglect of the persons who have these things, has provided an extremely distorted version of what the word "interest" in the above formulation originally entails." Barnard-Naudé 2008 Constitutional Court Review 205, 207. and thus against the public interest). 156 In the light of the SCA's near complete devaluation of good faith to date, I would be willing to settle at least for this, although I believe we can (and should) do better. But good faith should not be sidelined to the extent that Davis argues has been done by the courts in respect of public policy in the constitutional context: "The invocation of public policy thus becomes no more than a basis by which to employ a ritual incantation of the existence of the Constitution before moving on to deal with the "real" law of contract." 157 So, in order to provide a less controversial meaning for the determination of the content and parameters of such an ethical duty -and to attempt to avoid the temptation for judges to reject outright such an application of good faith -I will very briefly consider possible guidelines to facilitate the courts' application of such a standard. And here I believe we may find some food for thought in the relevant provisions of the Consumer Protection Act, in the suggestions by the SA Law Reform Commission in its earlier proposals for general unfair contract terms legislation, 158 and in the courts' jurisprudence to date. Before I engage in this exercise, however, I would suggest that we should not underestimate the quality of our judicial officers. 159 I believe that, even in the absence of exhaustive guidelines to the courts 156 And a yardstick to determine when the line has been crossed might be whether or not the relevant conduct in breach of good faith violates the other party's constitutional values, not unlike the finding in a case of undue influence (which was probably more properly a case of economic duress) in P Gerolomou Constructions (Pty) Limited v Van Wyk 2010 ZAGPPHC 258 para 24. 157 Davis 2011 Stell LR 847. 158 One sometimes finds, in the literature, a conflict of opinion between proponents of unfair contract legislation and the proponents of the view that the common law is the proper forum for the pursuit of greater substantive equity in contracts. I subscribe to the views expressed by Sutherland, namely that this should not involve an "either/or" solution and that both the legislature and the courts have a role to play: "After [Barkhuizen v Napier 2007 (5) SA 323 (CC)] it is impossible to argue that there is not a need for [consumer legislation, specifically the Consumer Protection Act]. It accordingly may be suggested that the Napier case will soon be of little practical relevance. However, it is proposed that the opposite is true. It is necessary that these legislative reforms should be accommodated within a general contract law and insurance law that are in harmony with it. These fundamental statutory reforms cannot be treated as exceptions to general and traditional contract law or insurance law. Harms JA and his brothers have so little faith in their colleagues' ability to develop the law? To argue against judicial discretion by stating that 'die maatstaf is dan nie meer die reg nie maar die regter' ... is to hark back to a nineteenth century notion of judges as 'wetstoepassers' in codified in applying a good faith standard of fair dealing, many cases of the violation of such a standard should be open to adjudication on the basis of common sense. As Lewis observed regarding some cases that involved creative judicial attempts to control the use of contractual exemption clauses in English law, such decisions "seem intuitively correct in that they match our commonsense perceptions of what is just. They do not seem to be manipulating the rules of contract". 160 It is not my intention here to even attempt to exhaustively define and populate my suggestion for an ethical standard of fair dealing based on the boni mores and ubuntu, as I believe that, if such suggestion were to find support in our courts, judges would be the best suited to developing such a standard and to undertaking such development based on the cases before them. I do think, however, that there are a number of specific elements which would have to be encompassed in such a standard for judicial consideration in any given case, and that we already find these elements either in the judgments of our courts or in the consumer legislation. The astute reader will note that these suggested factors are a bit of a mixed bag, incorporating factors relating to contract formation, mistake, public policy and the content of contracts. I believe, however, that they are all relevant to the determination of compliance (or not) with an ethical standard of conduct in contracting, which envelopes the various stages of the contract's establishment and existence (treating the contract as a lived reality rather than a snapshot of a legal bargain). So, bearing in mind that this is not intended to be the final word on the subject, I will rather simplistically submit that all of the following are elements which courts could use as guidelines in order to determine compliance with an ethical standard of good faith in any given case: legal systems, capable only of robotic, conveyor belt style operations, rather than as the creators of law whose intellectual gymnastics and powerful interpretations have entranced generations of lawyers and scholars. -The relative bargaining power of the parties: 161 We find support in the case law (and elsewhere) 162 for the notion that inequality of bargaining power is a factor to be taken into account in determining whether or not a contract (or a term in a contract, or its enforcement) offends public policy. 163 Of course, inequality per se should not be determinative, but rather the illegitimate abuse of bargaining power in any given case. 164 I would suggest that this would indeed be a relevant factor to consider in conjunction with the parties' conduct in any given case; 165 -Whether or not prior to or at the time the contract was made its provisions were the subject of negotiation: This is one of the guidelines for the determination of "unreasonableness, unconscionableness or oppressiveness" suggested by the SA Law Reform Commission in its earlier proposal for unfair contract terms legislation. 166 Included in this could be a consideration of whether or not it was reasonably practicable for the party seeking relief to negotiate for the alteration of the contract or to reject any of its provisions. 167 I would suggest that courts would also be able to find valuable guidance on the role, nature and consequences of contracts of adhesion in our law in the minority judgment of Sachs J in Barkhuizen v Napier; 168 161 With the understanding that bargaining power should be understood in the sense of "the power to obtain a preferred outcome in a transaction" -see Barnhizer 2005 U Colo L Rev 152.

162
This was also suggested as a factor (amongst the guidelines) to be taken into account in the determination of "unreasonableness, unconscionableness or oppressiveness" by the SA Law Reform Commission in its proposal for unfair contract terms legislation -SALRC 1998 www.justice.gov.za; suggested s 2(a) of the proposed Bill. More generally, some guidance may also be found in the SA Law Reform Commission's 'catch-all' guideline, namely "the context of the contract as a whole", in which case the court may take into account the identity of the parties and their relative bargaining position, the circumstances in which the contract was made, the existence and course of any negotiations between the parties, any usual provisions in contracts of the kind or any other factor which in the opinion of the court should be taken into account. 175 Here, there would be scope for consideration of the circumstances of the parties, and I would suggest that further guidance may be found in section 40 of the Consumer Protection Act, where it states that "it is 169 Bearing in mind that the Supreme Court of Appeal has in recent years been rather inconsistent in its approach to this issue -see Pretorius 2010 THRHR 497 et seq.  See ss 48(2)(a) and (b), which provides that a transaction or agreement, a term or condition of a transaction or agreement, or a notice to which a term or agreement is purportedly subject, is unfair, unreasonable or unjust if "it is excessively one-sided in favour of any person other than the consumer or other person to whom goods or services are to be supplied" or "the terms of the transaction or agreement are so adverse to the consumer as to be inequitable". unconscionable for a supplier knowingly to take advantage of the fact that a consumer was substantially unable to protect the consumer's own interests because of physical or mental disability, illiteracy, ignorance, inability to understand the language of an agreement, or any other similar factor". 176 There would also be scope for consideration of the conduct of the respective parties in the formation and execution of the contract. 177 In order to provide some more concrete guidance on the application of the suggested ethical standard of good faith, I will -again briefly and rather simplistically -attempt to consider such application in a more practical sense, by examining the potential role for such a mechanism in an actual case.  The unlawfulness on all the grounds established above is a breach of the right to equality in s 9(1) of the Constitution. The Bank conducted this transaction oblivious of the purposes of the NCA. Notwithstanding the manifest inequality in its relationship with its bargaining counterpart it sought to snatch an advantage.
I will not evaluate the correctness of the court's approach in this case here (beyond remarking that the learned judge's automatic recourse to the constitutional equality right was not explained, 186 and that such direct recourse to section 9 of the Bill of Ultimately, however, and as already suggested, it would be the task of the courts to determine the parameters of such an ethical duty of good faith based in the boni mores and ubuntu. The fact that this exercise would have to proceed on a case-bycase basis, however, should not detract from legal certainty in the application of such a standard of good faith. I will refer the reader again to the views of De Vos (ie that the "notion that legal rules provide almost absolute legal certainty is an obvious fiction that cannot bear scrutiny") 201 and of Barnard-Naudé, who believes that judges act under a legal duty to "calculate with the incalculable" ("It is when judges pretend or desperately cling to the belief that the judicial decision can be a simple calculation, a simple rule application, for which they are ultimately not responsible because the law is the law and precedent is precedent, that things become worryingly meaningless" to actively pursue substantive equity in the cases before them. And the establishment of a culture of good faith adjudication would surely serve a preventative or deterrent function and, eventually, translate into the negotiation and enforcement of contracts that are more in line with the good faith standard. This could, ultimately, go some way towards obviating the need for such adjudication by our courts by ensuring that only the most egregious cases of bad faith will end up in court, thereby eliminating the hard cases that make for bad law. Should we really ask for much more than that?

Conclusion
In this piece I have argued that the Supreme Court of Appeal's current understanding and apparent devaluation of the role of good faith in contract law is wrong, and that this court has not sufficiently explained and defended its 'conservative' stance on good faith in respect of its apparent conviction that "this road leads to uncertainty in contract". I have also pointed to the fact that the Constitutional Court has provided strong indications not only of a possible view that the SCA's understanding of good faith is incorrect, but also of a willingness to change the law as soon as an appropriate opportunity presents itself. More specifically, I have argued -and I must admit that this is not a novel argument 203that a robust role for good faith can be developed, based on the legal convictions of the community (or boni mores), and that the SCA has not sufficiently explained its rejection in Brisley of the idea of the application of the boni mores to contracts.
There are strong indications from the CC that ubuntu will be used to develop a more robust role for good faith, which appears unassailable in the light of the When the (then) Appellate Division so famously 'buried' the exceptio doli generalis in Bank of Lisbon 205 it did so relying quite heavily on the fact that this "superfluous, defunct anachronism" 206 had never been received into our law, because all our contracts are, fundamentally and as a matter of first principles, viewed as being contracts bonae fidei. It is ironic then that this same court -and especially so in its new guise in our constitutional era -has failed to properly recognise this centrally important good faith component of contracts, through a limp-wristed conception of bona fides as nothing more than a footnote (or fine print) to the text (the text that is the less 'slippery' and more easily quantifiable black letter doctrines and rules of our law of contract). The exceptio would be superfluous only if the common law recognised a comparable mechanism to achieve the same aims; but in its failure to assert this elementary logical precept it would appear as if our courts have failed us.
In the final analysis, I believe that the time has come for the courts to realise that, as Liew observes, a robust doctrine of good faith is not something that is at all at odds with the objectives of our law of contract or its continued legitimacy and existence (although it may very well be at odds with some central precepts of MacQueen "Good Faith in the Scots Law of Contract" 9 highlights a prominent concern of the Common Lawyer when faced with suggestions for a robust doctrine of good faith, one that is strongly reminiscent of our SCA's stance on the issue: "A common concern is the uncertainty which would result from the introduction of a standard of uncertain content with strong moral overtones, and the damage which would be done to the commercial contracting practices which have provided the bedrock of English contract law. Traditionally its approach has been founded on the perceived bases of a market economy, emphasising the right of each party to pursue its own interests, whether in the creation or the exercise of contractual entitlements, and to leave the other to do likewise; not at all consistent with a positive requirement of good faith, with its stress upon the need to take account of the other party's position and the regulation of abuse of right." 208 Liew 2012 Sing JLS 440. Good faith, properly understood, is not alien to the institution of contract; on the contrary, without mutual trust, candour and sincerity, it is difficult to see how contracts could be agreed at all. If these premises are accepted, then the way is open for an obligation of good faith to be implied in law into every contract. What the content of that obligation is, however, must always be fact-specific, taking into account the intentions of the parties, the purpose of the contract, and the relevant matrix surrounding the contract's formation and operation. In other words, while a default obligation of good faith may be implied into every contract by law, the precise scope or extent of that obligation will always be a matter of construction or implication in fact. Such an approach adequately balances the communitarian interests of the proponents [of a robust doctrine of good faith] with the opponents' rightful insistence that agreements should be rooted in the will of the parties, and that contractual rules must therefore be clear and predictable in order to facilitate the implementation of such intentions. Being guided by the parties' intentions in this regard thus gives the doctrine of good faith both legitimacy and practicality.
Once we accept the natural place for good faith, we can start to use it to better develop not only our law of contract but to enrich the tapestry of our very society.
We will still, and for some time to come, be faced with the colonial tradition of our legal system (including, in the current context, the law's apparent long-held preference for the classical, liberal theory of contract law), as well as our relatively unique socio-economic conditions and the realities of our extremely unequal society.
Recourse to the law is still mostly the domain of the privileged (and they are no longer, necessarily, only previously-advantaged, white South Africans -the bad guys are no longer so easy to spot). In the face of these dichotomies, it is clear that not all the kids in the playground can be trusted to play fair without some form of communitarian ethical policing. The Constitution is there, very explicitly, to protect the weaker kids against the bullies.
Assumptions of autonomy and unfettered volition so inherent in our courts' As Naudé and Lubbe observed in the context of contractual exemption clauses: "There is a growing body of thought to the effect that in so far as good faith (bona fides) is an underlying principle of contract law, it imports, amongst other dimensions, that the pursuit of one's own interests be tempered by a measure of concern for those of others. The constitutional value of dignity dictates not only that agreements voluntarily entered into must be respected by the law, but also that the law of contract should secure 'a framework within which the ability to contract enhances rather than diminishes our self-respect and dignity'. The notion that human dignity as a constitutional constraint on human choice might render an agreement entered into contrary to public policy has been recognised in respect of an agreement that infringes on a person's bodily integrity, and also in respect of an agreement that reduces a person to economic servitude. It is reflected in our common law's condemnation of agreements that promote forced labour and constitutes the essential premise of the Sasfin decision that an agreement which is so tyrannically one sided and destructive of the legitimate interests of one's contractual partner as to reduce him or her in an economic sense to a slave, is contrary to public policy. In principle, an exclusion clause which infringes the essence of a contract by undermining the basic relationship of reciprocity existing between the undertakings characteristic of the contract envisaged by the parties should likewise be regarded as legally problematic on account of its tendency to reduce a contracting party to an object of economic gratification of the other. Hawthorne highlights the classical liberal theory of contract's shortcomings in respect of the pursuit of substantive equality: "The response of the classical model in the guise of formal equality has proven to be illusory and new learning is developing models attempting to redress the balance in order to restore party autonomy, evaporated consensus, and mutual beneficence, in her quest to end exploitation of the weaker in society." Hawthorne 2010 SAPL 90. The problem is, of course, not unique to South Africa, and other systems characterised by great inequality (such as Brazil) have also wrestled with it: "Equality could no longer be viewed simply as freedom from governmental coercion, particularly in countries such as Brazil that have a dramatic concentration of wealth and power. This context has led to the idea that the parties to a contract should be viewed concretely in their differences, rather than abstractly as equal rights-bearing subjects. Problems such as poverty, inequality of opportunities or housing cannot be addressed by private law, and private law should not be used to reach these goals. But of equal importance is the way that citizens deal with each other and what they may expect from one another. And this is exactly the role of private law, through concepts such as duty of care, good faith and proportionality and always balancing conflicting interests, using notions and theories that have come to us, constantly refined, after centuries of litigation, debate and legal thinking ... Efficiency or the creation of wealth is not, and should not be, the prime focus of private law. If the outcome of private law is efficient, all the better. Things go seriously wrong when this is forgotten ... The existence of a society, of a community, presupposes that its members interact with each other, whether to have a little chat or to enter into a contract. When they do this in the understanding that they are all subject to the same rules of law in this matter, then this also confirms their common identity. So in the end private law also contributes to the social cohesion and even to citizenship. to above in the text: "Ours is a multi-racial, multi-cultural, multi-lingual society in which the ravages of apartheid, disadvantage and inequality are just immeasurable. The extent of the oppressive measures in South Africa was not confined to government/individual relations, but equally to individual/individual relations. In its effort to create a new order, our Constitution must have been intended to address these oppressive and undemocratic practices at all levels. In my view our Constitution starts at the lowest level and attempts to reach the furthest in its endeavours to restructure the dynamics in a previously racist society." 218 Dirix 2010 TSAR 78-79. 219 In SALRC 1998 www.justice.gov.za, referred to earlier. 220 Hefer 2004 Journal for Juridical Science 1-14.
through the structured silence of disputes that never make it to court". 225 Davis, with reference to Hale, believes that the axiomatic 'hard rules' of contract law cannot provide a neutral backdrop for private economic relations that are congruent with the ideals of our constitutional dispensation. He believes that these rules, ultimately, affect the distribution of wealth within our society, and thus the approach of our courts to the application of such rules has a profound role to play in the socio- transformation are inherently antagonistic. Thus the caution of the judiciary mandated to uphold the rule of law is understandable. However, 'the new learning' theories are developments taking place within the rule of law and represent the common denominator, that markets require steering in order to distribute wealth, to establish acceptable power relations and to provide meaningful opportunities. The introduction of the duties of solidarity and cooperation, an essential part of the relational contract theory concretised in the obligation of disclosure and transparency, would fit within the values and norms of the Constitution." Hawthorne 2010 SAPL 92-93. 227 Rautenbach 2011 THRHR 521. 228 As Thomas observes in respect of the experience of the application of ubuntu in socio-economic rights litigation: "It is not enough that considerable attention is given to morals in expositions of ubuntu. A shift is needed in a way that challenges neo-liberal discourse and practices. A starting point would be a focus on solidarity and communalism, which bear a 'family resemblance' to concepts used in defence of socioeconomic rights, and have redistributive goals aimed at infusion of an ethics of responsible and mutually-respectful contracting, which would serve to contribute towards the achievement of greater social justice for the chronically disenfranchised more generally. 229 Ultimately, a robust doctrine of good faith in contracts might play a significant role in order to save the day and resurrect the idyllic hopes of a starry future for our rainbow nation -one that started so positively 230 but increasingly seems to be petering out into becoming yet another failed democratic experiment built upon shaky colonial foundations, with not enough political will amongst entrenched political elites to effect real transformation. A persistent refusal by our higher courts to entertain scope for the development of substantive equity in contracts would serve only to ensure that the majority of our people will -bar, possibly, at the ballot box -in most facets of their daily lives continue to be reduced to cannon fodder for those with economic power, who can proceed with impunity to personify unscrupulousness in their dealings with others under a "philosophy of winner takes all". 231 Without wanting to overstate the potential role of a robust doctrine of good faith, it might very well serve, ultimately, to be an integral component (if not the be all and end all) of Davis's "silver bullet" to eventually erase apartheid from the socio-economic landscape. 232 We are all currently subject to a pernicious catch-22 situation regarding the development of the law on good faith in our highest courts. The SCA has unequivocally indicated that it will not revisit its current stance on the issue unless ameliorating the class inequalities rooted in capitalist social relations. Such inequalities have socially and politically divisive consequences that threaten the political stability and consolidation of a fledgling democracy." Thomas 2008 International Journal of African Renaissance Studies 56-57. Greater substantive equity in contracts may very well be good for business, as Pillay J observed in Standard Bank of SA v Dlamini 2013 1 SA 219 (KZD) para 78: "Institutions such as the Bank should welcome the framework proffered by the [National Credit Act] and the [Consumer Protection Act] for bridging the socio-economic inequalities substantively and for reforming the credit industry, if for no reason but that sustained inequalities and need lead to unrest and social instability which is not good for business." 229 As Bohler-Müller argues: "I submit that the strategy of using ubuntu to enrich human rights and constitutional discourse should be seen having both political and ethical dimensions. I therefore remain convinced that the re-conceptualisation of ubuntu may take us beyond strategy to a future-oriented utopianism pointing to an "elsewhere" beyond our current conceptions of the legal and political as purely instrumental struggles for individual and group power." Bohler-Müller "Some Thoughts on the Ubuntu Jurisprudence" 480.

Register of internet sources
Barnard-Naudé 2011 www.thoughtleader.co.za Barnard-Naudé J 2011 Contract Law, Good Faith  Copyright of Potchefstroom Electronic Law Journal is the property of Faculty of Law, North-West University and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use.