Unreasonable, unconscionable and oppressive contract terms in South African and Western Australian Consumer Law

Abstract: Unreasonable, unconscionable and oppressive contract terms have for a long time been a subject of concern. In South Africa, the matter enjoyed the attention of the South African Law Commission and their recommendations regarding unreasonable, unconscionable and oppressive contract terms had the potential to adddress some of the concerns associated with these terms. However, instead of implementing the recommendations of the Commission in toto, the Consumer Protection Act 68 of 2008 was implemented in April 2011 and addressed only a number of concerns raised by the Law Commission. Against this background, this dissertation outlines the developments of the South African Consumer Protection Act in comparison with the Ausralian Consumer and Competition Act specifically in respect of unreasonable, unconscionable and oppressive contract terms. The dissertation compares the South African Law Commission’s recommendations with the Australian Productivity Commission’s recommendations, (both Commissions compiled reports regarding their respective country’s consumer law and focused on unfair terms) and investigates how these recommendations were accepted and implemented by each country’s legislatures. It is argued that the South African Consumer Protection Act should have considered including more of the recommendations made by the South African Law Commission than it did. Fundamental aspects pertaining to any debate on unreasonable, unconscionable and oppressive contract terms is fairness and the Constitution of the Republic of South Africa, 1996. There is a body of academic work dedicated to the role of the Constitution in law of contract and how it should be used to infuse fairness into contracts. Ultimately, the reluctance of the courts to apply the Constitution in the realm of contract law re-iterates the need to have dedicated legislation that addresses recurring issues pertaining to unreasonable, unconscionable and oppressive contract terms. There is a great deal of emphasis placed by both countries’ Commissions on the need for substantive fairness and not merely procedural fairness and this aspect is elaborated on in this disseration. In the final instance, this dissertation discusses South Africa’s more conservative approach to unfair terms in consumer law in comparison to Australia’s approach and concludes with a thought on whether the South African legislature could have prevented some of the current lacunae pertaining to unfair contract terms. In comparison with Australian law, it is submitted that there were in fact ways in which the South African...LL.M. (Commercial Law