Increasing the role of fairness in South African standard-form contracts : a comparative analysis

LL.M. (Commercial Law)Abstract: The study focuses on the need to increase the role of fairness in standard-form contracts in South Africa. Of great importance is the form and contents of standard-form contracts which are often at loggerheads with the notions of fairness. Several case laws discussed helps to show that the role of fairness has not been key in the South African standard-form contracts in general. These cases that limited the role of fairness accentuates that, fairness cannot be invoked as a free-floating doctrine and that pacta sunt servanda runs supreme since courts are not supposed to interfere with private agreements. Two remarkable improvements in South African law are admirable. Firstly, the development that came in form of court decisions in Botha v Rich, Uniting Reformed Church, De Doorns v President of the Republic of South Africa and Others and Naidoo v Birchwood Hotel, the named cases provides evidence of a significant step in the direction of fairness and equity in contractual relationships. However, there is still need for further development through court’s interventions that will act as a precedence, since there is still uncertainty as to whether the above given decisions lead as guidelines. The Consumer Protection Act, is a statute in South Africa that plays a major role in infusing fairness in other standard-form contracts which form part of consumer contracts, however, if it compared to the English Consumer Rights Act it is still lacking. There is still much to be done in South Africa to ensure that fairness is increased in all standardform contracts through common law development or when common law fail through a statute or statutes