Abstract

The role of fairness in the law of contract – and, more particularly, the extent to which a court may refuse to enforce an otherwise valid contract term on the grounds of unfairness – has for many years been a very contentious issue in South Africa. The Constitutional Court and the Supreme Court of Appeal appear to hold divergent views on the matter. This has led to some tension between these two courts, and is causing an undesirable level of legal uncertainty, as judges in the High Court choose to follow one approach or the other. Each new issue of the law reports promises to herald another development in what has become an ongoing saga. This paper traces the unfolding story through the cases, and concludes with a plea for a definite ruling by the Constitutional Court on the issue.