Abstract

In this note, I revisit the concept of the fundamental contradiction that Kennedy proposed in 1979 as the ‘essence of every legal problem’. I argue that the Constitutional Court post-Barkhuizen has not taken the fundamental contradiction seriously, and, as a result, the decision in Beadica exhibits the fundamental contradiction in a glaringly transparent manner. In the course of the discussion, I also consider the literature on ‘good faith’ that has emerged in the aftermath of Beadica and the attempts, it would be seem, to wrench some sort of coherence out of it. I suggest that it is only when the Constitutional Court becomes more sensitive to the actual progressive demands of transformation in the contractual realm, instead of being preoccupied with an elaboration of the continuation of a liberal status quo (as it is in Beadica), that it will be able to transcend forcefully out of the fundamental contradiction. For as long as courts hark back to the jurisprudence of yesteryear, they will remain caught in the fundamental contradiction to the point that they will render our jurisprudence devoid of meaning and coherence.