Abstract

In this note I reconsider the Constitutional Court’s judgment in Botha v Rich NO 2014 (4) SA 124 (CC), which has attracted much criticism for its apparent willingness to subject all exercises of contractual rights to an overarching test of ‘fairness’. I argue for a narrower reading which emphasises the case’s statutory setting. I conclude by considering the implications of this narrower reading for the pending appeal decision of the Constitutional Court in Beadica 321 CC & others v The Trustees for the time being of the Oregon Trust & another 2019 (4) SA 517 (SCA).