Abstract

Keywords

Bona fides; common law of contract; contractual fairness; good faith; legal historical comparison; legal pluralism; Roman law of contract; Ubuntu.

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By understanding what is wrong, we may be able not only to understand our history, but also to shape it. If we lost something long ago which we have been unable to do without, we should try to remember what it was like. We should consider why it was so important.1

1 Introduction: History as a narrative

In Ancient Roman Lawyers, Tuori2 employs three examples to show how Roman law scholars interpret Roman historical sources to support their modern ideals. He explains that "[h]istory is not fiction, but the writing of history has some characteristics of creative writing",3 its fictional character being more pronounced where historical sources on a specific issue are in short supply.4 He concludes his book with the following question:

Because facts are elusive in the light of the historical sources, all that remains are stories. But does the actualisation of legal history necessarily mean a distortion of history? If we imprint our ideals on the Romans, are we in fact any more talking about the Romans or ourselves? Because narration creates a story that gives meaning to fragmentary sources, is a story meaningful only when we can relate to it? Are the Romans of Roman legal history simply us, assembled in a historical togaparty?5

In a study which investigates the possible harmonisation of good faith and ubuntu in the South African common law of contract, there is a real danger of imprinting the ideals of one concept onto the other. The historical sources on the development of good faith in Roman law are rare and incomplete, and some date from later historical periods (and are consequently already a product of historical interpretation).6 In a similar manner, due to the oral tradition in pre-colonial African jurisprudence,7 most of the written sources on ubuntu are relatively new in historical terms8 and the influence of colonialism

on these sources cannot be discounted.9 Does this mean that any attempt to compare their roles in legal development is doomed to fail? Or that such a comparison would be of no value in the development of modern legal ideals?

Tuori10 argues that we use legal history as a self-reflective tool "to remind us where we come from" and that we use historical narratives to construct our identity. These narratives are essential to ensure a sense of belonging to a community. He maintains that dismissing these narratives as mere stories ignores their cultural significance and the role they play in our imagination.11 Van der Walt12 proposes that the cultural significance of these stories in our modern law should be critically investigated. He specifically refers to the tradition in South African law of citing Roman rules as "universal and timeless" without considering the context within which these rules operated in Roman times.13 He argues that historical research should not aim to support or develop a legal doctrine but rather to understand the application of the Roman law rules in their specific context.14 Any historical investigation of Roman law should take cognisance of the political, social, economic and cultural context within which the Roman law rules operated and aim for "a reality dependent on the interpreter, who in turn, is conditioned by his legal and general cultural environment".15 Consequently, he argues that legal historical research in the South African context must be approached within the framework of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution) and should aim to provide alternative historical accounts of traditional private law concepts and ideas.16 Although he stresses that these alternative stories do not constitute "an uncontested or 'monolithic' view of what certain central rules or institutions of private law are", he argues that they can generate ideas about the role of law in societal transformation.17

2 The research approach and structure of the articles

A mere chronological discussion of the development of good faith in Roman contract law to its present role in the South African common law and ubuntu from its indigenous origins to its current role in South African contract law

would not provide a meaningful story about these concepts. Burckhardt18 points out that "it may be right to begin at the beginning in any kind of study, but not in history". Rather, it should be considered where and why these concepts have been linked with modern law and what part of their legal history could throw more light on modern legal ideals. For that reason, this article starts with the contemporary ideas that will guide the interpretation of the legal historical sources, and as pointed out by Van der Walt above, these refer to the ideals of South Africa's new constitutional order. The Constitutional Court decisions of Barkhuizen v Napier,19 Everfresh Market Virginia v Shoprite Checkers20 and Botha v Rich21 are discussed as they provide good illustrations of the constitutional ideal of harmonising the concepts of good faith and ubuntu in the South African common law of contract.

In Barkhuizen v Napier the Constitutional Court considered the role that good faith and ubuntu could play in the development of the common law of contract. First the Court held that public policy implicates notions of fairness, justice, equity and reasonableness, and as such, it must take into account the principle of "simple justice between man and man".22 Lubbe23 linked this notion with good faith and it would seem that the Court also makes this link, because later in the judgment it states that good faith refers to "justice, reasonableness and fairness".24 However, instead of linking the notion of "simple justice between man and man" with good faith the Court explicitly links it with ubuntu.25 Therefore, it seems that the Court is of the view that both notions refer to justice, fairness and reasonableness and can be incorporated under the policy consideration of simple justice between man and man.

In Everfresh Market Virginia v Shoprite Checkers, the Constitutional Court stressed the importance of good faith in the law of contract and the urgency and importance of determining its role in a constitutional framework.26 The Court also emphasised the importance of ubuntu in determining the spirit,

purport and objects of the Constitution.27 In his minority judgment, Justice Yacoob28 made the following statement:

The values embraced by an appropriate appreciation of ubuntu are also relevant in the process of determining the spirit, purport and objects of the Constitution. The development of our economy and contract law has thus far predominantly been shaped by colonial legal tradition represented by English law, Roman law and Roman Dutch law. The common law of contract regulates the environment within which trade and commerce takes place. Its development should take cognisance of the values of the vast majority of people who are now able to take part without hindrance in trade and commerce. And it may well be that the approach of the majority of people in our country place a higher value on negotiating in good faith than would otherwise have been the case. Contract law cannot confine itself to colonial legal tradition alone.

These statements imply that ubuntu and good faith are not so far removed from each other and that they may be based on the same or similar values. In addition, Justice Yacoob is of the view that the Constitution may require more emphasis on these values than is found in the common law of contract currently, due to a shift in the legal convictions of the community, which requires a greater concern for contractual justice.29

As the law stands today, good faith is not an independent rule that can be used to strike down a contract due to unfairness but operates as an underlying principle that finds expression through existing doctrines and rules in the law of contract.30 However, the Constitutional Court in Botha v Rich showed a willingness to use the principle of good faith in a more flexible manner to counter any injustice resulting from the rigid application of the existing rules and doctrines of the common law of contract and to prevent the unfair enforcement of a contract term.31 Although the Court did not refer to the concept of ubuntu expressly, it will be argued that its application of the principle of good faith is a step forward in developing the concept of good

faith in accordance with the ideals of ubuntu as an underlying constitutional value.32 Cornell and Fuller33 argue that since ubuntu requires that justice should be done between individuals, good faith should develop from an abstract value underlying the substantive law of contract into an independent substantive rule that can be used to strike down an unfair contract term that would otherwise be enforceable. To date, ubuntu has not been applied in this way, but it is the possible future story the Constitutional Court envisages for ubuntu and by implication good faith.34

Once upon a time, good faith (bona fides) played a prominent role in ensuring contractual fairness in Roman law:

During the later Republic, the expansion of the Roman power in the Mediterranean world and the social and economic changes by which it was accompanied had a profound effect on the character and development of Roman law. By the end of this period the old system of law had partly been abolished or changed in such a way that its scope was extended to meet the needs of a complex and highly sophisticated society. It was in response to changed social, economic and political conditions that Roman law broke through the barrier of formalism, was secularised and internationalised, and from a system that was strictly and often unjustly applied, became a highly developed system marked by its flexibility and adaptability to new and changing conditions.35

In fact, Schermaier36 argues that the story of good faith in Roman law is the first illustration of how "equitable ideas" can revolutionise a legal system. Furthermore, by investigating the principles underlying the Roman law of contract in their greater historical context, Roman law "can offer solutions, or at least give assistance for the solution, of modern legal problems".37 Therefore, the aim is to investigate the introduction and development of good faith (bona fides) in the Roman law of contract in a way that informs the emerging role of ubuntu in the South African common law of contract.

Four themes are explored in order to construct a more contextual legal history of good faith in Roman contract law and compare this history with the emerging role of ubuntu in the South African common law of contract today. These themes are:

The first two themes are investigated in this article while the remaining two themes are examined in a further article39 which also contains the final conclusion. Each theme is explored with reference to the introduction and development of good faith in the Roman law of contract40 where after a comparison is then drawn with the emerging role of ubuntu in the South African common law of contract.

Furthermore, as this investigation relates to the future role of ubuntu in the common law of contract, the focus will be on the concept of ubuntu in its modern appearance. As Pieterse41 explains:

[A] return to its [ubuntu's] pre-colonial state is neither practically nor ideologically feasible. Yet, certain of the values underlying pre-colonial thinking still reverberate through contemporary African society. Through engaging with these values, in their contemporary manifestations, a view emerges of law and society that might prove useful…

Finally, Himonga42 argues that the best approach to determining the possible future role of ubuntu in law is to focus on the judicial descriptions of ubuntu as found in South African law. Therefore, both articles focus on the legal description of ubuntu as found in the decisions of the Constitutional Court.

3 Addressing legal pluralism

3.1 The role of good faith in addressing legal pluralism in Rome

3.1.1 Introduction

The exact age and origin of the bonae fidei actions are unknown and contested.43 The generally accepted theory is that these actions were introduced by the peregrine praetor, who had jurisdiction over disputes between foreigners.44 This suggests that bona fides played an important role in dealing with legal pluralism in Rome and it is this idea that is explored here. First though, some historical context of the pre-existing Roman law is necessary to understand where the bonae fidei actions fit into the greater Roman law history.

3.1.2 An historical overview of the ius civile

For the purposes of this investigation, the story of the ius civile starts in the early republic of Rome.45 Prior to this period Rome was a monarchy, until 509 BC when the king was expelled from Rome.46 The early republic was characterised by the struggle of the orders between the patricians and the plebeians.47 In the early republic, private law was based on customs more than legislation48 and all state affairs were managed by two consuls selected annually from the patrician class.49 As a result, the patricians controlled the

content and administration of the law.50 A major grievance of the plebeians was that they wanted the existing law to be made public so that they could have better access to justice.51 Consequently, one of the results of the struggle of the orders was the law of the Twelve Tables.52 The law of the Twelve Tables dealt with private, public and sacral law with specific focus on the prescribed procedures.53 Although it constituted a publication of the existing law rather than new rules,54 later Romans viewed this law as the source and origin of all Roman law, and in conjunction with the interpretations given to it by the pontiffs (and later the jurists), it comprised the ius civile.55

The ius civile was strict, rigid and formalistic in nature.56 Gaius57 explains as follows:

The actions of the practice of older times were called legis actiones, either because they were the creation of statutes … or because they were framed in the very words of statutes and were consequently treated as no less immutable than statutes. Hence it was held that a man who, when suing for the cutting down of his vines, had used the word ‘vines’, had lost his claim, because he ought to have said ‘trees’, seeing that the law of the Twelve Tables, on which his action for the cutting down of his vines lay, spoke of cutting down trees in general.

As demonstrated by the above example, the formulas of the legis actiones (based on specific combinations of spoken words and gestures) had to be followed exactly and any deviation, however slight, would result in the rejection of the claim.58 More importantly, the ius civile only applied where both parties to the dispute were Roman citizens.59

As already mentioned, the content and administration of the law was controlled by the patricians as the consuls were appointed from the patrician class. In 367 BC, the leges Liciniae Sextiae were passed in terms of which one of the consuls had to be appointed from the plebeian class and this was a further victory for the plebeians in the struggle of the orders.60 Another consequence of the leges Liciniae Sextiae was the creation of the office of the praetor who was later referred to as the urban praetor (praetor urbanus).61

The urban praetor took over the duties of the consuls in respect of the administration of civil disputes between Roman citizens.62 He was elected annually and invested with extensive powers (imperium)63 which enabled him to regulate legal proceedings.64 He would issue his annual edict at the beginning of his office term65 which set out the rules and procedures that would be followed to resolve private law disputes during his term in office.66 He also had the right to grant a new remedy during his year in office if he thought it necessary.67 He further had to ensure that the dispute between the parties was formulated correctly, after which he had to appoint a judge (iudex) to adjudicate the dispute.68 The urban praetor's edict was based upon the existing ius civile and consequently contained remedies based on the strict and formal legis actiones.69 These actions are referred to as the stricti iuris (strict law) actions.70

3.1.3 The development of the ius honorarium by the peregrine praetor

During the third century BC the number of foreigners (peregrini)71 living in Rome increased dramatically, which resulted in a rise in business transactions between Roman citizens and foreigners.72 These foreigners

could not institute any of the legis actiones because the ius civile was available to Roman citizens only.73 This meant, for the most part, that foreigners residing in Rome could not take part in legal transactions or institute any legal proceedings.74 To address this situation, an additional praetor, called the peregrine praetor (praetor peregrinus) was appointed in 242 BC75 to administer civil disputes where foreigners were involved.76 However, where the urban praetor applied the formal and strict ius civile between Roman citizens, the same could not prevail in the peregrine praetor's forum.77 Many of the foreigners in Rome were traders and their disputes resulted from their commercial dealings with each other and with Roman citizens.78 A more informal and effective procedure was required to deal with these commercial transactions, which were governed by informal

trade usages and customs.79 Powell80 explains that the existing Roman law remedies were not accessible or suitable for use by foreigners:

The parties to these old actions had to define the issue between them in a precise form of words, in Latin, and sometimes with oaths invoking the Roman gods. That was all very well for Roman citizens who spoke Latin and who worshipped the Roman gods. But it meant a complete denial of justice to the foreigner whose Latin was non-existent or imperfect and upon whom the Roman religion was not binding.

This resulted in the development of the formulary (per formulam) procedure81 by the peregrine praetor.82 The formulary procedure was characterised by "its simplicity, economy, and adaptability".83 As in the legis actiones procedure, the parties had to formulate their claim before the praetor, who appointed a judge once he was satisfied with the formula.84 However, while the formulas of the legis actiones consisted of spoken words and gestures that had to be followed exactly, the formulary procedure required that the dispute between the parties be reduced to writing, which meant that the parties did not need to follow formal words and rituals in setting out their claims.85 Through this flexibility, the peregrine praetor obtained a large discretion to influence the law.86 This influence was indirect, as the praetor had no legislative powers and could not introduce new legal rights.87 However, the praetor was responsible for setting out the legal procedures for the administration of justice in his edict, and as a result, he had the power to introduce new remedies.88 The new body of rules that emerged from the peregrine praetor's

edict became known as the ius honorarium or ius praetorium.89 These rules took account of the customs which governed commercial dealings with foreigners,90 were "based largely on common sense, expediency and fairness", and became known as the ius gentium.91

It is possible that the bonae fidei iudiciae (bona fide actions) were introduced92 in the peregrine praetor's edict.93 The most well-known bonae fidei contracts are the consensual contracts, namely sale (emptio venditio), letting and hiring (locatio conductio), mandate (mandatum) and partnership (societas).94 These contracts required no formalities and their validity was based on the agreement (consensus) between the parties.95 The formulae of the bona fide actions included a clause at the end of the formula instructing the judge to decide the case according to what the defendant ought to do or give "ex fide bona" (in good faith).96 Hence the judge had to decide the case

on the basis of the principle of good faith.97 Gaius98 explains that "the iudex appears to be allowed complete discretion in assessing, on the bases of justice and equity, how much ought to be made good to the plaintiff". In this context, good faith referred to honesty and fairness,99 which in turn denoted an objective and ethical standard of behaviour that was expected from the parties.100

It can thus be concluded that good faith played an important role in addressing the changing political, social and economic environment in Rome. The Romans showed an exceptional ability to deal with the changing environment by developing a separate flexible and fair legal system to govern legal transactions between Romans and foreigners. As will be seen below, it did not take long before these flexible procedures and normative principles were incorporated into the existing ius civile.101

3.2 The role of ubuntu in addressing legal pluralism in South Africa

The South African story of legal pluralism is still in the making and relatively new compared to the Roman one. South Africa is characterised by a multicultural and multiracial society in which different legal systems have been observed over a long period of time.102 However, these different legal systems did not always have equal status under the official law. It is peculiar, but due to the South African history of colonialism and apartheid, that the term "common law" in South African law refers to the system of law based on Roman-Dutch and English law that was imported to South Africa under colonial rule and which was developed by legislation and legal precedents over time.103 As such, the term "common law" does not include the indigenous legal systems collectively referred to as customary law, which are

followed by the majority of the population who are regarded as the indigenous peoples of South Africa.104

Before the adoption of the Constitution, customary laws in South Africa were treated as inferior to the common law.105 Where customary laws were recognised they were usually subject to a repugnancy clause. This meant that customary laws were applied as far as they were not repugnant to the principles and public policy of natural justice,106 which in turn were shaped by common law ideals.107 Bennet108 argues that this resulted in the common law influencing the customary law, but no such influence was exercised by customary law on the common law in return. This situation was compounded by the conservative legal culture that was prevalent under apartheid, and which Keep and Midgley109 describe as "conservative and positivist, with judicial deference to the executive and to parliamentary sovereignty; formalistic, technical and authoritarian; and 'of reasoned argument' and justification".

With the abolition of apartheid and the advent of the new constitutional order, customary law was finally recognised as a separate legal system with the same status as that of common law.110 However, this does not mean that customary law is treated like common law. Rautenbach111 refers to a number of examples to conclude that where common law and customary law are harmonised, such harmonisation takes place "within a framework of Western values". In addition, customary law is seen through the lens of common law rules and values, but the common law is rarely assessed from the viewpoint of customary rules and values. Keep and Midgley112 refer to this dichotomy as a failure to develop a legal culture that reflects customary values. They

further argue that a cohesive and plural legal culture is necessary in order to legitimise the new legal system in South Africa.113

The South African common law of contract follows a similar pattern. The classical model of contract law based on freedom and sanctity of contract114 has been followed for a long time.115 Freedom of contract entails that the parties can decide whether, with whom and on what terms to contract, which finds expression through consensus.116 This leads to the principle of the sanctity of contract, which refers to the idea that where a contract was entered into freely and where the terms thereof are not contrary to public policy it should be enforced.117 As explained by Adams and Brownsword:118

According to the classical view, the social function of contract is not simply to facilitate exchange: contract is a vehicle for maximising economic self-interest. Contractors may legitimately pursue their own interests, prioritising their own interests against those of the other side, subject only to such minimal constraints as those pertaining to fraud and coercion.

Accordingly, it promotes an individualistic approach to contracts that is based on the philosophies of individualism and economic liberalism119 which were imported from English law during the nineteenth century.120

The classical approach to contract law assumes that the contracting parties are in an equal bargaining position and therefore promotes formal equality.121 As Hawthorne explains:

Both classical contract law and the classical conception of the rule of law have as their point of departure that inequality between individuals is the result of natural differences and capabilities and that no legal system could be held accountable for recognising the formal equality of individuals.122

Hawthorne123 further explains that it "does not take into account the discrepancies in resources such as ownership, wealth and knowledge, which sustain inequality between the parties to a contract." Consequently, the classical model of contract law is not concerned with the respective bargaining position of the parties or the resulting unfairness of the bargain.124 In other words, the socio-economic circumstances of the contracting parties are not considered, and there is no duty on the courts to be concerned with the promotion of substantive equality and social justice.125

According to the classical liberal approach, good faith requires that a court should give effect to that which is agreed between the parties,126 which will ensure commercial and legal certainty. In turn, this forms the basis of a formalistic approach to contracts, as the courts need concern themselves only with the formal validity and enforceability of the contract as the substance of the contract has been agreed upon between the parties and must be honoured.127 Consequently, it is argued that substantive fairness should not be a ground for setting aside a contract.128

This model has been the target of increasing attack but with varying measures of success. Some of the reasons given for these attacks are "rampant inflation, monopolistic practices giving rise to unequal bargaining power, and the large-scale use of standard form contracts".129 However, these attacks reflect greater changes in the political, economic and social environment. The industrial age created great discrepancies in economic power that resulted in the exploitation of vulnerable individuals and groups.130 In South Africa this was further compounded by apartheid, which created further political, economic and social inequality.131 These inequalities are sustained in part by the existing value system underlying the law of contract, because the redistribution of property takes place largely within this

sphere.132 Consequently, the reliance on the common law ideals of freedom and sanctity of contract in conjunction with the formalistic and positivistic approach by the courts has the effect of sustaining and promoting these inequalities.133 This view can be identified in Justice Yacoob's minority judgment in Everfresh Market Virginia v Shoprite Checkers, as discussed above.134

In Roman law the introduction of the flexible principle of good faith was necessary to deal with the influx of foreigners into Rome, who had limited access to justice under the Roman ius civile. It was argued that it is possible that good faith was introduced by the peregrine praetor to deal with the increasing number of foreign traders who played an increasingly important role in the Roman economy and development. The situation in South Africa is different, but similar themes may be identified. In the colonial period the majority of the indigenous people were refused entry into the South African economy. With the introduction of the Constitution, everyone was granted equal right of access to the economy, but the indigenous people are expected to do so in terms of existing laws that are based on common law values that sustain and propound the existing inequalities. The incorporation of customary values (in particular the concept of ubuntu)135 into the common law of contract might prove valuable in addressing these inequalities and the move towards a more egalitarian society and a "cohesive, plural, South African legal culture".136 It is therefore not surprising that the Constitutional Court showed an intention to do exactly this in Everfresh Market Virginia v Shoprite Checkers.

4 The use of open norms to supplement and correct the existing law

4.1 The role of good faith in correcting and supplementing the existing ius civile

Initially, Roman citizens did not enjoy the advantages of the flexible formulary procedure that incorporated the principles of good faith and equity.137 As was

seen earlier, the urban praetor's edict was based upon the existing ius civile and consequently contained remedies based on the strict and formal legis actiones.138 However, it was not long before the new flexible formulary procedure was adopted by the urban praetor and incorporated into the ius civile.139 Around 150 BC140 the lex Aebutia was passed, in terms of which the formulary procedure was made available to Roman citizens.141 With the introduction of the flexible formulary procedure and the power to introduce new remedies,142 the urban praetor was granted an opportunity to incorporate the ius honorarium into the existing Roman ius civile.143 Van Warmelo144 argues that as time passed the urban praetor exercised this discretion where it was necessary to address the changing needs of society and that he looked to the ius gentium for guidance in making these changes. This meant that the urban praetor introduced remedies where the ius civile did not provide any or refused remedies where the ius civile would normally provide relief.145 The urban praetor exercised this discretion in accordance with what he considered to be right and equitable.146 Therefore, the new remedies introduced by the urban praetor were less concerned with the formal and rigid requirements of the traditional ius civile and aimed instead at achieving fairness and justice between the parties. As with that of the peregrine praetor,

the body of rules developed by the urban praetor was also referred to as the ius honorarium.147

A good example of such a supplementation or correction of the ius civile is the case of a contract induced by fraud.148 Initially, a stricti iuris contract induced by fraud was valid and binding as long as the formal procedures were followed.149 However, fraud was actionable in bonae fidei contracts.150 The discrepancy between bonae fidei and stricti iuris contracts was addressed with the introduction of the defence of fraud (exceptio doli) for the stricti iuris contracts in 66 BC.151 Initially, the exceptio doli was limited to fraudulent behaviour152 but as time passed the insertion of this defence into the formula "provided the judge with the same far-ranging discretion that he already had in bonae fidei iudicia."153 Gaius154 illustrates this defence with the following example:

Next we have to consider exceptions. These have been provided for the protection of defendants, since it is often the case that, though a man is liable at civil law, his condemnation in an action would be inequitable. Thus, if I have taken a stipulatory promise from you of a sum of money, on the understanding that I will advance you the amount on loan, and then I do not advance it, it is undeniable that an action lies against you for the money; for you are legally liable to pay it, being bound by the stipulation; but, because it is inequitable that you should be condemned on this account, it is settled that you must be protected by an exceptio doli mali.

By introducing these new remedies, the urban praetor (like the peregrine praetor)155 was creating new legal rights despite his lack of legislative power.156 While his influence was indirect, it was not small:

In this way he managed to change the whole character of Roman law. For all practical purposes he created a vast branch of law which extended and corrected the existing law, and filled in gaps in it.157

It could be asked how any praetor could have a vast influence on the existing law where he was appointed for one year only and his edict was valid during his term of office only.158 Van Warmelo159 explains that as the remedies contained in the edict were introduced to address the needs of the community, a practice developed whereby the newly appointed praetor would incorporate his predecessor's edict into his new edict, subject to the changes he regarded as necessary. This resulted in the new praetor's edict looking similar to that of his predecessor, and so the edicts looked more similar from one year to the next.160

A further result of these developments was that the flexible formulary procedure was preferred over the rigid and formal legis actio procedure, and gradually the legis actiones were replaced by the formulary procedure.161 Finally, in 17 BC the leges Iuliae iudiciorum publicorum et privatorum was passed, which abolished the legis actio procedure162 except for certain cases.163 As the years passed, the edicts of the urban and peregrine praetor became more similar in content.164 This explains why many years later the Digest describes the ius honorarium as "that which in the public interest the praetors have introduced in aid or supplementation or correction of the jus

civile."165 Van Warmelo166 points out that as a result of these developments, the entire Roman law became more flexible and fair and he argues that this created a place for the application of aequitas (fairness) in Roman law. The concept of aequitas is discussed in more detail in the next article.167

4.2 The role of ubuntu in developing the South African common law of contract

4.2.1 The introduction of ubuntu into law

In the light of the subordinate role of customary laws and values in South African history, it was indeed a historical event168 when the concept of ubuntu was included in the post-amble of the Constitution of the Republic of South Africa 200 of 1993 (hereafter the Interim Constitution) under the heading "National unity and reconciliation":

The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.

These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation.169

From this provision, it is clear that ubuntu was introduced into the official law as a restorative tool that could be used to correct the injustices of the past. Although the legal role of ubuntu has evolved since then and much has been written about this evolution, the link between ubuntu and restorative justice runs deep in ubuntu jurisprudence across various areas of law.170 As this article deals with the emerging role of ubuntu in the common law of contract, the focus will be on the parts of this evolution that shed light upon this specific role.

4.2.2 uBuntu as an underlying constitutional value

After the inclusion of ubuntu in the Interim Constitution, the first reference to ubuntu in South African jurisprudence was in S v Makwanyane, which deals with the constitutionality of the death penalty.171 Himonga et al.172 argue that the developments of ubuntu in later jurisprudence can be traced back to the remarks in this judgment and therefore it is the best place to start the discussion. The Court referred to the post-amble of the Interim Constitution and the idea that the Interim Constitution should be interpreted according to the specific historical background of South Africa and in line with the ideals of ubuntu.173 Himonga et al.174 further contend that the remarks by Justices Madala and Mokgoro indicate that they view ubuntu as a constitutional value that should be used in the interpretation of the Bill of Rights. Specifically, Justice Madala175 stated that ubuntu "permeates the [Interim] Constitution generally and more particularly chap 3, which embodies the entrenched fundamental human rights." Justice Mokgoro176 held that under the new constitutional order legislative interpretation would be "radically" different from that under apartheid. She argued that post-apartheid legislative interpretation must be value-based and she envisaged that ubuntu could play an important role in this task:

In interpreting the Bill of Fundamental Rights and Freedoms, as already mentioned, an all-inclusive value system, or common values in South Africa, can form a basis upon which to develop a South African human rights jurisprudence. Although South Africans have a history of deep divisions characterised by strife and conflict, one shared value and ideal that runs like a golden thread across cultural lines is the value of ubuntu – a notion now coming to be generally articulated in this country.177

Justice Mokgoro thus regards ubuntu as a shared value that could be used to develop a new legal culture that incorporates a normative approach to constitutional interpretation.178 In other words, ubuntu as an underlying

constitutional value should be used as an open norm in constitutional interpretation with the object of promoting justice.179

Although ubuntu is not mentioned in the final Constitution, it has remained part of South Africa's constitutional jurisprudence, as is evidenced by a number of Constitutional Court judgments.180 For the purposes of this section, it is necessary to mention Port Elizabeth Municipality v Various Occupiers, in which Justice Sachs confirmed the status of ubuntu as an underlying value in the final Constitution.181

4.2.3 uBuntu's role in the development of the common law of contract: transformative constitutionalism

The term "transformative constitutionalism" was coined by Klare182 in his seminal article entitled "Legal Culture and Transformative Constitutionalism". Supporting Justice Mokgoro's view that a constitutional interpretation would require a value-based approach, he argued that the Constitution requires an interpretation that takes into account the relevant historical and political context of South Africa. He further argued that there is a movement away from liberalism toward a social democracy or what he calls "an 'empowered' model of democracy".183 He defined "transformative constitutionalism" as follows:

[A] long-term project of constitutional enactment, interpretation, and enforcement committed (not in isolation, of course, but in a historical context of conducive political developments) to transforming a country's political and social institutions and power relationships in a democratic, participatory, and egalitarian direction. Transformative constitutionalism connotes an enterprise of inducing large-scale social change through nonviolent political processes grounded in law.184

He further argued that such an interpretation would not undermine the principles of legal constraint and the rule of law as they would be

practices of constitutional interpretation that acknowledge and fulfil the duty of interpretive fidelity and yet that are engaged with and committed to

'establish[ing] a society based on democratic values, social justice and fundamental human rights,' a society that will '[i]mprove the quality of life of all citizens and free the potential of each person.185

Although he accepted that the Constitution aims to protect individual rights and freedoms, he contended that it is also committed to egalitarian social transformation in the private sphere.186 Therefore, the Constitution should be interpreted in such a way as to achieve egalitarian social transformation in the private sphere,187 and "to lay the legal foundations of a just, democratic, and egalitarian social order".188 There are various sections in the Constitution that would support such an interpretation. Specifically, section 1(a) provides that the Republic of South Africa is founded on the values of "human dignity, the achievement of equality and the advancement of human rights and freedoms".189 Klare190 argued that the use of the word "achievement" read with the right to equality as "the full and equal enjoyment of all rights and freedoms"191 indicates a commitment to substantive equality. Klare further accepted that such a normative interpretation would be informed by the concept of ubuntu as part of the underlying value system of the Constitution.192

In the context of contract law, Hawthorne193 refers to section 39(2) of the Constitution, which obliges the court to promote the spirit, purport and objects of the Bill of Rights when developing the common law. She also refers to section 173 of the Constitution, which grants the court an inherent power to develop the common law by taking into account the interests of justice.194 She argues that these provisions require a purposive interpretation that incorporates the interpretation of open norms like good faith.195 As such, she argues that good faith should be used as a tool to promote substantive equality between contractual parties in line with the values and aims of the Constitution.196 In this sense, substantive equality would not refer to formal

equality before the law only (as promoted by the classical liberal model of contract law and the rule of law), but that the law should also take into account the inequalities in the social and economic position of the parties.197 Therefore, she argues for a movement away from the classical model of contract law that is based on formal equality, does not take account of substantive fairness between the parties, and thus limits the role of good faith, towards a normative and value-based approach that would allow the courts to take cognisance of the social and economic reality in which the contract is concluded and to interfere with the contractual relationship in order to achieve substantive equality and justice between the parties.198

After the status of ubuntu as an underlying constitutional value of the final Constitution was confirmed in Port Elizabeth Municipality v Various Occupiers,199 Davis and Klare200 argued that section 39(2) obliges the courts to "re-imagine all law in the spirit of ubuntu". Bennett201 further explains that ubuntu has been and can be used by the courts to "modify the effect of strict application of the law". It is therefore unsurprising that the Constitutional Court in Everfresh Market Virginia v Shoprite Checkers stressed that the common law of contract, and especially the concept of good faith, must be informed by the underlying constitutional value of ubuntu.202 Although the Court failed to make any mention of ubuntu in Botha v Rich, it followed a similar approach. The Court referred to the transformative ideals of the Constitution203 and the constitutional values of human dignity and equality204 to develop the principle of good faith into a flexible principle that can be used to temper the rigid application of contract law rules and doctrines where it would lead to injustice.205 This is similar to the role of good faith in Roman law, which was discussed above. It was shown how the introduction of good faith into Roman law caused subsequent developments in the existing ius civile. The urban praetor acquired the right to correct or supplement the formal and rigid ius civile in accordance with what was considered fair and

equitable. In other words, good faith was used as an open norm when interpreting and applying the the ius civile. In Botha v Rich the Court specifically referred to this historical role of good faith:

To the extent that the rigid application of the principle of reciprocity may in particular circumstances lead to injustice, our law of contract, based as it is on the principle of good faith, contains the necessary flexibility to ensure fairness. In Tuckers Land Development Corporation it was pointed out that the concepts of justice, reasonableness and fairness historically constituted good faith in contract.206

Therefore, the Court relied on good faith to incorporate a normative and more flexible approach into the law of contract and did so in a way that aligned with the transformative ideals of the Constitution. For this reason it is unfortunate that the Court did not refer to the constitutional value of ubuntu. Nevertheless, in the next article I argue that the Court was doing nothing less than developing the principle of good faith in accordance with the underlying constitutional value of ubuntu.207

5 Conclusion

In this article it has been shown how the Romans realised that their existing formal and rigid laws could not address the changing legal needs of the community due to the influx of foreigners (especially foreign traders) into Rome. In reaction to the changing commercial environment, they introduced flexible legal procedures and a more normative approach to these legal transactions to achieve fairness and justice between the contracting parties. This worked so well that the new flexible procedures and normative principles were transferred to the existing formalistic law. Gradually, the existing ius civile became subject to a more normative interpretation in the interests of justice through the use of the open norm of good faith. It has been argued that in a similar way, ubuntu can be used to address legal pluralism in the South African legal system, and its application as an underlying constitutional value could result in the better use of the open norm of good faith in the common law of contract to address contractual unfairness. In the next article, two further themes are explored to construct an even more contextual legal history of good faith in Roman contract law and then to compare this history with the emerging role of ubuntu in the South African common law of contract.

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List of Abbreviations