Online ISSN 1727-3781

Legal Pluralism, uBuntu and the Use of Open Norms in the South African Common Law of Contract

HM du Plessis*

PER / PELJ -Pioneer in peer-reviewed, open access online law publications

Author Hanri du Plessis

Affiliation University of South Africa

Email dplesh@unisa.ac.za

Date Submission 13 June 2019

Date Revised 28 August 2019

Date Accepted 29 August 2019

Date published 23 October 2019

Editor Prof C Rautenbach

How to cite this article

Du Plessis H "Legal Pluralism, uBuntu and the Use of Open Norms in the South African Common Law of Contract" PER / PELJ 2019(22) - DOI http://dx.doi.org/10.17159/1727-3781/2019/v22i0a6456

Copyright

DOI http://dx.doi.org/10.17159/1727-3781/2019/v22i0a6456

Abstract

In this article, a comparison is drawn between the role of good faith in the development of the Roman law of contract and the emerging role of ubuntu in the South African common law of contract. Firstly, it is 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 is 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 to address contractual unfairness.

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

 Hanri du Plessis. LLB LLM (UP) LLD (UNISA). Senior Lecturer, Department of Private Law, School of Law, University of South Africa (Unisa). E-mail: dplesh@unisa.ac.za. The article forms part of research undertaken during a period of research and development leave granted by Unisa in 2019. Parts of this article are also based on research forming part my unpublished thesis (Du Plessis Good Faith and Ubuntu in South African Contract Law). The research for my thesis was funded by a grant from Unisa's Academic Qualification Improvement Programme from 2014 to 2017. Any opinions or conclusions expressed in this article are my own and Unisa does not accept any liability for them. Similarly, all errors remain my own.

1 Gordley Philosophical Origins of Contract 9.

2 Tuori Ancient Roman Lawyers.

3 Tuori Ancient Roman Lawyers 181. Also see Van der Walt 2006 Fundamina 29.

4 Tuori Ancient Roman Lawyers 181.

5 Tuori Ancient Roman Lawyers 193.

6 For example, see the discussion dealing with the Law of the Twelve Tables in n 52 below.

7 For more detail on this aspect, see Bennett Customary Law 2-5.

8 Gade 2011 S Afr J Philos 306, who states that the earliest written text he could find dates from 1846.

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?

9 Pieterse "'Traditional' African Jurisprudence" 440-441; Bennett Customary Law 5-7.

10 Tuori Ancient Roman Lawyers 191-192.

11 Tuori Ancient Roman Lawyers 193.

12 Van der Walt 2006 Fundamina 30.

13 Van der Walt 2006 Fundamina 32.

14 Van der Walt 2006 Fundamina 33.

15 Van der Walt 2006 Fundamina 33.

16 Van der Walt 2006 Fundamina 36.

17 Van der Walt 2006 Fundamina 36.

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.

18 As quoted by Schulz Principles of Roman Law 4.

19 Barkhuizen v Napier 2007 5 SA 323 (CC) (hereafter Barkhuizen v Napier).

20 Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 1 SA 256 (CC) (hereafter Everfresh Market Virginia v Shoprite Checkers).

21 Botha v Rich 2014 4 SA 124 (CC) (hereafter Botha v Rich).

22 Barkhuizen v Napier para 51.

23 Lubbe 1990 Stell LR 20.

24 Barkhuizen v Napier para 80.

25 Barkhuizen v Napier para 51.

26 Everfresh Market Virginia v Shoprite Checkers para 77 (majority) and para 22 (minority). See also Barkhuizen v Napier para 82.

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:

27 Everfresh Market Virginia v Shoprite Checkers para 71 (majority) and para 23 (minority).

28 Everfresh Market Virginia v Shoprite Checkers para 23.

29 Also see Louw 2013 PELJ 66. This shift in the legal convictions of the community is also reflected in the Consumer Protection Act 68 of 2008, which has introduced measures to promote contractual fairness in contracts governed by the Act (especially s 48). The scope and application of the Act falls outside the scope of this article.

30 As re-iterated by the Supreme Court of Appeal on numerous occasions: Potgieter v Potgieter 2012 1 SA 637 (SCA) paras 32-34; Maphango v Aengus Lifestyle Properties (Pty) Ltd 2011 5 SA 19 (SCA) para 23-24; African Dawn Property Finance 2 (Pty) Ltd v Dreams Travel and Tours CC 2011 3 SA 511 (SCA) para 28; South African Forestry Co Ltd v York Timbers Ltd 2005 3 SA 323 (SCA) paras 26-31; Afrox Healthcare Bpk v Strydom 2002 6 SA 21 (SCA) para 32; Brisley v Drotsky 2002 4 SA 1 (SCA) para 22. The Constitutional Court has questioned the limited role of good faith obiter (Everfresh Market Virginia v Shoprite Checkers para 77 (majority) and para 22 (minority); Barkhuizen v Napier para 82.

31 Botha v Rich para 45 read with para 51.

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

32 See Du Plessis 2019 PELJ 14-19.

33 Cornell and Muvangua "Introduction" 24.

34 Contra the approach of the Supreme Court of Appeal in the recent case of Mohamed's Leisure Holdings (Pty) Ltd v Southern Sun Hotel Interests (Pty) Ltd 2018 2 SA 314 (SCA).

35 Mousourakis Historical Context of Roman Law 181.

36 Schermaier "Bona Fides in Roman Contract Law" 65.

37 Erasmus 1989 SALJ 677 quoting Beinart 1971 Acta Juridica 140.

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:

  • (a) addressing legal pluralism;
  • (b) using open norms38 to supplement and correct the existing law;
  • (c) harmonising values from different legal systems; and
  • (d) concretising open norms intended to realise contractual justice.
  • 38 Open norms are rules or standards that have no fixed or restricted meaning, can apply to various factual situations and enable value judgments (Bennett, Munro and Jacobs Ubuntu 30; Hawthorne 2013 Fundamina 300-301; Bhana and Pieterse 2005 SALJ 868). Bennett, Munro and Jacobs Ubuntu 61 also use the term "metanorm", which they define as a term "of a higher order". Such norms "do not apply directly to the facts of cases" but rather "regulate the application of lower order rules to bring about more equitable results."

    39 Du Plessis 2019 PELJ.

    40 These sections consist mostly of the traditional account of the development of bona fides as found in standard Roman law sources. As a detailed study of Roman law no longer forms part of the law curriculum in South Africa, it was considered necessary to provide a detailed overview of the development of bona fides in both articles.

    41 Pieterse "'Traditional' African Jurisprudence" 439.

    42 Himonga "Exploring the Concept of Ubuntu" 2. Also see Bennett, Munro and Jacobs Ubuntu 31.

    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.

    43 Schermaier and Dedek "Bona Fides" 1155; Schermaier "Bona Fides in Roman Contract Law" 68.

    44 Schermaier and Dedek "Bona Fides" 1155; Du Plessis Borkowski's Roman Law 266; De Zulueta Institutes of Gaius Part II 167.

    45 The Republican period was from 510 BC to 27 BC (Du Plessis Borkowski's Roman Law xii).

    46 Van Warmelo Principles of Roman Civil Law para 11; Watson Law of the Ancient Romans 3. This period (753 BC to 510 BC) is commonly referred to as the Monarchy or the period of the kings (Du Plessis Borkowski's Roman Law xii). The founding date of Rome is traditionally cited as 753 BC (Van Warmelo Principles of Roman Civil Law para 6).

    47 Van Warmelo Principles of Roman Civil Law para 19. Roman society was hierarchical in nature. The patricians (partricii) were the Roman aristocracy who possessed the most power and riches and constituted the minority of the population. In the early republic, the most important positions were filled by persons from the patrician class. The plebeians (plebeii) were the underprivileged and poor masses who were subject to the political and economic power exerted by the patricians. See Van Warmelo Principles of Roman Civil Law para 19.

    48 D 1 2 2 3 Pomponius, Manual, Sole Book states that the law at the beginning of the Roman republic worked "with customs of a sort rather than with legislation" (quoted from Watson Digest of Justinian). Also see Van Warmelo Principles of Roman Civil Law para 9.

    49 D 1 2 2 3 Pomponius, Manual, Sole Book: "Then, after the ejection of the kings, it was established that there be two consuls in whom a statute laid down that the supreme

    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

    authority should be vested" (quoted from Watson Digest of Justinian). Consuls (consules) were initially known as preators (praetores). Also see Van Warmelo Principles of Roman Civil Law para 11.

    50 Mousourakis Historical Context of Roman Law 118-119.

    51 Mousourakis Historical Context of Roman Law 118-119; Van Warmelo Principles of Roman Civil Law para 26.

    52 A history of the introduction of the Law of the Twelve Tables is given in D 1 2 2 4, Pomponius, Manual, Sole Book: "… it was decided that there be appointed, on the authority of the people, a commission of ten men by whom were to be studied the laws of the Greek city states and by whom their own city was to be endowed with laws. They wrote out the laws in full on ivory tablets and put the tablets together in front of the rostra, to make the laws all the more open to inspection. They were given during that year sovereign rights in the civitas, to enable them to correct the laws, if there should be a need for that, and to interpret them without liability to any appeal such as lay from the rest of the magistracy. They themselves discovered a deficiency in that first batch of laws, and accordingly, the added two tablets to the original set. It was from this addition that the laws of the Twelve Tables got their name" (quoted from Watson Digest of Justinian). Also see Kaser Roman Private Law 15; Van Warmelo Principles of Roman Civil Law paras 27-29. It is estimated that the Law of the Twelve Tables was introduced between 451 and 449 BC (Van Warmelo Principles of Roman Civil Law para 27). No original copy has survived but a modern English compilation can be found in Johnson et al. Ancient Roman Statutes doc 8.

    53 Mousourakis Historical Context of Roman Law 121. The first three tables dealt with procedural issues, which indicates that procedure was important to the Romans (Du Plessis Borkowski's Roman Law 31).

    54 Mousourakis Historical Context of Roman Law 121; Van Warmelo Principles of Roman Civil Law para 27.

    55 D 1 2 2 6 Pomponius, Manual, Sole Book: "Then about the same time actions-at-law whereby people could litigate among themselves were composed out of these statutes [the laws of the Twelve Tables]. To prevent the citizenry from initiating litigation any old how, the lawmakers' will was that the actions-at-law be in fixed and solemn terms. This branch of-law has the name legis actiones, that is, statutory actions-at-law. And so these three branches of law came into being at almost the same time: once the statute law of the Twelve Tables was passed, the jus civile started to emerge from them, and legis actiones were put together from the same source. In relation to all these statutes, however, knowledge of their authoritative interpretation and conduct of the actions at law belonged to the College of Priests, one of whom was appointed each year to preside over private matters" (quoted from Watson Digest of Justinian). Also see Kaser Roman Private Law 18, 31; Van Warmelo Principles of Roman Civil Law para 9.

    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:

    56 Kaser Roman Private Law 43; Van Warmelo Principles of Roman Civil Law paras 10, 24.

    57 Gaius Inst 4 11 (quoted from De Zulueta Institutes of Gaius Part I). Also see Gaius Inst 4 30, where he states that "the excessive technicality of the early makers of the law was carried so far that a party who made the slightest mistake lost his case" (quoted from De Zulueta Institutes of Gaius Part I).

    58 Kaser Roman Private Law 43, 392; Van Warmelo Principles of Roman Civil Law para 717. For more detail on the legis actio procedure see Van Warmelo Oorsprong van die Romeinse Reg para 84ff.

    59 In Gaius Inst 1 1 it is said that the "law which a people establishes for itself is peculiar to it, and is called ius ciuile (civil law) as being the special law of that ciuitas (State)" (quoted from De Zulueta Institutes of Gaius Part I); cf D 1 1 9, Gaius, Institutes, Book 1, where it is stated that "law which each nation has set up as a law unto itself is special to that particular civitas and is called jus civile, civil law, as being that which is proper to the particular civil society (civitas)" (quoted from Watson Digest of Justinian). Also see Kaser Roman Private Law 19, 392; De Zulueta Institutes of Gaius Part II 12. However, there were exceptions to this rule, which are discussed in n 73 below.

    60 Mousourakis Historical Context of Roman Law 84; Schiller Roman Law Mechanisms 402.

    61 D 1 2 2 27, Pomponius, Manual, Sole Book: "And when the consuls were being called away to the wars with neighbouring peoples, and there was no one in the civitas empowered to attend to legal business in the city, what was done was that a praetor also was created, called the urban praetor on the ground that he exercised jurisdiction within the city" (quoted from Watson Digest of Justinian). Also see Van Warmelo

    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

    Principles of Roman Civil Law para 14; Schiller Roman Law Mechanisms 403. For a detailed discussion on the creation of the praetorship see Brennan Praetorship ch 3.

    62 Van Warmelo Principles of Roman Civil Law para 30; Schiller Roman Law Mechanisms 411.

    63 Van Warmelo Principles of Roman Civil Law para 15.

    64 Van Warmelo Principles of Roman Civil Law para 30; De Zulueta Institutes of Gaius Part II 17.

    65 Gaius Inst 1 6, where it is stated that "[t]he right of issuing edicts is possessed by magistrates of the Roman people" (quoted from De Zulueta Institutes of Gaius Part I).

    66 D 1 2 2 10, Pomponius, Manual, Sole Book: "At the same time, the magistrates also were settling matters of legal right, and in order to let the citizens know and allow for the jurisdiction which each magistrate would be exercising over any given matter, they took to publishing edicts. These edicts, in the case of the praetors, constituted the jus honorarium (honorary law): 'honorary' is the term used, because the law in question had come from the high honor of praetorian office" (quoted from Watson Digest of Justinian). Also see Van Warmelo Principles of Roman Civil Law para 31; De Zulueta Institutes of Gaius Part II 18.

    67 Kaser Roman Private Law 20.

    68 Van Warmelo Principles of Roman Civil Law para 30.

    69 Schermaier "Bona Fides in Roman Contract Law" 72; Van Warmelo Principles of Roman Civil Law para 31.

    70 Du Plessis Borkowski's Roman Law 256; Kaser Roman Private Law 174.

    71 The term peregrini refers to freemen (as opposed to slaves) who were not Roman citizens (Roby Roman Private Law Vol 1 19).

    72 D 1 2 2 28, Pomponius, Manual, Sole Book: "Some years thereafter that single praetor became insufficient, because a great crowd of foreigners had come into the civitas as well, and so another praetor was established, who got the name peregrine praetor, because he mainly exercised jurisdiction as between foreigners (peregrini)" (quoted from Watson Digest of Justinian). Also see Van Warmelo Principles of Roman Civil Law para 14; De Zulueta Institutes of Gaius Part II 12.

    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

    73 Du Plessis Borkowski's Roman Law 34; Schermaier "Bona Fides in Roman Contract Law" 77; Kaser Roman Private Law 32. There were exceptions to this rule. For example, where a person was granted commercium (ie the capacity to conclude certain Roman transactions) or conubium (the capacity to contract a marriage which was valid under the ius civile) (Kaser Roman Private Law 31). As a further example, a fiction of Roman citizenship could be attributed to a foreigner, specifically in the case of the actio furti (action for theft) and the actio legis Aquiliae (action for wrongful damage) (Gaius Inst 4 37; Kaser Roman Private Law 33).

    74 Mousourakis Historical Context of Roman Law 186.

    75 Van Warmelo Principles of Roman Civil Law para 14; De Zulueta Institutes of Gaius Part II 17. Although most sources cite 242 BC as the year the peregrine praetor was introduced, this remains a contentious issue (see Brennan Praetorship 85-89).

    76 D 1 2 2 28, Pomponius, Manual, Sole Book (quoted in n 72 above). Also see Du Plessis Borkowski's Roman Law 33; Van Warmelo Principles of Roman Civil Law para 14; Schiller Roman Law Mechanisms 403. The exact jurisdiction of the peregrine praetor is uncertain (Watson Law of the Ancient Romans 23-24). First, there is a difference of opinion whether the jurisdictions of the two praetors were based on the status of the parties or convenience (see Bablitz Actors and Audience 206 n 4, 210 n 71; Brennan Praetorship 85-89, 461-462; Gilbert 1939 Res Judicatae 50-58). Secondly, if the first view is preferred there is a difference of opinion whether the peregrine praetor had jurisdiction over disputes between foreigners as well as disputes between Roman citizens and foreigners from the start. Daube argues that initially the peregrine praetor had jurisdiction over disputes between foreigners only, which jurisdiction was later expanded to include disputes between foreigners and citizens (Daube 1951 Journal of Roman Studies 66-70 supported by Watson 1962 Rev Int'le Droits Ant 431 n 2). Despite Daube's argument, it is generally accepted that the peregrine praetor's jurisdiction included disputes between foreigners as well as disputes between Roman citizens and foreigners from the start (see Brennan Praetorship 133-134; and Schiller Roman Law Mechanisms 403 for a summary of the criticisms raised against Daube's view).

    77 Du Plessis Borkowski's Roman Law 34.

    78 Du Plessis Borkowski's Roman Law 72; Mousourakis Historical Context of Roman Law 87-88, 198.

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

    79 Powell 1956 CLP 19. Also see Du Plessis Borkowski's Roman Law 72; Schermaier "Bona Fides in Roman Contract Law" 73.

    80 Powell 1956 CLP 19.

    81 The introduction date of the formulary procedure is uncertain (Nicholas Introduction to Roman Law 20). However, Birks 1969 Irish Jurist 357 proposes that the formulary procedure predates the introduction of the peregrine praetor in 242 BC (see further n 82 below).

    82 Du Plessis Borkowski's Roman Law 34; Kaser Roman Private Law 19, 395; Van Warmelo Principles of Roman Civil Law para 726; De Zulueta Institutes of Gaius Part II 252-253. Birks 1969 Irish Jurist 357 proposes that the formulary procedure was developed by the urban praetor. Again, this is a contentious issue (see Brennan Praetorship 134-135; Schiller Roman Law Mechanisms 405).

    83 Nicholas Introduction to Roman Law 20. See Kaser Roman Private Law 401ff for a discussion on how the formulary procedure worked. See further Schulz Roman Legal Science 50-51 on the flexibility of the formulary procedure.

    84 Van Warmelo Oorsprong van die Romeinse Reg para 92.

    85 Du Plessis Borkowski's Roman Law 34; Van Warmelo Principles of Roman Civil Law para 727. For a detailed discussion of how the formulary procedure worked in practice see Van Warmelo Principles of Roman Civil Law para 728ff.

    86 Du Plessis Borkowski's Roman Law 34; Van Warmelo Principles of Roman Civil Law para 727.

    87 Mousourakis Historical Context of Roman Law 185, 199.

    88 Schermaier "Bona Fides in Roman Contract Law" 74; Schulz Roman Legal Science 50.

    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

    89 D 1 1 7 1, Papinian, Definitions, Book 2: "Praetorian law (jus praetorium) is that which in the public interest the praetors have introduced in aid or supplementation or correction of the jus civile. This is also called honorary law (jus honorarium), being so named for the high office (honos) of the praetors" (quoted from Watson Digest of Justinian); D 1 2 2 10, Pomponius, Manual, Sole Book (quoted in n 66 above). See further Mousourakis Historical Context of Roman Law 187. For a contrary view see Watson Law Making 64ff, who argues that the ius honorarium mainly derived from the urban praetor's edict.

    90 Berger Encyclopedic Dictionary of Roman Law 528 sv "Ius gentium".

    91 Mousourakis Historical Context of Roman Law 186. Also see Kaser Roman Private Law 32; Van Warmelo Principles of Roman Civil Law paras 25, 82.

    92 There is uncertainty as to when the bona fide iudiciae emerged (see a summary of the various arguments in Schermaier "Bona Fides in Roman Contract Law" 71-72).

    93 Schermaier and Dedek "Bona Fides" 1155; Kaser Roman Private Law 19; De Zulueta Institutes of Gaius Part II 253, 167. This is a departure from Schermaier's earlier view (see Schermaier "Bona Fides in Roman Contract Law" 77). Other scholars argue that the bonae fidei iudiciae is the work of the urban praetor (Watson 1984 LHR 10ff; Schiller Roman Law Mechanisms 422). This remains a contentious issue (Schiller Roman Law Mechanisms 527-530). The answer to this question is not vital to the arguments contained in this article as it is generally accepted that the development of the ius honorarium was in part due to the expansion of Rome, the influx of foreigners into the city and the subsequent increase in foreign trade (Mousourakis Historical Context of Roman Law 181; Van Warmelo Principles of Roman Civil Law para 25).

    94 Gaius Inst 3 135: "Obligations are created by consent in sale, hire, partnership, and mandate" (quoted from De Zulueta Institutes of Gaius Part I); cf Just Inst 3 22: "Consensual obligations arise in sales (emptio venditio), letting and hirings (locatio conductio), partnerships (societas) and mandates (mandata)" (quoted from Thomas Institutes of Justinian).

    95 Gaius Inst 3 136: "The reason why we say that in these cases the obligations are contracted by consent is that no formality whether of words or writing is required, but it is enough that the persons dealing have consented" (quoted from De Zulueta Institutes of Gaius Part I). Also see Van Warmelo Principles of Roman Civil Law para 441.

    96 Du Plessis Borkowski's Roman Law 263; Kaser Roman Private Law 174; Van Warmelo Principles of Roman Civil Law para 441.

    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

    97 Mousourakis Historical Context of Roman Law 21; Schermaier "Bona Fides in Roman Contract Law" 77; Van Warmelo Principles of Roman Civil Law para 441.

    98 Gaius Inst 4 61 (quoted from De Zulueta Institutes of Gaius Part I).

    99 Berger Encyclopedic Dictionary of Roman Law 374 sv "Bona Fides".

    100 Gaius Inst 3 137: "Further, in these contracts [consensual contracts] the parties are reciprocally liable for what each is bound in fairness and equity to perform for the other…" (quoted from De Zulueta Institutes of Gaius Part I); D 16 3 31pr where it is stated that "[t]he good faith that is required in contracts calls for level dealing in the highest degree" (quoted from Watson Digest of Justinian). See further Földi 2014 Fundamina 318 n 37; Van Warmelo Principles of Roman Civil Law para 394.

    101 See the discussion in para 4.1 below.

    102 Bekker, Rautenbach and Tshivhase "Nature of African Customary Law" 19.

    103 Bennett Customary Law 35 n 2.

    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

    104 Rautenbach "Phenomenon of Legal Pluralism" 12 n 52. This is the preferred term although the term "indigenous law" has also been used (Bennett Customary Law 34 n 2).

    105 Bekker, Rautenbach and Tshivhase "Nature of African Customary Law" 19.

    106 Bennett 2011 PELJ 30 referring to s 1(1) of the current Law of Evidence Amendment Act 45 of 1988 and s 11(1) of the partly repealed Black Administration Act 38 of 1927. Also see Thomas 2008 Fundamina 141, referring to older statutes in this respect.

    107 Bekker, Rautenbach and Tshivhase "Nature of African Customary Law" 19.

    108 Bennett 2011 PELJ 30. Also see Bennett, Munro and Jacobs Ubuntu 5.

    109 Keep and Midgley "Emerging Role of Ubuntu-Botho" 29. Also see Van der Walt 2006 Fundamina 17-29; Klare 1998 SAJHR 168-172.

    110 Sections 39(3) and 211(3) of the Constitution; Gumede v The President of the Republic of South Africa 2009 3 SA 152 (CC) para 22, in which the Court confirmed that the customary law "lives side by side with the common law and legislation".

    111 Rautenbach "Phenomenon of Legal Pluralism" 13.

    112 Keep and Midgley "Emerging Role of Ubuntu-Botho" 48 as supported by Himonga, Taylor and Pope 2013 PELJ 370.

    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

    113 Keep and Midgley "Emerging Role of Ubuntu-Botho" 48 as supported by Himonga, Taylor and Pope 2013 PELJ 370; Rautenbach "Exploring the Contribution of Ubuntu" 309. Also see the Preamble of the Constitution, where it is stated that "South Africa belongs to all who live in it, united in our diversity". Also see Bennett, Munro and Jacobs Ubuntu 1.

    114 Zimmerman "Good Faith and Equity" 551, referring to the famous quote by Sir Jessel MR in the English case of Printing and Numerical Registering Company v Sampson 1875 LR 19 Eq 462 465: "[I]f there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by Courts of justice".

    115 The South African Supreme Court of Appeal has also referred with approval to the quote in n 114 above (see eg Sasfin (Pty) Ltd v Beukes 1989 1 SA 1 (A) 9).

    116 Hutchison "Nature and Basis of Contract" 24; Bhana and Pieterse 2005 SALJ 867.

    117 Hutchison "Nature and Basis of Contract" 24; Bhana and Pieterse 2005 SALJ 867; Zimmerman Law of Obligations 576-577.

    118 Adams and Brownsword Key Issues in Contract as quoted by Hawthorne 2012 THRHR 348 n 11.

    119 Hutchison "Nature and Basis of Contract" 24; Hawthorne 2006 Fundamina 76; Zimmerman Law of Obligations 577.

    120 Thomas 2008 Fundamina 137.

    121 Hutchison "Nature and Basis of Contract" 23-24; Bhana and Pieterse 2005 SALJ 867.

    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

    122 Hawthorne 2008 SAPL 79.

    123 Hawthorne 1995 THRHR 166.

    124 Hawthorne 1995 THRHR 165-166.

    125 Hutchison "Nature and Basis of Contract" 24-25; Hawthorne 2006 Fundamina 76; Zimmerman Law of Obligations 577.

    126 Bhana and Pieterse 2005 SALJ 867.

    127 Bhana and Pieterse 2005 SALJ 867. See further Hawthorne 2006 Fundamina 76.

    128 Cf the discussion at n 30 above.

    129 Zimmerman "Good Faith and Equity" 575.

    130 Hawthorne 2008 SAPL 80

    131 Hawthorne 2008 SAPL 80.

    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

    132 Louw 2013 PELJ 47 speaks of "contracts as [a] private law mechanism for the ordering of our social and economic relations". See further Davis and Klare 2010 SAJHR 411.

    133 Hawthorne 2006 Fundamina 75-79 as supported by Louw 2013 PELJ 58. See also Davis and Klare 2010 SAJHR 411.

    134 Cf the discussion at n 28 above.

    135 Louw 2013 PELJ 47.

    136 Keep and Midgley "Emerging Role of Ubuntu-Botho" 30. Also see Louw 2013 PELJ 47.

    137 Du Plessis Barkowski's Roman Law 34.

    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,

    138 Cf the discussion at n 69 above.

    139 Du Plessis Barkowski's Roman Law 34; Van Warmelo Principles of Roman Civil Law para 726; De Zulueta Institutes of Gaius Part II 253.

    140 The exact date of the lex Aebutia is uncertain (Schermaier "Bona Fides in Roman Contract Law" 72 n 72; Schiller Roman Law Mechanisms 405; De Zulueta Institutes of Gaius Part II 250-251).

    141 Du Plessis Barkowski's Roman Law 35; Mousourakis Historical Context of Roman Law 199; Van Warmelo Principles of Roman Civil Law para 726. As stated by Gaius in Inst 4 30: "But all these legis actiones gradually became unpopular. For the excessive technicality of the early makers of the law was carried so far that a party who made the slightest mistake lost his case. Consequently by the L. Aebutia and the two Ll. Iuliae they were abolished, and litigation by means of adapted pleadings, that is by formula, was established" (quoted from De Zulueta Institutes of Gaius Para I). Van Warmelo Oorsprong van die Romeinse Reg para 92 and Birks 1969 Irish Jurist 357 argue that the formulary procedure was already used in cases between Roman citizens prior to the enactment of the lex Aebutia. Also see Schiller Roman Law Mechanisms 406 for a summary of the different arguments regarding the role of the lex Aebutia and Kaser Roman Private Law 395 for a different theory in respect thereof.

    142 Cf the discussion at n 67 above.

    143 Van Warmelo Principles of Roman Civil Law para 727; De Zulueta Institutes of Gaius Part II 18-19. See also the discussion of Schiller Roman Law Mechanisms 424-425 on the nature of the ius honorarium of the urban praetor.

    144 Van Warmelo Principles of Roman Civil Law para 33.

    145 Kaser Roman Private Law 19; Van Warmelo Principles of Roman Civil Law paras 33, 731; De Zulueta Institutes of Gaius Part II 253.

    146 Mousourakis Historical Context of Roman Law 199; Van Warmelo Principles of Roman Civil Law para 33.

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

    147 Van Warmelo Principles of Roman Civil Law para 33.

    148 For further examples see Van Warmelo Principles of Roman Civil Law paras 731-732; Schiller Roman Law Mechanisms 423-427.

    149 Van Warmelo Principles of Roman Civil Law para 424. Early Roman law agreements were usually concluded by the formal legal act of stipulation (stipulatio or sponsio), which is discussed in more detail in Du Plessis 2019 PELJ 12-13.

    150 Watson Law of the Ancient Romans 60.

    151 Zimmerman Law of Obligations 663-664; Watson Law of the Ancient Romans 60. For a detailed discussion of the introduction and development of the exceptio doli see Zimmerman Law of Obligations 663ff; Van Warmelo Principles of Roman Civil Law paras 698-704.

    152 Zimmerman Law of Obligations 665.

    153 Zimmerman Law of Obligations 667. Also see Kaser Roman Private Law 176.

    154 Gaius Inst 4 115-116a (quoted from De Zulueta Institutes of Gaius Part 1).

    155 Cf the discussion at n 86 above.

    156 Kaser Roman Private Law 19; Van Warmelo Principles of Roman Civil Law para 34.

    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

    157 Van Warmelo Principles of Roman Civil Law para 33.

    158 Van Warmelo Principles of Roman Civil Law para 34.

    159 Van Warmelo Principles of Roman Civil Law para 34. See also Kaser Roman Private Law 20.

    160 Van Warmelo Principles of Roman Civil Law para 34.

    161 Gaius Inst 4 30: "But all these legis actiones gradually became unpopular. For the excessive technicality of the early makers of the law was carried so far that a party who made the slightest mistake lost his case. Consequently by the L. Aebutia and the two Ll. Iuliae they were abolished, and litigation by means of adapted pleadings, that is by formulae, was established" (quoted from De Zulueta Institutes of Gaius Part 1).

    162 Gaius Inst 4 30 (quoted in n 161 above). Also see Du Plessis Barkowski's Roman Law 72; Kaser Roman Private Law 396; Van Warmelo Principles of Roman Civil Law para 726.

    163 The exceptions were cases falling under the jurisdiction of the centumviral court and cases involving damnum infectum (a threat of damage to another's property). Gaius Inst 4 31: "In two cases only may one proceed by legis actio, namely for damnum infectum and where the trial is to be before the centumviral court" (quoted from De Zulueta Institutes of Gaius Part 1).

    164 Du Plessis Barkowski's Roman Law 34. Schermaier "Bona Fides in Roman Contract Law" 67 n 21 explains that the bona fide actions were eventually regarded as part of the ius civile.

    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

    165 D 1 1 7 1, Papinian, Definitions, Book 2 (quoted from Watson Digest of Justinian). In addition, Marcian is quoted in D 1 1 8, Institutes, Book 1 as stating that "the jus honorarium itself is the living voice of the jus civile" (quoted from Watson Digest of Justinian). Also see Schermaier "Bona Fides in Roman Contract Law" 65.

    166 Van Warmelo Oorsprong van die Romeinse Reg para 26.

    167 See Du Plessis 2019 PELJ 6-10.

    168 Himonga, Taylor and Pope 2013 PELJ 371.

    169 My emphasis.

    170 Himonga, Taylor and Pope 2013 PELJ 394-408. Also see Bennett, Munro and Jacobs Ubuntu 1; Rautenbach 2015 AJICL 279, 294-295.

    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:

    171 S v Makwanyane 1995 3 SA 391 (CC) (hereafter S v Makwanyane).

    172 Himonga, Taylor and Pope 2013 PELJ 376.

    173 Especially S v Makwanyane para 263 (Justice Mahomed), but also paras 130-131 (Justice Chaskalson); 223-227 (Justice Langa); 237 (Justice Madala); 307-308 (Justice Mokgoro); 374 n 231 (Justice Sachs).

    174 Himonga, Taylor and Pope 2013 PELJ 377-378.

    175 S v Makwanyane para 237.

    176 S v Makwanyane para 301. Her description of legislative interpretation under apartheid coincides with that discussed earlier at n 109 above: "In that legal order, due to the sovereignty of Parliament, the supremacy of legislation and the absence of judicial review of parliamentary statutes, courts engaged in simple statutory interpretation, giving effect to the clear and unambiguous language of the legislative text, no matter how unjust the legislative provision."

    177 S v Makwanyane para 302.

    178 Keep and Midgley "Emerging Role of Ubuntu-Botho" 34.

    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

    179 Himonga, Taylor and Pope 2013 PELJ 389 referred to with approval by Rautenbach 2015 AJICL 291. Also see Rautenbach "Exploring the Contribution of Ubuntu" 294. Bennett, Munro and Jacobs Ubuntu 61 describes ubuntu as a "metanorm" which is similar in meaning to an open norm (cf the discussion in n 38 above).

    180 For a collection of extracts from some of these judgments see Cornell and Muvangua uBuntu and the Law.

    181 Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC) para 37 (hereafter Port Elizabeth Municipality v Various Occupiers).

    182 Klare 1998 SAJHR 146-188.

    183 Klare 1998 SAJHR 152.

    184 Klare 1998 SAJHR 150.

    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

    185 Klare 1998 SAJHR 150 quoting from the Preamble of the Constitution. As pointed out by Hawthorne 2008 SAPL 78, the rule of law is enshrined as one of the foundational values of the Constitution (referring to s 1(c) of the Constitution).

    186 Klare 1998 SAJHR 150-152. Cf Davis and Klare 2010 SAJHR 404; Moseneke 2009 Stell LR 4.

    187 Klare 1998 SAJHR 151.

    188 Davis and Klare 2010 SAJHR 412.

    189 S 1(a) of the Constitution.

    190 Klare 1998 SAJHR 153-154, esp n 15.

    191 Section 9(2) of the Constitution.

    192 Klare 1998 SAJHR 155.

    193 Hawthorne 2003 THRHR 117. Also see Louw 2013 PELJ 67; Hawthorne 2006 Fundamina 83-84.

    194 Hawthorne 2003 THRHR 117. Also see Davis and Klare 2010 SAJHR 425.

    195 Hawthorne 2003 THRHR 117. Also see Lubbe 2004 SALJ 407-408, 418.

    196 Hawthorne 2003 THRHR 117.

    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

    197 Hawthorne 2003 THRHR 121.

    198 Hawthorne 2003 THRHR 117, 121. Also see Hawthorne 2006 Fundamina 84. Cf the discussion on the classical model of contract law and the criticisms levied against it in the text at n 114 above.

    199 See again the discussion at n 181 above.

    200 Davis and Klare 2010 SAJHR 411.

    201 Bennett, Munro and Jacobs Ubuntu 61, 67 and 69.

    202 Everfresh Market Virginia v Shoprite Checkers para 71 (majority) and para 23 (minority) (cf the discussion in the text at n 27 above). As pointed out by Bhana and Broeders 2014 THRHR 164, although these remarks were obiter, they remain important because they were made unanimously.

    203 Botha v Rich para 28.

    204 Botha v Rich para 40.

    205 Botha v Rich para 45.

    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

    206 Botha v Rich para 45.

    207 See Du Plessis 2019 PELJ 18-19.

    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

    AJICL

    African Journal of International Comparative Law

    CLP

    Current Legal Problems

    Fundamina

    Fundamina: A Journal of Legal History

    LHR

    Law and History Review

    PELJ

    Potchefstroom Electronic Law Journal

    Rev Int'le Droits Ant

    Revue Internationale des Droits de l'Antiquité

    SAJHR

    South African Journal on Human Rights

    S Afr J Philos

    South African Journal of Philosophy

    SALJ

    South African Law Journal

    SAPL

    South African Public Law

    Stell LR

    Stellenbosch Law Review

    THRHR

    Tydskrif vir die Hedendaagse Romeins Hollandse Reg