Reflecting on the Role and Impact of the Constitutional Value of uBuntu on the Concept of Contractual Freedom and Autonomy in South Africa

Private parties have the freedom and autonomy to enter into a contract. This autonomy is deeply rooted in their dignity and personal liberties. Private individuals, in furtherance of their autonomy and freedom to enter into a contract, have certain reasonable expectations, most fundamental of which is the desire that maximum respect is given to their legitimately concluded agreement. The concept of contractual freedom and autonomy connotes the idea that private individuals (natural and juristic) have the liberty to arrange their affairs in a manner that meets their economic interest without governmental inhibition, control and/or interference. However, the operative scope and the practical manifestations of the concept of contractual freedom are circumscribed in the constitutional, statutory, legislative and other socio-cultural orders of States. This article seeks to reflect on the role and influence of the constitutional value of ubuntu on the principle of contractual freedom and autonomy, and the naturally accompanying concepts of pacta sunt servanda and sanctity of contract in South Africa. The article provides an analysis of the judicial interpretation and views on the concept of contractual freedom and autonomy relative to other competing values that underlie the Constitution of the Republic of South Africa. Furthermore, the article appraises the impact of those judicial views on international commercial agreements. The article also discusses the extent to which communitarian values such as the concept of ubuntu have been infused into South African contract law and further reflects on the implication of infusing such communitarian values in both domestic and international contracts. The article concludes with a suggestion that the introduction of traditional African values in South African contract law fundamentally alters the theoretical foundations of the principle of contractual freedom and autonomy in both domestic and international contracts.


Introduction
The principle of contractual freedom and autonomy is a libertarian doctrine The impact of a constitution on contractual relations can be a double-edged sword, in that a constitution can, on the one hand, serve as a basis upon which the concept of contractual freedom and autonomy can be concretised, but on the other hand it can operate to limit the scope of contractual freedom and autonomy (this largely depends on judicial interpretation). The Constitution of the Republic of South Africa, 1996 (hereafter "the 1996 Constitution") serves as the foundational legal framework for the activities of organs of state, state institutions and private/juristic persons in South Africa. The 1996 Constitution is an embodiment of the hopes and aspirations of the South African people.
Underlying it are important principles and values such as equality, dignity and respect for fundamental human rights. The 1996 Constitution ushered South Africa into a regime of non-racialism. 3 The Bill of Rights in the 1996 Constitution serves as the cornerstone of South African democracy and contains mandatory provisions that require government institutions as well as natural and juristic persons to uphold the rights and freedoms outlined in the Constitution. 4 The 1996 Constitution provides for the right to and respect for human dignity, 5 the right to own property and protection from the deprivation of property, 6 the equality of all persons, 7 and the right to have 3 Section 1 of the Constitution of the Republic of South Africa, 1996 (the Constitution De Vos 1997 NQHR 225-227;Cockrell 1997 MLR 529;Davis 1997 SAJHR 1;Sprigman and Osborne 1999 SAJHR 26;Malherbe 2000 NQHR 53;Langa 2001SMU L Rev 2101Du Plessis and Penfold 2006 Ann Surv S Afr L 45;Du Plessis and Penfold 2007 Ann Surv S Afr L 67;Bentele 2009 Ga J Int'l & Comp L 221. 5 Section 10 of the Constitution. 6 Section 25 of the Constitution. The horizontal application of the Bill of Rights is at variance with the traditional approach of the vertical application of human rights. 11 The vertical application of human rights mirrors the idea that states must not infringe on the fundamental rights of individuals. 12 The horizontal application of human rights further raises the issue of whether or not the fundamental rights of individuals ought to be applied directly or indirectly to private agreements, and this has been treated in a variety of ways by academics. 13 The CC in Barkhuizen v Napier 14 highlighted the difference between the horizontal and direct application of fundamental human rights. 8 Section 34 of the Constitution. Tomuschat Human Rights 309. 13 Lane 2018 EJCL 14-30;Gardbaum 2003 Mich L Rev 389-390, 398;Chirwa 2006 LDD 30-31;Pieterse 2007 SAJHR 161-162;Bhana 2013 SAJHR 351;Futch 1997NC J Int'l L & Com Reg 1010 Barkhuizen v Napier 2007 5 SA 323 (CC) (hereafter Barkhuizen). PER / PELJ 2021 (24) 6 Whereas a direct, horizontal application of fundamental rights per the decision in Barkhuizen implies that parties could, as a matter of right, invoke provisions contained in the Bill of Rights to establish a case or defend a claim, an indirect horizontal application of fundamental rights implies that a party must prove that a term of a contract violates a constitutional right and that a contract (or a provision in the contract) is contrary to public policy or illegal under the rules of common law. 15 In general, however, determining whether fundamental rights in a constitution can be applied horizontally depends on the textual provisions of the constitution. 16 The horizontal application of the Bill of Rights under the 1996 Constitution has been subject to much debate. While it used to be argued that an application of the Bill of Rights to contractual relations unleashes a high degree of uncertainty in contractual relations, the current constitutional order and predominant academic views point to the fact that the sociopolitico-economic history of South Africa requires the need for the Bill of Rights in the 1996 Constitution to be applied horizontally to contractual/commercial arrangements so as to dismantle the legacy of colonialism. 17

TE COLEMAN
The general judicial and academic consensus is that sections 8 (2)  The proper approach to the constitutional challenges to contractual terms is to determine whether the term is contrary to public policy as evidenced by constitutional values, in particular those found in the Bill of Right. 23 Public policy is determined by taking into account the values that underlie the 1996 Constitution. 24 In the view of the CC, any term in a contract that is injurious to constitutional values is contrary to public policy. 25 The CC also posited that the public policy of South Africa has been codified by the 1996 The idea that private individuals have the freedom and autonomy to determine the content of their agreements is therefore circumscribed in the public policy of South Africa, which according to the CC is informed by the constitutional value of ubuntu. In essence, a contract or provisions in a contract must not be at variance with the constitutional value of ubuntu. A contract or provisions in a contract can therefore be weighed or tested against the constitutional value of ubuntu. The concept of ubuntu is an African traditional value that is informed by the ethos of communitarianism.
The discussion in the next section provides an analysis of the nature, essence and significance of the African traditional value of ubuntu and the extent to which the concept has been introduced into many academic disciplines, including the area of contract and commercial law in South Africa.

African values
African traditional society has several values and ethics. It is trite, however, that traditional African societies are founded on the ethic of communitarianism. 29 A person in a typical African society does not live in isolation but is rather expected to effectively relate with other people in the society. 30 The actions and inactions of people are somewhat intertwined with the communal relationships with others. It has been averred that in an African society, a person realises his/her potential through relations with other people. Self-realisation is therefore deeply rooted in the communal relations of individuals. 31 This assertion stems from African maxims and 29 Metz "Virtues of African Ethics" 276-284. Also see ; Gyekye Essay on African Philosophical Thought; Ikuenobe 2010 Philos Pap 245; Gyekye "Person and Community in African Thought" 102; Molefe 2018 Politikon 217-220; Hull Equal Society 9-10; Molefe 2017 Phronimon 182; Akiode "African Philosophy" 58-61. 30 Dzobo "Image of Man in Africa" 123-135; Dickson Aspects of Religion and Life in Africa 4. 31 Metz "Virtues of African Ethics" 277-279. PER / PELJ 2021 (24) 9 proverbs that are said to encompass traditional African ethical ideas. 32 For example, it is a common saying in southern African countries that "a person is a person through other persons". 33 Again in southern Africa, the communitarian ethic and value of ubuntu is said to constitute the moral fabric of southern African countries. uBuntu underscores the need for people to promote friendliness, good neighbourliness, hospitality, generosity and compassion towards one another. 34 According to Tutu,35 [W]e say, a person is a person through other people. It is not 'I think therefore I am'. It says rather: 'I am human because I belong' I participate, I share…Harmony, friendliness, community are great goods. Social harmony is for us the summum bonum -the greatest good. Anything that subverts or undermines this sought-after good is to be avoided like the plague.

TE COLEMAN
Also in eastern and western African countries, the saying "I am because we are" is frequently used to denote the fact that a person cannot completely isolate him/herself from the operations of society. 36 Though these maxims do not in and of themselves reveal the physical interdependence of people on one another, Metz believes that they constitute an evaluative and normative "nomenclature" to understand traditional African ethics. 37 The maxims are therefore essential guidelines to individuals to develop and 32 Metz "Virtues of African Ethics" 277. 33 Tutu No Future without Forgiveness 35. 34 In S v Makwanyane 1995 3 SA 391 (CC) para 308, the Constitutional Court stated that the value of ubuntu, which metaphorically expresses itself in umuntu ugumuntu ngabantu envelops the "key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity… it denotes humanity and morality. Its spirit emphasises respect for human dignity, marking a shift from confrontation to conciliation". Also see generally Letseka "African Philosophy and  The foregoing assertion has been affirmed and intimated by several African philosophers. For example, Mentiki is of the view that "as far as Africans are concerned, the reality of the communal world takes precedence over realities of individual histories, whatever these may be." 42 The conception of the role of the individual in an African society by Senghor resembles that of Mentiki. Senghor posits that "negro-African society puts more stress on the group than individuals, more on solidarity than on the activity and needs of the individual, more on communion of persons than on their autonomy.
Ours is a community society." 43 According to Kenyatta, "nobody is an isolated individual. Or rather his uniqueness is a secondary fact about him; first and foremost he is several people's relative and several people's contemporary." 44 Gyekye describes the position taken by the foregoing scholars as a strict application and adherence to communitarianism and avers that the essence 38 Metz "Virtues of African Ethics" 277. of the position of adherence to strict communitarianism is the fact that the community and nothing else defines a person. 45 Also, to those scholars a person is not defined by other qualities or attributes such as rationality and or the ability to make informed choices. 46 Their position also means that autonomy does not inhere in man as a matter of existence but rather is an attribute acquired and granted to a person as a matter of course. 47 It is observed, however, that pro-strict communitarian values are more often than not, informed by the principles underlying African socialism. African socialism was the main ideology that informed political independence in most African countries. 48 Some scholars have also refuted the claim that traditional African society is absolutely communitarian. They aver that it may be fallacious to assert that traditional African ethics completely obviate the notion of individual autonomy or the possibility for a person to take steps to seek self-growth and development. 49 Accordingly, some African philosophers have asserted that irrespective of the communitarian ethos in traditional African society, there are instances where individuals are empowered to discover their real selves. 50 For instance, on highlighting the values of African tradition Metz admitted that African tradition sometimes recognises the role that the individual has to play to ensure his/her own development. Metz states: 51 I am not suggesting that the African tradition is devoid of more 'self-regarding' considerations. For instance, there are recurrent proverbs and counsels regarding prudence and moderation of one's desires. However, often (though 45 Gyekye "Person and Community in African Thought" 107. 46 Gyekye "Person and Community in African Thought" 105. 47 Gyekye "Person and Community in African Thought" 112. 48 Gyekye "Person and Community in African Thought" 103. For instance, Kwame Nkrumah avers, "If one seeks the socio-political ancestor of socialism, one must go to communalism… in Socialism the principles underlying communalism are given expression in modern circumstances." See Nkrumah Consciencism-philosophy and Ideology for Decolonization and Development 73. Senghor also states, "negro-African society is collectivist or, more exactly communal, because it is rather a communion of souls than an aggregate of individuals." See Senghor On African Socialism 49. 49 Metz "Overview of African Ethics" 62-66. 50 Gyekye Tradition and Modernity 48-52. 51 Metz "Virtues of African Ethics" 279. PER / PELJ 2021 (24) 12 not always) these individualist values are deemed to be instrumental worth, as means towards behaviour oriented towards communal end, or at least exemplifying virtue not only to the extent that they tend to foster community. For instance, if one did not look after oneself, then one would threaten to become a burden on others. However, one may reasonably question whether temperance, prudence and related traits are valuable only in so far as they have other-regarding dimension ...

TE COLEMAN
Metz's view points to an interesting reality that even in those situations in which individuals have the freedom to advance their self-interest, the freedom granted is a mere tool or catalyst to propel society's development (the common good of society). Hence, in a typical Africa society, personhood is not "an end in itself but rather a means to an end". The end, in this case, is the greater good of society. Also, appraising the role of a person in an African society Gyekye disagreed with pro strict-communitarian scholars.
Gyekye expresses the opinion that though African society ab initio regards human beings as communal beings and believes that the communal feature remains man's most vital value, human beings possess other qualities or attributes to which pro strict-communitarian scholars must not generally be oblivious. 52 To Gyekye, failure to recognise other innate attributes of human beings would mean an intrusion of communitarianism into other legitimate aspects of individual life that also require respect. 53 Placing communitarianism on this high pedestal, per Gyekye, has dire consequences for the innate attributes of individuals, which society also has a duty to protect. Gyekye therefore asserts that in the African society individuals have the freedom to engage in activities that promote their selfgrowth and development. Gyekye's view does not entirely disregard individual autonomy and the rights private persons may have in an African society, but cautions that inherent in personhood in an African society are other values that even African tradition itself encourages. 54 Gyekye explains 52 Gyekye "Person and Community in African Thought" 106. 53 Gyekye "Person and Community in African Thought" 106. 54 Gyekye "Person and Community in African Thought" 106. PER / PELJ 2021 (24) 13 that "the fundamental meaning of community is the sharing of an overall way of life, inspired by the notion of common good." 55 Similar views are shared by Paris, who states "no virtue is more highly praised among Africans and African Americans than that of beneficence because it exemplifies the goal of community." 56 Essentially, "the purpose of our life is community service and community belongingness." 57 The central thesis of Gyekye's worksthe basis of the existence of a person in an African society is to act in a manner that ensures the common good of the societyremains untouched. He advocates a somewhat moderate communitarianism, however, as opposed to strict communitarianism. 58 To Gyekye, regardless of the communitarian ethos in African society, individuals have some personal rights that are not a derivative of the person's existence in society. Gyekye states, 59

TE COLEMAN
Rights belong primarily and irreducibly to individuals; a right is the right of some individuals…communitarianism cannot disallow arguments about rights which may in fact form part of the activity of a self-determining autonomous individual possessed of the capacity for evaluating or re-evaluating the entire practice of his community. Some of such evaluations may touch on matters of right, the exercise of which self-determining individuals may see as conducive to the fulfilment of their human potential, and against the denial of which he may raise some objections. The respect for human dignity, a natural or fundamental attribute of the person which cannot, as such, be set at nought by communal structure, generates regard for personal rights.
The idea of empowering individuals in an African society to advance the course of self-development has also found favour with other African philosophers. Kasenene shares the view that the "actions of people that have the propensity to promote life or vitality must be encouraged because it is right to encourage such actions, whereas actions that decreases the 55 Gyekye "Person and Community in African Thought" 106; Metz "Overview of African Ethics" 69. 56 Paris Spirituality of African People 136. 57 Iroegbu "Beginning, Purpose and End of Life" 442. 14 vital force of a person be discouraged because it is wrong to foster such actions." 60 Iroegbu also proffers a general opinion that "activities of people that diminish life in all cultures are considered as evil, whereas those that promote it are regarded as good." 61 Notwithstanding the ambivalent position of whether an individual in an African society can embark on a mission of self-sufficiency without recourse to other people, it has increasingly become necessary, particularly today, to have due regard for individual autonomy in traditional African society. One thing is clear -traditional African societies do not attach absolute primacy to individual interest and personal autonomy.
Individual autonomy in an African society does not exist as an autonomous body of virtue that underlies African philosophy.
In sum, individual or personal autonomy in an African society is a concept that is not detached from the operations of society. While some scholars aver that the individual does not have autonomy at all, since African society is communitarian rather than individualistic, other scholars have intimated that due regard ought to be given to other attributes of human beings. To those scholars, it would be appropriate to afford individuals the freedom to advance their desires, though the exercise of such freedom must coincide with the general good of society. It is generally accepted that in African society interactions of individuals are relational/cooperative rather than individualistic.
As indicated already, the communitarian ethic of ubuntu seems to have crept into various academic disciplines, including but not limited to law, business, health, legal education and jurisprudence. 62 With respect to law, 60 Kasenene "Ethics in African Theology" 138-147. The spirit of ubuntu, part of the deep cultural heritage of majority of the population, suffuses the whole consitutional order. It combines individual rights with communitarian philosophy. It is a unifying motif to the Bill of Rights, which is nothing, if not a structured, institutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern.
Judging from the above narrative, the concept of ubuntu is a communitarian value that underlies the South African Constitution and informs the effectuation of fundamental human rights. Pivotal to the communitarian value of ubuntu are the concepts of humanness, fairness and social justice.
In addition, the concept of ubuntu informs the public policy of South Africa. Accordingly, a contract or provisions in a contract must not be at variance with the public policy of South Africa. Considering the towering status of the communitarian value of ubuntu in the constitutional order of South Africa, coupled with the judicial acceptance of the value as an embodiment of the public policy of South Africa, the primary question therefore is the extent to Public policy, as informed by the Constitution, requires, in general, that parties should comply with contractual obligations that have been freely and voluntarily undertaken. This consideration is expressed in the maxim pacta sunt servanda, which gives effect to the central constitutional values of freedom and dignity. Self-autonomy, or the ability to regulate one's own affairs, even to one's own detriment, is the very essence of freedom and vital part of dignity. The constitution's value of dignity and equality, and freedom requires that courts approach their task of striking down contracts with perceptive restraint...contractual autonomy is part of freedom. Shorn of the obscene excesses, contractual autonomy informs the constitutional value of dignity...This requires that its values be employed to achieve a careful balance between the unacceptable excesses of contractual 'freedom', and securing a framework within which the ability to contract enhances rather than diminishes our self-respect and dignity.  In essence, the basis upon which private individuals (natural and juristic) enter into a contract, as well as the enforcement of their respective rights and obligations in their agreement, must be predictable and certain. 83

Position of the Constitutional Court
Generally South African courts accept the theoretical foundations of contractual freedom and autonomy, and the related principles such as pacta sunt servanda and the sanctity of contracts. However, the efficacy of the notion of contractual freedom and autonomy and the concomitant principle pacta sunt servanda seems to have been watered down by virtue of the

19
horizontal application by South African courts, particularly the CC, of constitutional rights as well as the introduction of certain values such as equality, fairness, reasonableness, good faith and ubuntu. These values, it has been intimated, serve as checks to balance out and to a degree control the harsh effects of contractual freedom and autonomy. Suffice it to say that there is a sharp distinction between the position of the CC and that of the SCA concerning the applicability of "overarching values" such as good faith, fairness and reasonableness to limiting contractual freedom and autonomy.
Further, the CC and the SCA are at variance on the role of ubuntu in contractual relations.
To begin with, in Barkhuizen the CC took the position that a contract or a provision/term will be enforced provided that giving effect to that contract or provision will not be unreasonable. The CC relied on its own decision in In South Africa, freedom cannot come down to individual autonomy alone and only to be understood from a western liberal perspective. The importance of embracing freedom within our context cannot be understated. Freedom cannot be disassociated from our colonial and apartheid past. So in order for the potential of all South Africans, black and white, to be truly realized, the social and economic structures of apartheid must be undone. Only then can the majority of the country robbed of their dignity through various forms of dispossessions and deprivation be considered truly free. So, negative liberties that value individual autonomy at the expense of redressing the injustices of the past are ill-suited to the South African situation.  It is clear that public policy imports the values of fairness, reasonableness and justice. Ubuntu, which encompasses these values, is now also recognised as a constitutional value, inspiring our constitutional compact, which in turn informs public policy. These values form important considerations in the balancing exercise required to determine whether a contractual term, or its enforcement, is contrary to public policy. While these values play an important role in the public policy analysis, they also perform creative, informative and controlling functions in that they underlie and inform the substantive law of contract. Many established doctrines of contract law are themselves the embodiment of these values. In addition, these values play a fundamental role in the application and development of rules of contract law to give effect to the spirit, purport and objects of the Bill of Rights.

The recent decision in
The CC further averred that South African courts are enjoined by the provisions of the 1996 Constitution to promote the spirit, purport and objects of the Bill of Rights when developing common law and in instances "when common law deviates from the spirit, purport and objects of the Bill of Rights, courts are mandated to develop it in order to remove the deviation." 98 Froneman J stated that public policy takes into account the "necessity to do simple justice between individuals and is informed by the concept of Accordingly, the CC suggested that contractual freedom and autonomy be balanced with constitutional fairness in a manner "that ensures objectivity, reasonable practicality and certainty." 102 The CC further stated that infusing the communitarian value of ubuntu and the values that underlie it, i.e. the concepts of reasonableness, good faith, fairness and justice, into contract law accords with African philosophy. 103 As already explained in the previous sections, the primary idea underlying African philosophy is the belief that the interaction of people in a traditional African society is communitarian rather than individualistic. Differently stated, in traditional African societies, interactions of individuals are relational/cooperative rather than personal and/or individualistic.

Position of the Supreme Court of Appeal
The SCA has consistently held an opposing view on the use of good faith, reasonableness and fairness do not serve as an independent substantive body of rules that can operate to preclude the effectuation of a contract, a term of a contract, or a private legal arrangement. As succinctly pointed out by the SCA: 105 The constitution and its value system does not confer on judges a general jurisdiction to declare contracts [or a term of a contract] invalid on the basis of their subjective perception of fairness or on the grounds of an imprecise notion of good faith.
The SCA has also emphasised that the fact that a contract or a provision in a contract is harsh or unfair does not automatically mean it offends constitutional principles and warrants intervention by the court. importing the principles of "ubuntu and fairness required that parties take a step back, reconsider their position and not snatch at a bargain at the slightest contravention"an argument that essentially supports the notion that the principle of pacta sunt servanda ought not to be considered as a "sacred cow that should trump the spirit and letter of the Constitution of South Africa." 112 Speaking through Mathopo JJA, the SCA stated that: 113 [T]he fact that a term in a contract is unfair or may operate harshly does not by itself lead to the conclusion that it offends the values of the Constitution or is against public policy. In some instances, constitutional values of equality and dignity may prove decisive where the issue of the party's relative power is an issue. There is no evidence that the respondent's constitutional right to dignity and equality were infringed. It was impermissible for the high court to develop the common law of contact by infusing the spirit of ubuntu and good faith so as to invalidate the term or clause in question...It would be untenable to relax the maxim pacta sunt servanda in this case because that would be tantamount to the court then making the agreement for the parties.

Reconciling the position of the CC and the SCA
The above discussion highlights the opposing views held by the CC and the SCA. While the CC insists on the significance of the concept of good faith, reasonableness and the desire to infuse the traditional African value of ubuntu into contract law jurisprudence in South Africa, the SCA, on the other hand, has stated that the overarching values created by the CC cannot be applied independently to displace the contractual principles of freedom of contract and pacta sunt servanda. Academics in South Africa have expressed concerns that the lack of consensus between the two appellate courts creates a high degree of uncertainty regarding the operative scope of the concept of contractual freedom and autonomy, and the concomitant principles of pacta sunt servanda and the sanctity of contract. 116 Accordingly, there have been calls by academics to reconcile the divergent views adopted by the CC and the SCA.
Cameron and Boonzaier remark that there is a need to integrate the two perspectives or views adopted by the CC and SCA. 117 Hutchison avers that the views expressed by the CC should be more applicable to consumer contracts, while the position adopted by the SCA should be considered in matters involving large commercial contracts. 118 Bhana suggests that the views adopted by both the CC and the SCA have positive features.
However, none of the approaches is entirely satisfactory, and it is accordingly argued that the appropriate approach in dealing with the issue of the constitutional value of fairness lies somewhere between the approaches adopted by the CC and SCA. 119 This article agrees with the suggestion that the views expressed by the CC should be seen to be more applicable to consumer contracts, whereas the position of the SCA should be considered in large commercial contracts. 116 Hutchison "Nature and Basis of Contract" 34. 117 Cameron and Boonzaier 2020 RabelsZ 786. 118 Hutchison "Nature and Basis of Contract" 34. 119 Bhana 2017 SAJHR 10 TE COLEMAN PER / PELJ 2021 (24) 26 Suffice it to say that the CC in Beadica seized an opportunity to resolve the divergence regarding the approach adopted by the SCA and the CC on the role of ubuntu and constitutional fairness in contractual relations. 120 In Beadica the CC admitted that the opposing view adopted by the SCA on the issue of constitutional fairness and the infusion of the value of ubuntu into contractual relations has created an undesirable uncertainty in the South African law of contract. 121 Theron J, however, intimated that the divergence between the approaches adopted by the CC and the SCA is more percieved rather than real. The CC explained that: 122 Our law has always, to a greater or lesser extent, recognised the role of equity (encompassing the notions of good faith, fairness and reasonableness) as a factor in assessing the terms and enforcement of contracts. Indeed, it is clear that these values play a profound role in our law of contract under our new constitutional dispensation. However, a court may not refuse to enforce contractual terms on the basis that the enforcement would, in its objective view, be unfair, unreasonable or unduly harsh. These abstract values have not been accorded autonomous, self standing status as contractual requirements. Their application is mediated through the rules of contract law; including the rule that a court may not enforce contractual terms where the term or its enforcement would be contrary to public policy. It is only where a contractual term, or its enforcement, is so unfair, unreasonable or unjust that it is contrary to public policy that a court may refuse to enforce it.
The CC accordingly posited that the certainty in holding parties to their contractual bargain serves as the bedrock for economic activities in South  Relational contract theory is not a particularly well-developed branch of South African contract law scholarship, although there are traces of it in the literature. It also had a certain impact in debates outside of contract law, such as the proper approach to traditional land ownership. I believe that this branch of legal theory has a lot to offer, particularly in the post-apartheid contract-law setting. Relational theory would lend support to the rise of flexible standards in the common law of contract, as appears to be heralded by several dicta of the Constitutional Court. The emphasis on contextual factors such as the identity and inter-dependence of contracting parties, as well as on customary commercial norms in a given business community, may provide a theoretical backbone for a more communitarian law of contract which still has commercial values and economic realism at its heart.
Underlying the jurisprudence of the CC is an important concept of solidarity. Parties to an international commercial contract are exposed to many risks. 157 The idea that contracting parties ought to be afforded the freedom to exercise full control over the content of their agreement serves not only as a conveyor belt for efficient international trade and commerce, but it also to a very large extent affords the parties the opportunity to mitigate their risks in their transnational commercial relations. Parties' risks are mitigated when the basis upon which they contract and the enforceability of the provisions in their contract are not shrouded with uncertainties. 158 In the global legal order on transnational commercial law, parties to a contract have a reasonable expectation that their transaction will be enforced and the basis upon which they conclude their agreement will be respected. 159 The principles of contractual freedom and autonomy and the naturally accompanying concepts of pacta sunt servanda and sanctity of contracts are indispensable principles that underlie international commercial agreements and major international legal instruments on commercial law, Underlying these international instruments is the key idea that private individuals ought to be afforded the utmost freedom and autonomy to regulate the content of their commercial agreements. The extent of the freedom and autonomy conferred on private individuals in the abovementioned international instruments extends to the power of the parties to modify the provisions of the international treaties to suit their commercial needs. For instance, the CISG and the UPICC confer power on the contracting parties to modify its provisions to suit their commercial needs. 161 The concept of freedom of contract under the CISG and the UPICC is further consolidated by the concept of favor contractus, which is to the effect that contracts should be preserved whenever it is possible to do so. 162 The freedom and autonomy granted to parties under the UPICC is to allow them to exercise full control over their agreements. 163 The net aim of granting private individuals the highest degree of autonomy over their commercial agreements is informed by the idea that affording private individuals control over their commercial agreements enhances commercial certainty and predictability, thereby aiding the contracting parties to mitigate the risks they may be exposed to in their cross-border commercial agreements.
The approaches adopted by the CC and the SCA could have an impact on the basis of concluding and giving effect to provisions in an international 160  LA Int'l & Comp L Rev 20;Ferrari 1994-1995Rabello and Lerner 2003 Unif L Rev 614-615;Berger 2000 Unif L Rev 164-165;Bonell 1994-1995Tul L Rev 1137Doudko 2000 Unif L Rev 490-491;Saidov 2006 Unif