Abstract

The constitution of the Republic of South Africa 108 of 1996 has an influence on the development of private law and specifically the law of contract. The Constitution imposes on every court, tribunal or forum a positive duty. The court must develop the common law in accordance with the Bill of Rights and the values underlying it, and that means that the common law must be tested against those values. Our present law of contract, for instance, still adopts an individualistic free market view as its point of departure. The emphasis placed on the law of contract on the rule that in principle contracts are concluded on the basis of consensus points to the recognition of private autonomy as the basis for contractual liability. Our present law of contract still accepts as its point of departure the presumed independence, economic equality, autonomy and responsibility of contactants. In principle, that on which the parties agreed, actually or constructively, is enforced without further ado. No other topic in the law of contract received as much attention during the last ten years in our case law as restraints. Any litigant who ventures into this minefield should treat it very carefully. The research questions are; is there an interest of one of the party which deserves protection after termination of the agreement? Is such an interest endangered by the other party? If so, does such interest weigh up qualitatively and quantitatively against the interest of the other party not to be economically inactive and unproductive? There is a scant opportunity for a contactant to avoid liability. He can do so only if he can rely on one of the numerus clausus of available defences. This paper will prove that general considerations of equity and fairness cannot as such provide a defence and that those policies in the corporate arena must be changed.

Key words: Defences, party autonomy, contract, restraints and free market.