Of Dorothy’s dog, ‘poststructural’ fairy tales … and the real: Power, Poverty and the General Principles of the South African Law of Contract

by | Oct 18, 2019 | SAJHR, SAJHR V29 I3

Of Dorothy’s dog, ‘poststructural’ fairy tales … and the real: Power, Poverty and the General Principles of the South African Law of Contract

Authors Jaco Barnard-Naudé

ISSN: 1996-2126
Affiliations: Professor, Department of Private Law, University of Cape Town
Source: South African Journal on Human Rights, Volume 29 Issue 3, 2013, p. 467 – 480

Abstract

South African precedent does not allow for the consideration of the validity or enforceability of a contract in terms of the good faith principle. Yet, the principle of good faith permeates the foundational ideals and the spirit of South Africa’s post-apartheid Constitution. After re-emphasising the by now trite point that all legal rules have distributive consequences and that the common law represents a set of political choices, the article discusses the philosophical history of good faith and defends it as the primary transformative ethical device of the general principles of contract law, arguing that an elevated status for good faith in contract is implicit in the post-liberal reading of the Constitution and the ills that such a reading seeks to address. With reference to the work of Michel Foucault, the article concludes that curial consideration of the question whether a party to a contract has abused her bargaining power, forms a critical part of the transformative work that contract law is (also) constitutionally mandated to do.

In defence of the right of religious associations to discriminate: A reply to Bilchitz and De Freitas

by | Oct 18, 2019 | SAJHR, SAJHR V29 I2

In defence of the right of religious associations to discriminate: A reply to Bilchitz and De Freitas

Authors Patrick Lenta

ISSN: 1996-2126
Affiliations: Associate Professor, School of Philosophy and Ethics, University of KwaZulu-Natal
Source: South African Journal on Human Rights, Volume 29 Issue 2, 2013, p. 429 – 447

Abstract

In a recent Special Issue of the South African Journal on Human Rights (SAJHR) devoted to the theme ‘religion and human rights’, David Bilchitz and Shaun de Freitas reply to arguments advanced by me in support of according religious associations a right to discriminate on grounds such as gender, sexual orientation and race in their employment practices relating to positions sufficiently close to the religion’s doctrinal core. Bilchitz continues to think that I allow too much discrimination on the part of religious associations. He rehearses arguments in defence of his view that religious associations should not be allowed to discriminate in employment practices on otherwise prohibited grounds and presses new objections to the position I favour. By contrast, De Freitas is of the view that I do not afford religious associations enough opportunity to discriminate. Between them, Bilchitz and De Freitas charge that I ‘owe’ several arguments. I offer here a final reply to Bilchitz and De Freitas in defence of the right of religious associations to discriminate, as I understand it. Although I respond towards the end to a criticism of my position by De Freitas, most of this article is given over to a reply to Bilchitz, whose arguments represent the more drastic challenge to my claim that religious groups should be permitted sometimes to discriminate. My purpose is to show that, although he contends adroitly in support of denying to religious associations a right to discriminate, Bilchitz’s efforts are unavailing. His arguments are not nearly strong enough to justify denying to religious associations a right sometimes to discriminate.