The impact of Beadica on the public policy doctrine in South African contract law

Taylor, Max

The impact of Beadica on the public policy doctrine in South African contract law

Thesis / Dissertation

2024

Publisher

University of Cape Town

Department

Department of Public Law

Faculty

Faculty of Law

Abstract

The Constitutional Court's judgment in Beadica 231 CC v Trustees for the time being of the Oregon Trust (‘Beadica') sought to settle a long-standing debate in South African contract law concerning the proper scope of the public policy doctrine. This thesis traces the historical development of the doctrine and then critically evaluates the Beadica decision, firstly by clarifying what it held and, secondly by identifying certain doctrinal questions that remain unresolved post-Beadica, particularly questions relating to the application of the test developed by the Constitutional Court in Barkhuizen v Napier. The thesis contends that Beadica held that the public policy doctrine does not permit courts to override contracts on the stand-alone basis that they are unreasonable or contrary to some other abstract value. It did not, however, take the more far-reaching view, ascribed to it by the dissenting judgment, that abstract values can never be directly applied as override grounds under the public policy doctrine. Instead, it held that abstract values can be directly applied, contingent on certain conditions being met. Drawing on various historical and conceptual arguments developed during the thesis, possible avenues for the further rationalisation and constitutionalisation of the public policy doctrine are proposed and assessed.

Keywords

private law

Reference:

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Masters

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