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Cited for the proposition that public policy is now rooted in the constitutional values; also cited for the principle that unequal bargaining power is a factor…
Cited for the principle that the mere fact that a point of law is raised for the first time on appeal is not in itself sufficient reason for refusing to…
Cited for the proposition that public policy is now deeply rooted in the Constitution and the values which underlie it.
Cited for the principle that a new point may be raised on appeal if it is covered by the pleadings and involves no unfairness to the other party.
Applied for the principle that public policy as informed by the Constitution imports notions of fairness, justice and reasonableness, and for the requirement…
Applied in determining the constitutionality of contractual clauses and the test for assessing public policy considerations in light of constitutional values.
Cited by the defendants for the proposition that constitutional law is above common law, as part of their argument that the terms of the contract are unfair.
Supreme Court of Appeal decision in the Barkhuizen matter; cited for the principle that courts must employ constitutional values to balance the excesses of…
Cited for the proposition that assessing contractual clauses against the purpose of the contract and the relationship between the parties would give rise to a…
Cited for the importance of the right of access to court as foundational to the stability of an orderly society.
Cited for the test concerning leave to appeal and whether it is in the interests of justice.
Cited for the test concerning leave to appeal and whether it is in the interests of justice.
Cited as an example of a case where this Court upheld an appeal from the Supreme Court of Appeal on the ground that that Court had failed to take due account…
The Constitutional Court granted leave to appeal and addressed the proper approach to constitutional challenges to contractual terms. The majority held that…
Cited by the Supreme Court of Appeal in contrast to the present case, as a case involving a pre-existing right to legal redress.
Cited for the test that consideration of what is in the interests of justice in an application for leave to appeal involves weighing relevant factors,…
Cited for the principle that all law derives its force from the Constitution and courts have a constitutional obligation to develop common law so as to bring…
Cited as an example where this Court held that the Supreme Court of Appeal had failed to take due account of the duty to develop the common law in light of the…
Cited for the proposition that public policy derives from constitutional values and founding provisions.
Applied for the principle that it is the tendency of the clause to deprive the respondent of his right to judicial redress which should be scrutinised for…
Cited for the test concerning leave to appeal and whether it is in the interests of justice.
Cited for the proposition that rules that limit the time during which litigation may be launched are common in our legal system and serve a purpose to which no…
Cited for the principle that section 34 is an express constitutional recognition of the importance of the fair resolution of social conflict by impartial and…
Applied for the principle that the onus is on a party alleging changed circumstances to prove that a servitude became contra bonos mores.
The Court cites Barkhuizen as one of four cases in which it considered the constitutionality of time bar provisions, noting that a time bar can limit the right…
The court cites this locus classicus case, as approved in Legacy Hospitality, for the doctrine of sanctity of contracts.
Court applies principle that a point of law may be raised for the first time on appeal if it is covered by pleadings and involves no unfairness.
Cited for the well-established principle of law of contract that due recognition is given to the bargain struck between contracting parties.
Court applied the public policy test requiring a careful balancing exercise of constitutional values to determine whether a contractual term or its enforcement…
Cited for the proposition that public policy must be guided by founding constitutional values of human dignity, equality, advancement of human rights and…
Cited for the principle that public policy considerations in contract law are grounded in the Constitution and its values.
Court cites this decision for the principle that all law is subject to and must comply with the Constitution.
Public policy is now deeply rooted in the Constitution and the values which underlie it. Public policy represents the legal convictions of the community.
Cited in relation to the principle that good faith and fairness are not substantive, free standing principles to interfere with contractual bargains.
Court applies Barkhuizen on the measure of public policy against constitutional values and on section 34 rights, and distinguishes it on facts because here the…
Applied for the principle that public policy requires parties to comply with contractual obligations freely and voluntarily undertaken, giving effect to the…
Cited in Beadica to explain that the perceived divergence between the Constitutional Court and Supreme Court of Appeal jurisprudence on public policy in the…
Cited for the principle that constitutional issues not raised in the High Court can be considered on appeal if the facts allow this without prejudice to the…
Applied and distinguished by the court a quo regarding public policy and good faith; the SCA held that the court a quo incorrectly applied Barkhuizen because…
Cited for the principle that costs decisions should consider the broader benefit of constitutional interpretation beyond the immediate parties.
Cited for the principle that courts have discretion not to be constrained by strict pleadings where no prejudice occurs.
Followed the principle of pacta sunt servanda and that contracts freely entered into must be honoured as giving effect to constitutional values of freedom and…
Cited for the proposition that legal points can be raised at any time during the proceedings.
Cited for the principle that a court may mero motu raise a question of law that emerges fully from the evidence provided no prejudice will be caused to any…
The court cites the judgment for the principle that public policy represents the legal convictions of the community and is rooted in the Constitution and its…
Barkhuizen is applied for the principle that public policy is informed by the Constitution.
The Court applies the Barkhuizen test for determining whether a contractual clause is fair and constitutional.
The court cited this case for the principle that self-autonomy, or the ability to regulate one's own affairs, even to one's own detriment, is the very essence…
This Court affirmed that public policy is determined by reference to the values that underlie our constitutional democracy as given expression by the Bill of…
Cited for the proposition that in motion proceedings a party must make its case in its papers.
Cited for the proposition that a costs order may have a chilling effect on litigants who wish to raise constitutional issues.
Cited for the exception to pacta sunt servanda in the case of constitutional violations.
Court applies the Barkhuizen principle regarding contractual fairness and public policy in the constitutional context; applicants argued the Full Court erred…
Cited on public policy in the light of the values of the Constitution.
Cited for the principle that whether a term in a contract is contrary to public policy must be determined by reference to the values that underlie our…
Applied for the proposition that enforcement of a contractual term may be contrary to public policy if it results in an unfair or unreasonable infringement of…
Cited on the principle that in the interests of justice and fairness each party should pay their own costs in this Court.
Applied for the principle that raising new points of law on appeal requires that the point be foreshadowed in the papers and cause no prejudice to the other…
Applied for the proposition that public policy represents the legal convictions of the community rooted in constitutional values and that courts should decline…
Cited for the proposition that self-autonomy is the very essence of freedom and a vital part of dignity.
Cited for the principle that a point of law depending on undisputed facts may be raised for the first time in argument without unfairness
Cited for the principle that a point of law raised for the first time on appeal may be considered if covered by pleadings and involves no unfairness to other…
Cited at para 57 for the proposition that autonomy involves the protection of the ability to regulate one's own affairs, supporting the respondents' claim that…
Court cites this case for settled law on pleading and raising points not covered in pleadings.
Cited for the proposition that autonomy and control over personal circumstances is a fundamental aspect of human dignity.
Court applies the public policy test for substantive fairness of contractual clauses, including the two-stage test (objective reasonableness and subjective…
Court cites the principle that a new point of law may be considered on appeal if it is covered by the pleadings and its consideration involves no unfairness to…
Cited for the proposition that all contracts are subject to constitutional scrutiny.
Applied for the principle that a new point of law may be raised on appeal if covered by the pleadings and if its consideration involves no unfairness to the…
Cited for discussion of contracts of adhesion in the context of interpretation.
Cited for the principle regarding the purpose of pleadings in setting out issues for the parties and the court.
Cited for judicial resistance to importing good faith as a free-standing contractual obligation in purely private law contracts.
Cited for the Constitutional Court's statement that self-autonomy and the ability to regulate one's own affairs is the essence of freedom and dignity.
Considered for the role of public policy in contract law and the limited role of good faith, reasonableness and fairness; also considered regarding costs in…
Cited for the principle that a new point of law may be raised on appeal if it is covered by the pleadings and involves no unfairness to the other party.
Applied to establish the criteria for when a new point of law may be raised on appeal without unfairness to the opposing party.
Court cites Barkhuizen v Napier where no costs were awarded despite failure because the applicant had raised important constitutional issues relating to…
Cited for recognition by the Constitutional Court of the importance of the principle of pacta sunt servanda (parties must comply with their bargains).
General citation in relation to the right to access to courts.