HFL Learning Unit 1-3 (Outcomes)

The Constitution and the Law

• Constitution is supreme law in South Africa.
• Any law conflicting with the Constitution is invalid.
• All laws must be interpreted to promote the spirit of the Bill of Rights.
• The Constitution is the ultimate legal authority, superseding common law, customary law, and legislation.
• Laws violating human rights or equality can be challenged and invalidated.

Transformative Constitutionalism

• Involves using the Constitution to reform society and address inequalities from apartheid.
• It is an ongoing process of changing laws and institutions to promote justice and fairness.
• Aims to uplift the poor, promote equality, and build a just society.
• It includes fighting poverty, ensuring dignity and access to resources, and making the law beneficial to all.
• The Constitution is a tool for societal transformation, not just a rulebook.

Personal Opinion on the Constitution's Purpose

• The Constitution protects the rights and dignity of all South Africans, particularly the disadvantaged.
• It gives every person equal worth under the law.
• It holds the government and private actors accountable.
• Its power lies in transforming society to ensure justice is a lived reality for the vulnerable.

Real Rights vs. Personal Rights

• Real Right: A right in a thing (property) itself.
• Personal Right: A right against a person.
• Real rights are enforceable against the whole world.
• Personal rights are enforceable only against a specific person.
• Example of a Real Right: Ownership of land.
• Example of a Personal Right: Right to be paid rent.

Possession in Roman Law

• Possession involved physical control of a thing (corpus) and intention to hold it as your own (animus).
• Roman law protected possession with legal remedies, even without ownership.
• Possession plays a role in modern South African law, especially in land disputes and evictions.
• The Constitution grants some rights to unlawful occupiers, such as fair procedures for eviction.

Iusta Causa

• Iusta causa refers to a valid legal reason for transferring ownership.
• Examples include a sale, donation, or inheritance.
• A lawful cause is required for ownership transfer to be valid.
• A valid reason combined with delivery is needed to make the ownership transfer legal.

Eviction Law, the Constitution, and Unlawful Land Occupiers

• Section 26(3) of the Constitution protects people from being evicted without a court order.
• Courts must consider all relevant circumstances, especially the rights of the poor and vulnerable.
• Port Elizabeth Municipality v Various Occupiers (2004) emphasized human dignity, fairness, and housing needs.
• Courts must balance justice with property rights, even for unlawful occupiers.

Constitutional Protection of Property Rights

• Section 25 of the Constitution grants everyone the right to property.
• Property rights can be limited for land reform or social justice.
• It prevents arbitrary deprivation.
• It balances individual rights with the public interest.
• Property use should be fair and benefit all South Africans.

Development of Good Faith

• Roman Law: Good faith was central to all contracts, requiring honesty and fairness.
• Roman-Dutch Law: Good faith was valued, especially in sale contracts.
• Modern SA Law: Good faith is an underlying principle but not a legal requirement.
• Courts rarely enforce it directly.
• Not legally required today but still morally expected.
• The Constitution and ubuntu may revive it more meaningfully in the future.

Continued Role of Freedom of Contract

• Freedom of contract means parties can freely choose who to contract with and on what terms.
• It assumes equal bargaining power, which is often false.
• In South Africa, poor people often have no real choice, especially with essential services.
• The Constitution demands a rethinking of freedom of contract to prevent exploitation.

Good Faith, Ubuntu, and the Constitution

• All three promote fairness, dignity, and justice.
• Good faith means acting honestly and fairly.
• Ubuntu means treating others with compassion and respect.
• The Constitution protects human dignity, equality, and fairness.
• They form a moral foundation for interpreting contracts with social justice in mind.

Consumer Protection Act (CPA) 68 of 2008

• Protects vulnerable consumers from unfair terms and defects in goods.
• Overrides common law, making voetstoots clauses invalid in consumer contracts.
• Ensures quality, safety, and fairness in goods and services.
• Enforces substantive equality in the marketplace.

Relationship Between Wealth, Power, and Contracts

• Rich parties often dictate contract terms.
• Poorer people have less bargaining power and often no real choice.
• Contracts in this unequal context can entrench poverty.
• The law must rebalance these inequalities and prevent the protection of the status quo.