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In order to provide some more concrete guidance on the application of the suggested ethical standard of good faith, I will - again briefly and rather simplistically - attempt to consider such application in a more practical sense, by examining the potential role for such a mechanism in an actual case. The Durban High Court, in Standard Bank v Dlamini ,  recently considered a matter that I believe provided an ideal opportunity for this exercise even though the words 'good faith' appeared only once in the judgment of the court, and then not in the context of the relationship between the parties to the contract and the litigation.
Dlamini under a credit agreement for the financing of a motor vehicle. Dlamini had bought a used car at a dealership in Pinetown which acted as an agent for the bank in terms of the financing agreement , which he returned four days later because the vehicle malfunctioned. The bank claimed that Dlamini had voluntarily surrendered the vehicle in terms of the National Credit Act or NCA ,  because he had failed to notify the bank of the return of the vehicle to the car dealership, and they issued summons against him for the return of the vehicle, costs of suit and the costs of locating, removing, storing and disposing of the vehicle.
The bank relied on clause If he terminated the agreement in this way he was obliged to pay rental for the use of the vehicle for the time that he had it and any reasonable costs the bank might incur to have the vehicle returned or restored to a saleable condition.
The contract did not record that Mr. Dlamini was entitled to a refund in terms of the Act.
Pillay J held that the only issue in dispute on the facts was whether or not Dlamini knew and understood the terms of the agreement specifically relating to his duty to inform the bank of the termination of the agreement. Before returning to the facts of the case, it bears noting that the court decided the matter on the basis of the bank's reliance on caveat subscriptor and quasi-mutual assent based on Mr. Dlamini's signature on the credit agreement. The learned judge, interestingly, decided that this case implicated Dlamini's right to equality under the Bill of Rights: .
However, when the NCA applies, the constitutional right to equality comes to my mind immediately. What then is the interface between the Constitution, NCA and the common law principles of caveat subscriptor and quasi mutual consent? Following the court's consideration of case authority on the caveat subscriptor rule as well as the provisions of the National Credit Act , the court found that Mr.
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Dlamini was not bound to the notice requirements under the contract and, in fact, that for a number of reasons the credit agreement was unlawful. Ultimately, Pillay J held as follows: . The unlawfulness on all the grounds established above is a breach of the right to equality in s 9 1 of the Constitution. The Bank conducted this transaction oblivious of the purposes of the NCA.
Notwithstanding the manifest inequality in its relationship with its bargaining counterpart it sought to snatch an advantage. I will not evaluate the correctness of the court's approach in this case here beyond remarking that the learned judge's automatic recourse to the constitutional equality right was not explained,  and that such direct recourse to section 9 of the Bill of Rights also appears strange in light of the Constitutional Court's preference for indirect application as expressed in Barkhuizen v Napier .
What I would like to do is to briefly examine the potential application of an ethical standard of good faith based on the facts of the Dlamini matter and the court's findings regarding the circumstances surrounding the conclusion and enforcement of the credit agreement. In the light of the foregoing discussion, consider the following observations by the court which I quote extensively here :.
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Mr Dlamini completed schooling at standard one. At 52 years, he is an unsophisticated African male. He had difficulty in the witness stand engaging with the documents. He had become so excited about the purchase of a vehicle that he paid little attention to the repayment plan.
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He relied on the Bank to deduct reasonable instalments. He did not expect the Bank to deduct a high amount that left him without the means to support himself, his wife and his two little children. He expected to discover what the amount of those instalments would be when the Bank deducted its first instalment from his account. He trusted his bank.
On discovering that he bought a defective vehicle he returned it intuitively to the person who sold it to him. Such non-disclosure and selective disclosure is designed to deceive consumers. Such deception conflicts with the letter and spirit of the NCA. Above all, it reinforces the patterns of inequality and inequity that persist in South Africa.
Such a business practice makes credit transactions unduly onerous and a veritable trap for poor, illiterate and disadvantaged people who intuitively would return defective goods to a supplier and ask for a refund. Even if the Bank and its agents provided this service at a fee it would have been far cheaper than litigating to determine the basis of the termination. Relying on agents whose interests as second hand car dealers conflicted with consumers' interests needed better control of the agent to avoid any finding that the Bank was complicit.
Part B of the agreement which incorporates the terms and conditions, an acceptance form and an authority to release goods form is seven pages.
The terms and conditions span over five pages incorporating 18 main clauses with several sub-clauses. Clause 1 is a list of definitions usually found in complex agreements and legislation. For lawyers and lay persons alike, the form of the Bank's standard agreement is an unappetising formidable read. For a labourer like Mr Dlamini who did not read, write or understand English there might just as well have been no written agreement at all.
It defeats the purpose and policy of the NCA and renders the entire agreement unlawful. Consequently, this action for confirmation of the termination and the return of the vehicle was wholly unnecessary. Why the Bank framed its relief in these terms remains unexplained. Penalising and intimidating Mr Dlamini are aims that cannot be excluded.
The Bank's conduct in initiating and pursuing this action is unlawful for the further reason that it is irrational. I have little doubt that a court armed with direct recourse to the application of an ethical standard of good faith based on the legal convictions of the community and, especially, ubuntu would have little difficulty in finding that the above facts and findings in Dlamini 's case show a clear breach of such a standard, and that the bank's conduct in the circumstances was unlawful and unconstitutional.
Dlamini was in every sense reduced to an object of economic gratification for the bank, and the bank failed to show him the required respect as counter-party to the contract. The bank would appear to have abused its economic and bargaining power over an illiterate and ignorant individual, and propounded the insult and injury through its choice of litigation and litigation tactics.
Standard Bank v Dlamini provides an example not only of how such recourse to good faith would assist litigants faced with such overwhelming obstacles in the protection of their rights; it also shows why we need such a mechanism for the pursuit of substantive equity in contracts especially considering that this case involved a contract concluded under consumer protection legislation, with clear proof that the credit provider - one of the largest commercial banks in the country - had not aligned its standard form contract and practices with such legislation and was, apparently, simply doing 'business as usual' with little concern for the rights and interests of the consumer.
As argued above, I believe that specific content can be given to an ethical duty of good faith by the courts. On a broader level, I believe that justification for such an exercise in terms of the legal convictions of the community can also be found in the minority opinion of Sachs J in Barkhuizen even though his views were expressed in the specific context of the law's treatment of standard form contracts : . What is needed is a principled approach, using objective criteria, consistent both with deep principles of contract law and with sensitivity to the way in which economic power in public affairs should appropriately be regulated to ensure standards of fairness in an open and democratic society.
Ultimately, however, and as already suggested, it would be the task of the courts to determine the parameters of such an ethical duty of good faith based in the boni mores and ubuntu. The fact that this exercise would have to proceed on a case-by-case basis, however, should not detract from legal certainty in the application of such a standard of good faith. And, even if these are inaccurate descriptions of the process of legal adjudication, I would submit that the effects of any legal uncertainty that might result would, at least, be tempered by the fact that our courts would be motivated by the intention to actively pursue substantive equity in the cases before them.
And the establishment of a culture of good faith adjudication would surely serve a preventative or deterrent function and, eventually, translate into the negotiation and enforcement of contracts that are more in line with the good faith standard. This could, ultimately, go some way towards obviating the need for such adjudication by our courts by ensuring that only the most egregious cases of bad faith will end up in court, thereby eliminating the hard cases that make for bad law.
Should we really ask for much more than that? In this piece I have argued that the Supreme Court of Appeal's current understanding and apparent devaluation of the role of good faith in contract law is wrong, and that this court has not sufficiently explained and defended its 'conservative' stance on good faith in respect of its apparent conviction that "this road leads to uncertainty in contract".
I have also pointed to the fact that the Constitutional Court has provided strong indications not only of a possible view that the SCA's understanding of good faith is incorrect, but also of a willingness to change the law as soon as an appropriate opportunity presents itself.
More specifically, I have argued - and I must admit that this is not a novel argument  - that a robust role for good faith can be developed, based on the legal convictions of the community or boni mores , and that the SCA has not sufficiently explained its rejection in Brisley of the idea of the application of the boni mores to contracts. There are strong indications from the CC that ubuntu will be used to develop a more robust role for good faith, which appears unassailable in the light of the constitutional value system including the role of ubuntu and the nature of good faith as a key legitimating principle in contract law.
I believe that the fears of legal uncertainty in respect of the application of a robust good faith doctrine may be illusory if one considers that it is possible to formulate and develop an objectively verifiable, ethical standard of conduct in contracting, which would be little different from our courts' use of public policy to date. When the then Appellate Division so famously 'buried' the exceptio doli generalis in Bank of Lisbon  it did so relying quite heavily on the fact that this "superfluous, defunct anachronism"  had never been received into our law, because all our contracts are, fundamentally and as a matter of first principles, viewed as being contracts bonae fidei.
It is ironic then that this same court - and especially so in its new guise in our constitutional era - has failed to properly recognise this centrally important good faith component of contracts, through a limp-wristed conception of bona fides as nothing more than a footnote or fine print to the text the text that is the less 'slippery' and more easily quantifiable black letter doctrines and rules of our law of contract.
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The exceptio would be superfluous only if the common law recognised a comparable mechanism to achieve the same aims; but in its failure to assert this elementary logical precept it would appear as if our courts have failed us. In the final analysis, I believe that the time has come for the courts to realise that, as Liew observes, a robust doctrine of good faith is not something that is at all at odds with the objectives of our law of contract or its continued legitimacy and existence although it may very well be at odds with some central precepts of our economic system,  which may, in any event, require re-evaluation in due course as part of the greater constitutional project : .
Good faith, properly understood, is not alien to the institution of contract; on the contrary, without mutual trust, candour and sincerity, it is difficult to see how contracts could be agreed at all. If these premises are accepted, then the way is open for an obligation of good faith to be implied in law into every contract. What the content of that obligation is, however, must always be fact-specific, taking into account the intentions of the parties, the purpose of the contract, and the relevant matrix surrounding the contract's formation and operation.
In other words, while a default obligation of good faith may be implied into every contract by law, the precise scope or extent of that obligation will always be a matter of construction or implication in fact. Such an approach adequately balances the communitarian interests of the proponents [of a robust doctrine of good faith] with the opponents' rightful insistence that agreements should be rooted in the will of the parties, and that contractual rules must therefore be clear and predictable in order to facilitate the implementation of such intentions.
Being guided by the parties' intentions in this regard thus gives the doctrine of good faith both legitimacy and practicality.
Once we accept the natural place for good faith, we can start to use it to better develop not only our law of contract but to enrich the tapestry of our very society. We will still, and for some time to come, be faced with the colonial tradition of our legal system including, in the current context, the law's apparent long-held preference for the classical, liberal theory of contract law , as well as our relatively unique socio-economic conditions and the realities of our extremely unequal society. Recourse to the law is still mostly the domain of the privileged and they are no longer, necessarily, only previously-advantaged, white South Africans - the bad guys are no longer so easy to spot.
In the face of these dichotomies, it is clear that not all the kids in the playground can be trusted to play fair without some form of communitarian ethical policing. The Constitution is there, very explicitly, to protect the weaker kids against the bullies.