The Substance of Contractual Autonomy in the Twenty-First Century: The South African Experience

In this article, I look at the values of freedom, dignity and equality, as they are founded in the Constitution of the Republic of South Africa, 1996 and consider how they ought to constitutionalise the legal concept of contractual autonomy. I argue that the conception of contractual autonomy in the post-apartheid era has to be a shifting one that at once needs to be sensitive to the factual context, any applicable fundamental human rights (as entrenched in the Bill of Rights, Chapter Two of the Constitution), as well as the broader constitutional vision of a substantively progressive and transformative South Africa. To this end, I develop what I call the ‘foundational constitutional triad’ and use it as the framework for my ensuing analysis of the founding values. My analysis of the values then, reveals a distinct leaning toward a more full-bodied, substantive conception of legal autonomy. Indeed, this stands to reason given that the constitutional self is grounded essentially in the broader transformative project of South African society. In the end therefore, I maintain that if such an understanding of autonomy is carried forward into the South African law of contract, it would be able effectively to address the constitutional deficiencies of the extant conception of contractual autonomy.