Rudi Cohrssen is a Professional Consultant and teacher at CUHK LAW. Prior to joining CUHK, Rudi was a Barrister at the Victorian Bar, specializing in commercial law and arbitration. Rudi is also admitted to practice in South Africa and in Namibia, is a Fellow of the Chartered Institute of Arbitrators, and a Graduate of the Australian Institute of Company Directors.
Pacta sunt servanda, constitutionalism, public policy and the judicial control of remedies in the South African law of contract
The law of contract in South Africa is based on a hybrid of Roman-Dutch law and English common law. There is no formal law of equity in South African law as a separate body of law. Generally, equitable remedies like specific performance are considered part of the common law and have less constraints when sought by parties in cases involving contractual remedies. The advent of constitutionalism and a justiciable bill of rights in South Africa in the mid 1990’s has progressively influenced the principle of pacta sunt servanda through the development of ‘constitutional’ values (values entrenched in the Bill of Rights) and the pan-African notion of ubuntu in relation to public policy factors applied by courts in cases involving contractual remedies. The presentation will focus on this intersection of pacta sunt servanda, public policy, constitutional values and commercial certainty by discussing recent decisions of the South African Supreme Court of Appeal and of the Constitutional Court.