Updating the fairness doctrine

As a consequence, the High Court did not deal with this argument, but dealt only with the argument that clause 5.2.5 is inconsistent with section 34. It found that clause 5.2.5 is inconsistent with section 34 and made a declaration to that effect.

If the Supreme Court of Appeal intended to hold that the broad test announced in Mohlomi is not applicable when considering whether a time limitation term in a contract is contrary to public policy, for reasons that appear later in this judgment, I am unable to agree with this view.The evidence that the Supreme Court of Appeal had in mind was: the short term insurance products market; the availability of such products; the availability of diversity of time limits to those seeking short term insurance cover; and whether for a person in the position of the applicant who, according to the Supreme Court of Appeal, “travels in a vehicle seemingly appurtenant to a reasonably affluent middle-class lifestyle . All law, including the common law of contract, is now subject to constitutional control.The validity of all law depends on their consistency with the provisions of the Constitution and the values that underlie our Constitution.The High Court accepted that clause 5.2.5 in itself is not a law of general application within the meaning of section 36 of the Constitution.However, it held that the law of general application in this case was the common law rule that agreements are binding and must be enforced (pacta sunt servanda).

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