discretion and does not operate on the basis of abstract considerations such as good faith and bona fides, but rather on the basis of established legal rules . Authors suggest that the judgment in the Afrox case was erroneous due to the courts utter disregard for the inequalities and obvious unequal bargaining power between the contracting parties. I am of the opinion that this case called for the greatest scrutiny of public policy, boni mores, fairness, equality and good faith elements as it dealt with a person’s life, which in dire circumstances such a person seeking medical attention does not have the time or luxury of shopping around for better contractual terms and usually are forced into signing contracts with detrimental exemption clauses for fear of not obtaining much needed medical attention.
I agree with Authors who are of the view that if the court in this case did not see it fit to evaluate and unpack public policy compliance through judicial scrutiny then it may seriously be doubted whether any contract would ever qualify as such.
This case represents ideally how harsh and oppressive the implementation of an exemption clause can be on a contracting party who is in need of urgent assistance or services. In Johannesburg Country Club v Stott and Another, the Respondent and her late husband were members of the Appellant golf club. The deceased whilst playing golf was struck by lightning and was left severely injured and later passed away . The respondent, Mrs Stott, sought to hold the country club liable for her loss as she stated that her husband had passed as a result of the golf clubs’ negligence . Mr and Mrs Stott, however, were bound by the membership rules of the club which contained an exemption clause exempting liability of the club for personal injury or harm caused to members. The Respondents’ case was upheld in this matter with a profound statement being made by Harms JA which stated:to permit an exclusion of liability for damages for negligently causing the death of another would be against public policy as it runs counter to the high value the common law and the Constitution places on the sanctity of life. An analysis of the above two judgments indicates that courts recognise that public policy is deeply enveloped with the Constitution, however, despite such acknowledgement the courts remain hesitant and seemingly unwilling to actually declare contracts which limit constitutional rights unenforceable . In Brisley v Drotsky the case concerned the validity of a non-variation clause in a lease agreement. According to this clause, any variations to the terms or conditions of the contract were required to be recorded in writing and accepted by both parties in order to be valid and enforceable . The SCA found in correlation with the Afrox judgment that the agreement was a contract entered into with freedom, capacity and autonomy by both parties and thus should be upheld . This case highlights how seemingly uncontentious daily contracts can be turned into one-sided unfair consequences. In Napier v Barkhuizen the inclusion of a 90-day time bar clause in a contract was brought into question. Cameron JA acknowledged and accepted the approach of the courts in both Brisley and Afrox in recognising that the common law was indeed subject to the Constitution and that fundamental constitutional values of equality, dignity and freedom are to be taken into cognisance by courts when developing the common law of contract which must be in line with the spirit, purport and objects of the Constitution and courts should affirmatively move towards declaring contractual terms unenforceable when they are contrary to public policy. Despite the court’s repeated recognition of the importance of constitutional values in the above mentioned case law, the courts still manage to reaffirm its obedience to the classical liberal theory by implementing a laissez-faire reading of exclusion clauses with the consequence, in my opinion, being that public policy as informed by constitutional values is not adequately being utilised in a manner which can be effectively used to address potentially unfair contract terms or one-sided, oppressive and abusive exemption clauses. 4. THE PROPOSED CORRECT APPROACH WHEN DEALING WITH EXCLUSION CLAUSESThe common law of contract has recognised and established that agreements which violate public policy are indeed unenforceable. In order to ascertain if an exclusion clause is against public policy, a constitutional enquiry should be held in order to determine which constitutional right or value was infringed. Thereafter the limitation on the right or value should be tested against Section 36 of the constitution which allows for a person’s constitutional rights to be limited where it is ‘reasonable and justifiable to do so in a free and open democracy based on human dignity, equality and freedom.’ If in fact the exclusion clause justifiably limits a right or constitutional value then, and only then should the clause be upheld In conclusion, it is my view that exemption clauses cannot be treated in the same way as they have been under the common law and engulfed by the sanctity of contract principal instead, a more constitutionally holistic approach needs to be adopted and a test against the constitution and its values needs to be conducted around the enforcement of an exemption clause as the enforcement of such a clause always amounts to a limitation of the constitutional right of access to court. 5. CONCLUSIONExemption clauses have become the norm rather than the exception in standard contracts, and parties must therefore expect a contract to contain an exemption clause . Exemption clauses may take different forms and have different purposes. They may apportion risk or absolve liability in total . Where an exemption clause does not infringe rights, is entered into by persons with capacity, is unambiguous contained in the Bill of Rights, it should in general be upheld, as the freedom to contract is just as important as the rights entrenched in the Constitution, and cannot selectively be overlooked. Courts should be wary however in striking down exemption clauses and should interfere only where the clauses contravene public policy and violates the constitution. In protecting the rights or values infringed by the exemption clause I submit that courts should take a robust stand in determining if an exclusion clause falls within the ambit of public policy, ubuntu and good faith as these are the values that the constitution of our country is built on and these are the very values that will enable our South African law of contract to recognise true freedom, dignity and equality.