Report No. 199

South Africa

Procedural unfairness:

In South Africa, 'procedural' unfairness is referred by the Law Commission in its Report 1998 (Project No.47) in 'Unreasonable Stipulations in Contracts and the Rectification of Contracts'. The Bill attached thereto contains important procedural provisions.

Section 1 of the Draft Bill states that

"(1) If a Court is of the opinion that

(a) the way in which a contract between the parties or a term thereof came into being; or

(b) --- --- ---

(c) the execution of a contract, or

(d) --- --- ---

is unreasonable, unconsiderable or oppressive, the Court may declare that the alleged contract:

(aa) did not come into existence; or

(bb) came into existence, existed for a period, and then, before the action was brought, came to an end; or

(cc) is in existence at the time the action is brought, and it may then;

(i) limit the sphere of operation and/or the period of operation of the contract; and/or

(ii) suspend the operation of the contract for a specified period or until specified circumstances are present; or

(iii) until such other order as may in the opinion of the Court be necessary to prevent the effect of the contract being unreasonable, unconscionable or oppressive to any of the parties"

These are procedural aspects in the Bill.