The Dignity Jurisprudence of the Constitutional Court of South Africa: Cases and Materials, Volumes I & II

Barkhuizen

Barkhuizen v. Napier  () SA  (CC) CASE SUMMARY Facts The resolution of this matter turned on a constitutional challenge to a time limitation clause in a short-term insurance contract. Clauses of this type prevent an insured claimant from instituting legal action if summons is not served within the time limit prescribed by the time limitation clause. Barkhuizen, the plaintiff, insured his new BMW with a syndicate of Lloyds Underwriters. The time limitation clause in this policy required Barkhuizen to institute legal proceedings within ninety days of the rejection of his claim by the insurance company. Barkhuizen’s vehicle was subsequently involved in an accident. Barkhuizen lodged a claim with the insurance company within eight days. The insurance company rejected his claim. However, Barkhuizen then waited two years before instituting legal action against his insurers. The insurance company contended that Mr. Barkhuizen was barred from instituting an action since he had not done so within the ninety-day time frame prescribed by the time limitation clause. Legal History Barkhuizen conceded noncompliance with the clause. He then argued that the clause was not enforceable because it violated his section  right to have legal disputes resolved by a court. The Witwatersrand Local Division upheld Barkhuizen’s Barkhuizen challenge on the grounds that the clause in question violated Barkhuizen’s section  right of access to courts. The Supreme Court of Appeal reversed the decision of the High Court. The SCA held that, on the evidence placed before it, it seemed that the contract was entered into freely and voluntarily. Moreover, it was not apparent that the clause was unfair. Furthermore, the SCA held that the mere fact that a clause may seem harsh and unreasonable does not render it contrary to public policy or make it inconsistent with the Constitution. Issues Was the time limitation clause inconsistent with section , the right of access to courts, of the Constitution? Decision of the Constitutional Court Justice Ngcobo, writing for the majority, held that the proper approach to Mr. Barkhuizen’s constitutional challenge was to determine whether the time limitation clause in question was contrary to public policy. Public policy is, now, to be determined by reference to such constitutional values as dignity and freedom—as well as other values made manifest in the Bill of Rights. Once again, the Constitutional Court decided not to analyze the problem in terms of any of the specific substantive provisions of the Bill of Rights. The question then was whether, in light of public policy, Barkhuizen had an adequate and fair opportunity to seek the assistance of a court. The vital question, according to the court, was whether the contract had been freely concluded: “Self-autonomy, or the ability to regulate one’s own affairs, even to one’s own detriment, is the very essence of freedom and a vital part of dignity. The extent to which the contract was freely and voluntarily concluded is clearly a vital factor as it will determine the weight that should be afforded to the values of freedom and dignity” (paragraph ). Absent evidence that the contract was not freely concluded between persons with equal bargaining power, or that Barkhuizen was unaware of the clause, the majority concluded that Barkhuizen had adequate access to court. Justice Sachs and Deputy Chief Justice Moseneke dissented. Justice Sachs stressed the inherently coercive nature of standard form contracts vitiated the right. Order The appeal was dismissed. Comment Is the value of dignity better supported by recognizing the autonomy of individuals to sign invidious contracts and suffer the consequences; or by intervening in a contractual relationship to protect the weaker party? Should the Constitution play a paternalistic, protective role in contractual relations or should it stand back and allow power relations to play out unimpeded, whatever the consequences? To what  Legal Cases (–) extent does the outcome depend on the particular facts of the case, and how much room does the court actually leave for similar challenges in the future? JUSTICE NGCOBO The Supreme Court of Appeal [] On appeal the Supreme Court of Appeal accepted the correctness of the “general premise” that contractual claims are subject to the Constitution. It also accepted that a contractual term that is contrary to public policy is unenforceable and that public policy “now derives from the founding constitutional values of human dignity, the achievement of equality and the advancement of human rights and freedoms, nonracialism, and nonsexism.” However, it found that the...