for the rights and freedoms of other persons”. The analysis of conflicting rights postulated by s 86(1) calls for an essentially unitary approach. The question whether a given right is being exercised reasonably is inextricably intertwined with the question whether it is being exercised with due regard for the rights and freedoms of others. What is required is the balancing of actually or potentially antagonistic rights, having regard to the nature of those rights, the manner in and the extent to which they impinge upon one another, and the circumstances in which they have been or are to be exercised. It is trite that a contract concluded in contravention of the written or unwritten law, or one that is contrary to public policy, is susceptible to being struck down and rendered of no force or effect. The doctrine of sanctity of contracts is obviously subject to constitutional limits. As was observed in v Bredenkamp and Others Standard 2010 (4) SA 468 (SCA) at para. 39, every contract or Bank of South Africa Ltd institutional rule must pass constitutional muster. Again, in v 2007 (5) Barkhuizen Napier SA 323 (CC) at para. 15, it was emphasised that: law, including the common law of contract, is now subject to constitutional “All control. The validity of all laws depends on their consistency with the provisions of the Constitution and the values that underlie our Constitution. The application of the principle is, therefore, subject to constitutional pacta sunt servanda control.” Adv. submits that the School’s contract of admission contains Mafukidze unlawful and onerous terms and conditions targeted against members of different faiths. They are contrary to public policy and therefore cannot qualify as rules capable of
for the rights and freedoms of other persons”. The analysis of conflicting rights postulated by s 86(1) calls for an essentially unitary approach. The question whether a given right is being exercised reasonably is inextricably intertwined with the question whether it is being exercised with due regard for the rights and freedoms of others. What is required is the balancing of actually or potentially antagonistic rights, having regard to the nature of those rights, the manner in and the extent to which they impinge upon one another, and the circumstances in which they have been or are to be exercised. It is trite that a contract concluded in contravention of the written or unwritten law, or one that is contrary to public policy, is susceptible to being struck down and rendered of no force or effect. The doctrine of sanctity of contracts is obviously subject to constitutional limits. As was observed in Bredenkamp and Others v Standard Bank of South Africa Ltd 2010 (4) SA 468 (SCA) at para. 39, every contract or institutional rule must pass constitutional muster. Again, in Barkhuizen v Napier 2007 (5) SA 323 (CC) at para. 15, it was emphasised that: “All law, including the common law of contract, is now subject to constitutional control. The validity of all laws depends on their consistency with the provisions of the Constitution and the values that underlie our Constitution. The application of the principle pacta sunt servanda is, therefore, subject to constitutional control.” Adv. Mafukidze submits that the School’s contract of admission contains unlawful and onerous terms and conditions targeted against members of different faiths. They are contrary to public policy and therefore cannot qualify as rules capable of
CCZ%2007-16%20-%20Makani%20et%20al%20v%20Arundel%20School.docx