In The Transformation of South African Private Law after Ten Years of Democracy, 37 Colum. Hum. Rts. L. Rev. 447 (2006), I evaluated the role of private law in consolidating South Africa’s constitutional democracy. There, I traced the negative effects of apartheid from public law to private law, and then to the law of delict, South Africa’s counterpart to tort law. I demonstrated that the law of delict failed to develop under apartheid and that the values animating the law of delict under apartheid were inconsistent with the values and aspirations of South Africa’s democratic transformation. By the end of its first decade, South Africa had made considerable progress developing private law, but there was still much work to be done in developing the law of delict, and especially contract law.
This article evaluates South Africa’s second decade of constitutional democracy. While South Africa continues to make democratic gains, it also faces serious problems with race, gender, and wealth inequality. This article reviews South Africa’s democratic achievements and challenges over the last twenty years. It provides a brief overview of private law under apartheid before addressing a number of post-apartheid democracy-reinforcing changes to private law. It then analyzes the historically conservative common law of contracts and a recent case that progressively develops the law of contracts and delict. Next, it turns to the Consumer Act of 2008, which has important implications for both contract law and delict. The Act is analyzed in light of two contrasting dramatic helicopter crashes: one that occurred before the Act came into effect, and one after. While there has been considerable progress, there is still a need for improvement. More can be done to align private law with the Constitution’s values, to confront persistent inequality, and promote freedom, dignity, and access to justice. Such breakthroughs would also deepen and stabilize South Africa’s democracy by bringing democratic principles and values into the everyday lives of those affected by private law.
Christopher J. Roederer,
The Transformation of South African Private Law After Twenty Years of Democracy,
Nw. J. Hum. Rts.