Abuse of a dominant position within the meaning of the Competition Protection Act as a means of unequal bargaining power. 1 will return to this question later in the paper in the context of the analysis of inequality of bargaining power. In Sasjin (Pty) Ltd v Beukes'6, Smalberger J explained that "an agreement will be contrary to public policy if it is contrary to the interests of the community." He claimed yes.
Intervention is therefore necessary to protect the interests of the weaker party to the bargain. This remains a problem as contracts are still maintained based on long-standing contract rules based on the consensus of the parties. Davis J further held that the intention of the Constitution must surely be extended to all legal concepts, including the principles of contract.
ECONOMIC DURESS
The propositional inquiry involves two requirements: that of a threat, and that of the threat being contra bonis mores. The second requirement of the proposition inquiry has been understood in other jurisdictions to be that the threat must be unlawful or improper. The first leg of the test requires that the threat must have caused the contract or its modification.
The court further ruled that the defendant took advantage of the plaintiff's position to persuade him to enter into a deal to his detriment, which turned out to be unfair.158. The court characterized this as undue influence when the case contained none of the express requirements for undue influence. An important factor in determining whether economic duress has occurred is also the good faith of the parties.
However, good faith will not reduce the wrongfulness of a threat made under the duress of an unlawful act. 164. The general principle is that a threat by someone in a superior bargaining position to assert legal privilege will not automatically amount to economic duress if the exercise of the threat is not necessarily illegitimate or improper. I submit that this "something more" means that the court will find coercion if the conduct complained of affects the constitutional values of the party at risk.
But threats may be legitimate and implicate the interests and constitutional values of the weaker party and as such should warrant court intervention. In such a case, the court should hold that consensus has been improperly obtained arising from a threat affecting the constitutional values of the weak.
UBUNTU
No wonder the framers of our interim constitution saw fit to list ubuntu as one of the ingredients essential to the healing of our country. This case suggests that ubuntu does not play a significant role in influencing the court's decision, giving the impression that it is not a source that can be heavily relied upon in constitutional disputes. He believed that the purpose of compensation is to restore the dignity of the person defamed, not to punish the perpetrator.
A clause in the lease required the parties to negotiate in good faith an extension of the said lease. Parallels can be drawn between ubuntu and unequal bargaining power in that unequal bargaining power is the examination of one's behavior; while ubuntu takes into account the interests of the community of which a person is a part. A balancing approach must be taken, balancing the rights and interests of the individual against the rights and interests of the community (the core of ubuntu).
The constitutional value of ubuntu aims to place the interests of the group above the interests of the individual. On this basis alone, it appears that ubuntu will trump the interests of an individual if exercised in a manner that infringes on those of the community. Lauw argues in his unpublished article that the legal beliefs of the community are informed by ubuntu.
If inequality results in an abuse of private power, courts will try to balance the interests of the individual against the interests of the community. The constitutional value of ubuntu will prevail over the value of the individual in stronger bargaining power if his conduct in lawful conduct is abusive and obstructs the constitutional value of the contracting party.
CONSUMER PROTECTION ACT
I argue that this test can be used as a cornerstone to strengthen the constitutional value of ubuntu as a means of unequal bargaining power, or as a test to establish the violation of this constitutional value. If the parties perform their contractual obligations in a manner that takes into account these ethical standards, "the parties to a contract will be entitled to expect a degree of respect from the other party, to be treated fairly and within a contractual environment without attempt. by selfish overreaching."204 Should the parties engage in contractual dealings inconsistent with maintaining respect for the other party by refusing to negotiate a renewal of a business lease,'05 such contractual dealings would appear to be inconsistent with the constitutional value of ubuntu. and therefore be struck down. It can therefore be argued that ubuntu can be a means used to develop an inequality defense to challenge the validity and enforceability of contracts entered into contrary to public policy.
It also provides for consumer education as well as the promotion of consumer participation in decision-making processes. 207. The CPA applies to unequal bargaining power in contractual settings as the CPA is promulgated to govern the relationship between a supplier (provider) and a consumer (provider). A consumer is anyone to whom goods or services are marketed, who transacts (my emphasis) or benefits from the goods or services provided by the supplier.208 This means that by transacting with a supplier, you become a consumer and the CPA applies to your transaction.
The CPA regulates transactions where one party supplies goods or services, so inequality is not limited to the transaction of goods; it also applies to contracts where a service is provided (examples: obtaining banking services, hospital admission and care).
This can be interpreted as situations where the supplier abuses its stronger power to force the consumer to submit to the terms of the supplier's choice (giving all income to the supplier,17 not receiving medical treatment unless he signs authorization documents that exclude the liability of the supplier218). giving the supplier the right to turn off).'19. To support that unequal bargaining power may amount to prohibited conduct, paragraph two provides that it shall be unconscionable for a supplier to take advantage of a consumer in a position where he is unable to represent his interests because of his disability, illiteracy, ignorance, inability to understand the language of the agreement, or any other similar factor.220 • Any other similar factor remains undefined in law. Where it is alleged that the conduct of a supplier is contrary to the fair and honest dealing required of him within the meaning of Part F of the Act, the court is in some cases given jurisdiction to determine a matter in which violation of Article 40 is alleged. 221 The court must look at several factors in the supplier-consumer transaction to determine whether the.
222 Factors include the 'nature of the transaction or agreement between the parties, the relationship between them and their relative capacity, education, experience, sophistication and bargaining power (emphasis mine).'223 Once the court is satisfied that there is is of an offense they can make any order that is just and reasonable in the circumstances, such as the return of money or. While passing an order, the court is not limited to the orders mentioned in the section but has the power to declare the contract/transaction between the parties invalid or unenforceable due to the differences in bargaining power between the parties which led to the transaction being unreasonable. , unfair or unjust.
THE COMPETITION ACT 230
Abuse of a dominant position within the meaning of the Competition Act as an instrument for unequal bargaining power. Should bargaining power be exercised in a manner that leads to abuse, the two doctrines (competition and contract) will converge on the issue of recognizing the development of inequality defenses to take cognizance of abuse of power. Unequal bargaining power can be developed and reinforced as a factor in dealing with public policy challenges if it arises from a party in a stronger bargaining position using that power in an unlawful manner, resulting in unreasonableness, unscrupulousness and oppression of the party . weaker party.
For the courts to interfere with private individuals' contracts, the power must be exercised in an abusive manner that implicates the weak party's constitutional values. As such, it can be argued that the courts begin to play a proactive role if negotiation differences have implications for constitutional values or rights of the parties to the agreement. In this economic compulsion, one will find where the behavior of the stronger party implicates the constitutional values of the weaker party.
In the context of the Consumer Protection Act, Article 40 deals with the requirement of fair and honest dealings. The law is in line with .. the development of the defense of inequality in terms of public policy; in Afrox it was held that mere inequality will not give rise to conduct contrary to public policy. Greater bargaining power derived from inequality must be abused to justify interference.
I recommend that unequal bargaining power be developed as a factor for public policy. stating that inequality should be developed in such a way that: I) if unequal bargaining power is exercised in an unlawful manner, it will be contrary to the Constitution. 2) If the inequality is exercised in a way that affects the constitutional values of the weaker party, then the court must find that the stronger party's conduct is unconstitutional because it violates the constitutional values of human dignity , freedom and ubuntu. I submit that the development of inequality in this regard (essentially the common law) is consistent with the Constitution in terms of section 39(2), which requires that the development of the common law take note of the spirit, scope and objectives of the Constitution. .
