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Mpofu-Walsh’s book ‘The New Apartheid’ misses the point on common and contract law

A number of scholars have argued that while the formal laws and structures that underpinned apartheid were dismantled with the advent of the democratic order, the legacy of apartheid persists in post-apartheid South Africa with wealth, power and education still largely divided along racial lines. The claim is that racism, white supremacy and white privilege have essentially been reproduced in other forms under the constitutional dispensation. 

Dr Sizwe Mpofu-Walsh’s book, The New Apartheid, is a laudable and timely contribution to the ongoing public discourse on the persistence of inequality, racism and the role of the Constitution of the Republic of South Africa, 1996.

Mpofu-Walsh contends that apartheid did not die when the constitution was adopted, but rather that it was privatised. In advancing this central thesis, he explores law as one of the pillars of what he terms “the new apartheid”. He posits that apartheid has reinvented itself, that our constitutional democracy is characterised by systemic racial separation and oppression and maintains the power dynamics of the old regime. 

While there is much to be said about some of the arguments made in the book, our purpose here is narrow and modest.

In a chapter on law, Mpofu-Walsh attempts to provide an analytical account of the role that law plays in aiding and abetting the privatisation of apartheid. Naturally, we read the chapter closely and enthusiastically. While Mpofu-Walsh is not a legal scholar, and does not hold the book out as a work of legal scholarship, he makes certain claims about law in the chapter, under a section titled “The Vexed Interface”, where he discusses the relationship and tension between the constitution and the private law (in the form of the common law), and in which he contends that apartheid is facilitated by private law, specifically the law of contract, which we believe are worth responding to.

It is important at the outset to explain that Mpofu-Walsh takes issue with the common law, which he defines as “the organic, uncodified body of law that resides in judicial precedents rather than parliamentary enactments”. This definition, while not entirely incorrect, is faulty to the extent that it leads Mpofu-Walsh to make erroneous conclusions about the nature and role of the common law in present-day South Africa, as we will show below.

Our common law is a peculiar mix of Roman-Dutch Law and English law as applied and developed by South African courts. While it is true that the common law is recorded and can be found in court judgments, it does not follow that any rule of law found in a judgment of precedential value forms part of the common law. 

The common law consists mainly of the laws of the Province of Holland as it was in the 17th century, as well as the writings of the so-called old authorities of Roman-Dutch Law – Voet, Grotius, Van Leeuwen, etc – Dutch jurists who revived the study of the Roman Law as part of an attempt to create a European ius commune (common law) in the 12th century. 

Received as the law of the Cape of Good Hope, thanks to Jan van Riebeeck and the Dutch-East India Company in 1652, it was later modified or replaced in part by the English judges brought over to preside in the Cape courts, who brought with them a wealth of case law to aid them in resolving disputes where the Roman-Dutch law was inadequate or simply too hard to understand. Judgments of the courts of England, prior to 31 May 1961, also form part of the common law.

This history of course illustrates the very unsavoury roots of our legal system, characterised by colonial conquest. But it equally reveals that the common law is much more than just the judgments of older courts, it has an intrinsic logic, and foundations which stretch as far back as the Roman Empire.

Mpofu-Walsh postulates two legal questions that pervade The New Apartheid. One such question is whether constitutional intentions are compatible with private law, especially the law of contract. His answer is a qualified “no”. The framing of this question and Mpofu-Walsh’s answer to it expose his entire argument as circular. 

First, the premise begs the question. The constitution is the supreme law, the “window of the nation’s soul”, and “the mirror in which a society views itself”. There is only one system of law in South Africa under the constitution and no other law could purport to be superior to it. Asking whether “constitutional intentions are compatible with the private law” inverts the true nature and order of things, and begins the argument where it should, in fact, end. 

Rather, the question is whether the private law itself is compatible with the constitution. To this, the law reports are replete with answers: Yes, and if not, then it must be shaped into conformance because in our law there is no constitution-free zone. No one can seriously claim that private law exists in a vacuum and is fundamentally at odds with the constitution.

Second, and most importantly, Mpofu-Walsh mischaracterises and misunderstands contract law and the common law generally. He vilifies the common law and contract law on the basis that they have their roots in apartheid and purportedly served as tools for its perpetuation. 

In light of this criticism, it is important to contextualise contract law and common law and their roles in any society. Contract law is a societal institution that defines the parameters within which parties may exercise some degree of control over their legal liability. It empowers parties to order and regulate their affairs in a manner that best promotes their interests with minimal governmental interference, inhibition or direction. 

The same normative argument underpins all other areas of private law; marriage, inheritance, property. Private law, at its core, enables ordinary people to realise their social and economic goals. Individual freedom, autonomy and dignity are at the heartland of contract law.

This does not mean that private law, and contract law specifically, runs untrammelled. The constitution and legislation are important strictures within which the private law operates. The effect of the constitution on contract law is twofold. On the one hand, it recognises and concretises the concept of contractual freedom and autonomy. As the Constitutional Court clearly explained in Barkhuizen v Napier, freedom of contract lies at the heart of constitutionally prized values of dignity and autonomy. It not merely a relic of apartheid, which stubbornly lingers on, but it is a constitutionally-endorsed principle.

On the other hand, the constitution restricts and limits the scope of contractual freedom. It serves as the foundational, overarching legal framework that regulates and governs the conduct of organs of state, state institutions and private persons. The constitution demands that the state and private parties (subject to some caveats) respect, protect, promote and fulfil the rights contained in the Bill of Rights. 

Thus, contractual autonomy may be limited in instances where it would offend the spirit, purport and objects of the Bill of Rights. Obligations arising out of a contract or any other private legal arrangement (e.g. a will) cannot, without more, infringe on the fundamental rights of another individual.

Historically, a contract could be vitiated where it offended public policy. What constituted public policy was unclear. But today, it is clear that public policy is informed and determined by the values that underlie the constitution. The Constitutional Court has reiterated that any provision of a contract that offends constitutional values is contrary to public policy. Furthermore, public policy espouses notions like reasonableness, fairness, equity and good faith. 

Accordingly, The New Apartheid’s characterisation of the constitution and the law of contract as being ideologically at odds is inaccurate. It is an over-simplification of the import of the constitution and its impact on private law generally and contract law specifically. 

To reiterate, the constitution regulates and constricts contractual freedom to prevent its abuse, but it also endorses the principle insofar as it imbues people with the dignity and freedom to regulate their own private affairs.

In any event, the debate in legal circles is not about freedom of contract per se but rather about the extent to which a court may refuse to enforce an otherwise valid contract on the basis that, for example, it would be unfair to enforce it. Mpofu-Walsh takes up the fairness point to argue that freedom of contract necessarily envisages that freely concluded contracts are always unfair. 

Not so. It is undisputed that courts wield great power in constitutional cases and the question is in fact to what extent such power should be brought to bear on the private affairs of individuals, which are otherwise legally valid.

Jarringly, Mpofu-Walsh avers that the “freedom in freedom to contract was defined as the freedom of white men to contract.” He then cites the Masters and Servants Act, 1856 as evidence of this because it imposed criminal sanctions on servants who purported to cancel their employment contracts. This claim is confusing because freedom of contract was, at the time, a common law principle and therefore it is not clear how a statute (the Masters and Servants Act) defined freedom of contract. 

The statute itself was racist and repugnant but that does not mean that freedom of contract by definition meant only the freedom of white men to contract. There is a glaring leap in logic here. Is the converse argument that black people did not have contractual arrangements and could not enter into contracts because they were denuded of contractual autonomy? 

What is also startling is that he provides no source for this claim except a reference to a portion of the Truth and Reconciliation Commission report which itemises homelands legislation. Without more, this is an unsubstantiated and misleading claim. We must not be misunderstood. We are not arguing that white men did not benefit greatly from freedom of contract, but we are questioning whether it is true that freedom of contract was “defined” as the freedom of only white men to contract. It is particularly unhelpful that the author conflates a common law principle with statutory provisions.

But this is not where the mischaracterisation ends. Mpofu-Walsh fundamentally mischaracterises the common law. He argues that the common law, through contracts, permitted racial injustice. He then cites several cases to illustrate this point. What he neglects to mention is that each of these cases involved racially discriminatory legislation. 

In Moller v Keimoes School Committee and Another, the central question before the Appellate Division was whether a child born of a coloured woman and white man could be considered a child of “European parentage or extraction” within the meaning of the Education Act, 1905.

In Minister of Posts and Telegraphs v Rasool, the principal issue concerned a post office regulation that required “Europeans” and “non-Europeans” to be attended to and serviced at separate counters. In Mokhatle and Others v Union Government, the central issue was whether in terms of “native law” and custom a chief had the requisite power to banish a recalcitrant and rebellious person  from his tribe and home. 

None of these are common law rules or principles, let alone rules of contract. It is thus unclear why Mpofu-Walsh relies on these cases to support his argument that contract law permitted racial injustices. The cases he cites related to some other form of law, either legislative or “native” which by implication excluded the application of the common law.

We interpose at this juncture to make a minor, but critical, observation. Mpofu-Walsh appears to conflate the common law with case law. As alluded to above, case law and common law are not the same thing and are distinct; some cases reflect the common law but not all cases are common law. It would be absurd to claim, for instance, that the Nkandla decision forms part of the common law even though it explicitly deals with constitutional interpretation. 

The difference is subtle but important: the common law (including contract law) does not supersede or “trump” legislation or the constitution. Common law is restricted to the prevailing constitutional and legislative arrangements of the time. Accordingly, where the legislative framework is racially discriminatory, the common will invariably be constrained to be applicable within that framework.

We of course do not defend the apartheid judiciary of white men who, in the 1970s and 1980s, abandoned the robust liberty protections of the common law (by limiting a detainee’s entitlement to a writ of habeas corpus for example) in favour of the security legislation of the increasingly paranoid National Party regime. 

But we consider it important to point out that the common law under apartheid was a social tool employed in the service of abhorrent and racist objectives but that that does not mean that the common law is itself essentially racist. It operated alongside legislation which was repressive and racist. 

Most of that legislation derogated from the common law and its application. However, everything is in flux and the law is no exception. It adapts itself to new environments, reflects the ideas and feelings of the society, contracts and expands, grows and declines. This should not be a controversial observation.

Mpofu-Walsh argues that the Constitutional Court’s judgment in Beadica, is symbolic of the triumph of untrammelled contractual freedom over constitutional rights and values. As explained earlier, contractual freedom is constitutionally-endorsed as it gives effect to dignity and freedom. 

Pitting contractual freedom against constitutional values is misplaced because contractual freedom is a constitutional value in and of itself. It is not untrammelled and is constrained by public policy considerations. For instance, parties cannot enter into contracts that are illegal or concluded fraudulently or under duress. 

The constitution now informs public policy and Beadica recognises this. In the majority’s own words: “constitutional rights apply through a process of indirect horizontality to contracts. The impact of the constitution on the enforcement of contractual terms through the determination of public policy is profound. A careful balancing exercise is required to determine whether a contractual term, or its enforcement, would be contrary to public policy”. 

However, the Constitutional Court in Beadica found that on the facts of that case “the inescapable inference [was] that there were no circumstances that prevented the applicants from complying with the terms of the renewal clauses in the leases” at issue. The exposition of Beadica offered by Mpofu-Walsh is rather simplistic and at odds with the express view of the court. 

To conclude, Mpofu-Walsh’s quibble with the common law, and contract law in particular, rests on a flawed understanding of both. Taking aim at contractual freedom, an important aspect of personal autonomy, is even more curious. Mpofu-Walsh no doubt has valid grievances about the state of South African society and the distribution of power along racial lines, as do we. 

However, we consider it important that our debates should not only be robust but also fair, truthful, and informed and we find his latest contribution to the debate to be wanting. In any event the law itself, as Mpofu-Walsh recognises, is no panacea for the crises that confront us. Where effective social, political, and economic solutions have been found, the law will surely follow.

Dan Mafora and Sfiso Nxumalo write in their personal capacities.

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Dan Mafora
Dan Mafora is a lawyer based in Johannesburg. He is interested in constitutional law and theory and rule of law issues. He has dabbled in corporate law but now freelances.
Sfiso Nxumalo
Sfiso Nxumalo is a DPhil in Law Candidate at the University of Oxford and holds an LLB (Wits) and BCL (Oxon).

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