Human rights take precedent in disputes
IF YOU are involved in a dispute, particularly one involving the interpretation of contracts or statutes, you must be aware that disputes will be looked at in the spirit of the Bill of Rights.
A body of case law is growing steadily to remind us that constitutional values will be preferred to formalism or to an interpretation that deprives people of basic rights. There are a number of recent examples.
A medical doctor who was employed by a provincial government was injured in an accident while on secondment to a military hospital. When she sued the national government the question was whether she was precluded from suing the state as a single entity because of the workers’ compensation laws. In deciding that for this purpose the state is not a single entity but is two entities under the compensation act, the court found that on the face of it there was no reason for choosing one interpretation above another.
But to find that the state is a single entity for the purposes of the act would deprive the claimant of her right to protection of her bodily integrity and security of persons guaranteed by the Constitution, and the scales tilted in her favour.
Where the common law includes concepts that are archaic and a reminder of an unfair past, the courts will develop the common law to promote the democratic values of dignity, equality and freedom.
The courts will themselves raise constitutional issues if the parties to a dispute do not do so particularly on behalf of ordinary litigants who, in the words of the Constitutional Court, are “adrift on a sea of litigious uncertainty”. Access to justice is an important value. But the state, and by analogy the advantaged litigant, will be set higher standards of compliance with process than ordinary litigants.
If you read the cases the general message is that we are expected to behave fairly in relation to others and good faith is an important component of any transaction.
In this column a year ago I referred to the new court decision upholding simple e-mail electronic signatures as binding on contracting parties. A person who had sent an e-mail that effectively amended a written contract that required the amendment to be in writing was held to his e-promise. The prohibition on the oral amendment by two contracting parties of a written document requiring written amendment has always been controversial because good faith requires that people are bound by their word to obligations they undertake intentionally.
No sooner had the judgment upholding simple electronic signatures appeared than commercial contracts started appearing with a new clause to the effect that “a signature” does not include an electronic signature and when things have to be done in writing they must be done with pen and paper.
It has often been suggested that the internet is the world’s greatest invention. Now that we can send things electronically why should contract terms drag us back into a pre-electronic era to allow people to evade their undertakings?
If anyone does not want to be bound by their e-mailed messages they should say so explicitly at the time (and not in a general disclaimer at the end of the e-mail).
Do not be surprised if the courts refuse to enforce provisions such as this on the basis that good constitutional values require that good faith has a real meaning in our interrelationships.
Courts will themselves raise constitutional issues if the parties to a dispute do not
Patrick Bracher (@PBracher1) is a director at Norton Rose Fulbright.