1
حقوق::
مفهومسازی
1. the unclear and inconsistent description and conceptualisation of the nature of and test for public policy
;As I noted in the introduction, the first issue that I deal with in this article concerns the Constitutional Court's conceptualisation of the nature of, and test for, public policy.
To conceptualise the relationship between constitutional values and the traditional policy considerations in this way, thereby providing for such a possibility, is an approach that cannot be consistent with the intended purpose of constitutional values in the contractual setting.60 To pre-empt a possible conceptual objection to my argument, I note that if the courts were to prioritise constitutional values to the extent that they could never be trumped by the traditional policy considerations, this would render these considerations nugatory.
We can conceptualise and theorise all we want, but without doing the necessary groundwork, we can never hope to mitigate the apparently arbitrary application ofpublic policy.
55 For an example of the confusing consequences of this conceptualisation of the public policy test in Barkhuizen supra note 1, see the decision of the Supreme Court Appeal in Bredenkamp supra note 3 (in particular, paras 41-51).
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