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It is also apparent that this vacuum has the effect of increasing the uncertainty around the outcome of a particular application of public policy, and that conflicting decisions by judges considering similar contractual terms become more likely.7 Whilst the advent of the Constitution of the Republic of South Africa, 1996, and the 'opening up of the sources of the common law'8 has had a profound impact on the conceptual and substantive nature of public policy - given its status as an 'open [legal] norm'9 - this observation ofViljoen J, made at the cusp of the transition to constitutionalism, is equally relevant today.
From this 'basket' she is required, in a given case, to choose those considerations which are relevant to the facts of that case, and then to balance these considerations against each other so as to determine whether a particular contractual term should be enforced.
(1995) 58 THRJJR 549; Schalk van der Merwe, L F Van Huyssteen, M F B Reinecke & G F Lubbe Contract General Principles 2 ed (2007) 194; I M Rautenbach 'Constitution and contract - exploring the possibility that certain rights may apply directly to contractual terms of the common law that underlies them' 2009 TSAR 613 at 634; Nyancleni Local Municipality vHlazo 2010 (4) SA261 (ECM) paras 81-9.
The second question, which requires a court to consider the relative situation of the parties to the contract, or, whether there was a disparity in bargaining power at the time of concluding the contract, does not necessitate the examination of any other policy considerations.79 As noted by Botha JA in Basson, however, equality of bargaining power 'is relevant only as one of the multitude of factors to be taken into account in the enquiry as to the reasonableness'80 of a contractual term.
The court in Barkhuizen, once again, appears to depart from established precedent by elevating what is merely a consideration to a separate requirement for a contractual term's validity.
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