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In considering the test for public policy, Ngcobo J (as he then was), writing for the majority, placed emphasis on the fact that time limitation clauses, by their nature, limit the constitutionally protected right to seek judicial redress.27 The learnedjustice, however, held that the mere fact that a clause limits a constitutionally protected right does not per se mean that it is contrary to public policy: '1 can conceive of no reason either in logic or in principle why public policy would not tolerate time limitation clauses in contracts subject to the considerations of reasonableness and fairness.'28 In addressing these considerations, Ngcobo J held that there are two questions that must be asked:
This, according to Ngcobo J, means that the inquiry must be 'directed at the objective terms of the contract'.31 This requires a weighing up of two considerations, namely, the principle of pacta sunt servanda and the right to seek judicial redress.
These include morality;''9 the administration of justice;60 the interests of the community and social or economic expedience;61 the necessity for doing simple justice between contracting parties;62 the interests of the state, or of justice, or of the public;63 the free exercise by persons of their common law rights;64 and the concept of ubuntu.65 In the context of restraints of trade, the courts go so far as to consider the conflicting substantive interests of the parties when deciding whether to enforce a restraint.66 Since the advent of the Constitution, the courts have also explicitly recognised the relevance of constitutional rights, such as the rights to have access healthcare and to seek judicial redress, to the public policy analysis.67 These rights, like their common-law cousins, also fall within the 'basket' of potentially relevant policy considerations.68
According to NgcoboJ, the first question to be asked when examining the demands of public policy is whether, on its face, the 'clause itself is unreasonable'.40 The learned justice then stated that in order to determine what is reasonable, the court must balance two conflicting (policy) considerations: pacta sunt servanda and the right to seek judicial redress.
In Barkhuizen, Ngcobo J phrased the test in Mohlomi as whether, 'broadly- speaking ... a provision affords a claimant an adequate and fair opportunity to seek judicial redress'.50 Ngcobo J then applied this to the facts of Barkhuizen, holding that '[tjhere is no reason in principle why this test should not be applicable in determining whether a time limitation clause in a contract is contrary to public policy'.51 With respect, however, the learned justice was mistaken.
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