Afrox Healthcare Ltd v Strydom,[1] an important case in South African contract law, was heard in the Supreme Court of Appeal (SCA) on May 13, 2002, with judgment handed down on May 31.
On his admission, the parties concluded an agreement, of which it was a tacit term, according to Strydom, that Afrox's nursing staff would treat him in a professional manner and with reasonable care.
Strydom argued that this conduct amounted to a breach of contract and instituted an action holding Afrox responsible for the damages.
Strydom argued further that the Constitution of the Republic of South Africa obliges every court, when developing the common law, to promote the spirit, purport and object of the Bill of Rights.
The evidence was that he had signed the document without reading it, even though he had had an opportunity to do so, but Strydom contended that the admission clerk had had a legal duty to inform him of the content of the clause and had failed to do so.
The standard to be applied in respect of exclusionary clauses is no different from that applicable to other contractual terms which are invalid as a result of considerations of public policy.
The question is whether upholding the relevant clause or other term would conflict with the interests of the public as a result of extreme unfairness or other policy issues.
[9] It appeared from the judgment of the court a quo that it had been of the opinion that the principles of stare decisis as a general rule did not apply to the application of section 39(2) of the Constitution.
[12] The court found further that a person who signed a written agreement without reading it did so at his own risk and was consequently bound by the provisions contained therein as if he were aware of them and had expressly agreed thereto.