![handle is hein.journals/jihr14 and id is 1 raw text is: Christopher J. Roederer
THE TRANSFORMATION OF SOUTH
AFRICAN PRIVATE LAW AFTER
TWENTY YEARS OF DEMOCRACY
Christopher J. Roederer*
ABSTRACT
In The Transformation of South African Private Law after Ten Years of Democracy, 37
COLUM. HUM. RTS. L. REV. 447 (2006), I evaluated the role of private law in consolidating South
Africa's constitutional democracy. There, I traced the negative effects of apartheid from public
law to private law, and then to the law of delict, South Africa's counterpart to tort law. I
demonstrated that the law of delict failed to develop under apartheid and that the values animating
the law of delict under apartheid were inconsistent with the values and aspirations of South
Africa's democratic transformation. By the end of its first decade, South Africa had made
considerable progress developing private law, but there was still much work to be done in
developing the law of delict, and especially contract law.
This article evaluates South Africa's second decade of constitutional democracy. While South
Africa continues to make democratic gains, it also faces serious problems with race, gender, and
wealth inequality. This article reviews South Africa's democratic achievements and challenges
over the last twenty years. It provides a brief overview of private law under apartheid before
addressing a number of post-apartheid democracy-reinforcing changes to private law. It then
analyzes the historically conservative common law of contracts and a recent case that progressively
develops the law of contracts and delict. Next, it turns to the Consumer Act of 2008, which has
important implications for both contract law and delict. The Act is analyzed in light of two
contrasting dramatic helicopter crashes: one that occurred before the Act came into effect, and one
after. While there has been considerable progress, there is still a need for improvement. More can
be done to align private law with the Constitution's values, to confront persistent inequality, and
promote freedom, dignity, and access to justice. Such breakthroughs would also deepen and
stabilize South Africa's democracy by bringing democratic principles and values into the everyday
lives of those affected by private law.
* Assistant Professor of Law, University of Dayton School of Law, Honorary Senior Research Fellow, University of
the Witwatersrand School of Law. The author would like to thank Annie Rodriguez, Juliet Idemudia and Daniel S.
Rosenheim for their excellent research assistance, as well as my fellow panelists at the Workshop on Twenty Years
of South African Constitutionalism at New York Law School and my former colleagues at the Florida Coastal School
of Law, Faculty Scholarship and Development Exchange.
Vol. 14:1]](ViewImageLocal?handle=hein.journals/jihr14&div=1&collection=&method=preview&ext=.png&size=3)
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