The Defence of the Realm: Contract and Natural Justice
![handle is hein.journals/soaf119 and id is 412 raw text is: THE DEFENCE OF THE REALM:
CONTRACT AND NATURAL JUSTICE
DANIEL MALAN PkETORIUS*
Attorney
INTRODUCTION
It does not suffice for laws to bejust, said the late Sir (as he then was) Alfred
Denning; equally, they must be administered in a due and just manner.1 It is
for this reason that the principles of procedural fairness that are embodied in
the rules of natural justice (which find expression in the maxims audi alteram
partem and nemo iudex in sua causa) are regarded as constituting the very
foundation of the legal system of every civilized society.2
The audi alteram partem principle applies whenever a statute empowers
a public body or official to perform an act or to give a decision prejudicially
affecting a person in his liberty or property or existing rights, or whenever
he has a legitimate expectation that he will be heard before that act is
performed or that decision is given.3 It is sometimes asserted that the
application of the rules of natural justice is confined to the field of adminis-
trative law and, more specifically, that the audi principle is not applicable to the
exercise of 'purely contractual' rights.4 However, this assertion is fallacious:
the twin pillars of natural justice, as Sir William Wade famously declared, are
statute and contract.5 Of course, this does not mean that the audi principle
must be observed whenever contractual powers are exercised: Although it is
* BA LLB (Stell) LLM (SA).
'The road to justice' 1955 Bunerworths SALR 5 at 5 and 10.
2 Minister of the Interior v Bechler; Beier v Minister of the Interior 1948 (3) SA 409 (A) at 45 1; The Rt Hon
The Lord WoolfJeffreyJowell & A P Le Sueur Principles of Judicial Review (1999) 248. 'The history of liberty
has largely been the history of the observance of procedural safeguards': McNabb v United States 318 US 332
at 347. See Janse van Rensburg NO & another v Minister of Trade and Industry & another NNO 2001 (1) SA 29
(CC), 2000 (11) BCLR 1235, para 24. The principle that laws should be administered in a just manner is
also entrenched in the Freedom Charter, which was adopted at the Congress of the People on 26 June 1955
and which proclaims that '[n]o-one shall be imprisoned, deported or restricted without a fair trial'.
3 Du Preez v Truth and Reconciliation Commission 1997 (3) SA 204 (A) at 231 C-E. The decision in Director:
Mineral Development, Gauteng Region v Save the Vaal Environment 1999 (2) SA 709 (SCA) at 718D-4 suggests
that the audi rule may apply whenever the exercise of a statutory power may have 'serious consequences' or
'grave results'or cause 'potential jeopardy'. (Also see Nortje v Minister van Korrektiewe Dienste 2001 (3) SA 479
(SCA) at 479D-F.) However, in President of the Republic of South Africa v South African Rugby Football Union
2000 (1) SA 1 (CC), 1999 (10) BCLR 1059, para 219 it was held that the requirement of procedural fairness
is not necessarily relevant to every exercise of public power and that the Du Preez case is not authority for
the proposition that, whenever prejudice may be anticipated, a finctionary exercising public power must
give a hearing to the affected person.
4 See, for example, Naran v Head of the Department of Local Government, Housing and Agriculture (House of
Delegates) 1993 (1) SA 405 (T) at 407B-C.
5 'Judicial control of universities' (1969) 85 LQR 468 at 469.](ViewImageLocal?handle=hein.journals/soaf119&div=40&collection=&method=preview&ext=.png&size=3)
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The Defence of the Realm: Contract and Natural Justice
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