The legal protection afforded to the consumer under current South African law with emphasis on the legal position in specific credit agreements contained in standard-form contracts

摘要

The thesis covers the field of the contract law known as the consumer credit law. It deals with the legal protection afforded to the consumer under current South African law with emphasis on the legal position in specific credit agreements contained in standard-form contracts. The thesis focuses on those credit contracts in which the legal relationship between the consumer and the dominant party is contained in the standard-form contracts, specifically credit agreements relating to money lending transactions in which the credit grantor’s rights are secured either by means of mortgage agreement, a suretyship contract, or a deed of cession. In South Africa the right to equality and human dignity, as opposed to the classical theories of contract: pacta sunt servanda and the principle of freedom of contract, are supported by the Constitution of the Republic of South Africa Act 108 of 1996 which entrenched democratic values permeating all areas of the law including contract law. In this thesis the harmonisation of these classical theories of contract law and the constitutional values of human dignity and equality have been considered. As has been shown in a number of cases, notably those relating to the contracts of suretyship, cession in securitatem debiti, and mortgage, the current law regulating the relationship between the credit grantors and the credit receivers is in need of law reform to fall in line with the constitutional values of equality and human dignity. The greatest difficulty inherent in this area of the law is the reluctance of the courts to intervene at the instance of consumers. The courts would only intervene in the clearest of the cases, and would only do so in the public interest. In this thesis the current South African Law is considered in the light of the developments elsewhere. The tendency of credit providers to alter the terms of the contracts unilaterally and the growing number of conflicting decisions of the Provincial Divisions of High Court has also been considered. The writer also considers the role of the newly created Consumer Affairs Court.