How do cultural values affect our perceptions of justice and security in relationship to policing co

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How do cultural values affect our perceptions of justice and security in relationship to policing co

The task is not to disguise equity or principle but to develop contractual principles in the image of the Constitution. The courts will not release him from the contract or make a better bargain for him.

Darwinian survival of the fittest, the law of nature, is also the law of the marketplace. Quite a number of commentators have written - sometimes very eloquently [5] - about the issue.

I doubt that I can match the level of insight or, sadly, the eloquence brought to the debate by some more seasoned and esteemed contract law experts, but I hope that this piece can provide yet another passionate plea for our apex courts to settle the question once and for all, and to provide the necessary and long-overdue guidance to the lower courts, legal advisors, academics, law students, and - last but not least - all of us who enter into contracts on a daily basis.

The root of the problem seems to stem from that series of well-known and much-maligned [6] judgments by the Supreme Court of Appeal or SCA in the past decade which dealt with good faith or arguments regarding substantive fairness, ranging from Brisley, [7] Afrox, [8] and Napier, [9] through to Bredenkamp, [10] Maphango [11] and Potgieter.

In the midst of sometimes vociferous criticism of the SCA's arguably overly-conservative approach to good faith in these cases, some have pinned their hopes for law reform on the Constitutional Court or CC.

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Sadly, the first and to date, only contract law matter to reach our highest court and to be considered on the merits - the landmark case of Barkhuizen v Napier, [13] which has provided such fruitful grist for the academic mill - saw both a controversial [14] majority and some divergent minority judgments which focused largely on different although related issues.

Yet - interestingly - we need to bear in mind that the majority of the court, by way of Ngcobo J, appeared to expressly leave open the door for future development of good faith in contracting possibly implying that the status quo as emanating from the SCA may very well be wrong.

I am not the only person who believes that the CC may actually presently be champing at the bit to rewrite our law on good faith in contracts, and there is a likelihood that events may overtake me and that an appropriate case to facilitate such development of the law may reach the CC even before this piece is published.

While some have been heard to lament the "constitutional colonization of the common law" [19] - a misplaced but hardly original response by lawyers so well schooled or mired?

In the light of the fact that recent decades have seen the concept of "fairness" assume central importance in respect of certain specific types of contracts compare, for example, the prominent role attached through the means of labour legislation to substantive fairness in respect of various aspects of the employment contract; compare also the role of fairness as encapsulated in consumer contracts via the more recent Consumer Protection Act[25] it seems strange that a concept such as good faith - which deals so fundamentally with issues of fairness and fair dealing between individuals [26] - should remain so elusive or under-valued in the general common law of contract.

After all, it has elsewhere been observed that "the doctrine of good faith is the legal equivalent of a chameleon - it takes on the characteristics of its environment". Accordingly, the time remains ripe for the courts to finally settle the question of the proper role and importance of good faith in our law of contract, and, as mentioned, I believe that we are poised to see such development sooner rather than later.

Ironically, however, I will suggest that we might find some food for thought and even encouragement in this regard in a most unlikely place - a recent judgment in the English law of contract, [29] a jurisdiction that has never been a poster child for the recognition of a robust role for good faith in contracting.

I would like the readers to ask themselves the following question: Why does the South African law of contract - after 20 years of democracy under one of the most progressive constitutions in the world - not currently recognise a robust role for good faith, when the jurisdiction of New York the quintessential "concrete jungle", which many lay observers would probably view as synonymous with the "law of the jungle" in commercial dealings has for quite some time ascribed a very important role to good faith in contracting?

Be that as it may, I have no intention to deny the risks inherent in an over-emphasis on vague notions of good faith, especially the fears of legal uncertainty which have so occupied the minds of our appellate judges. I will argue that the SCA's reservations regarding this aspect of good faith may have been overstated to date, and that we can fruitfully - and safely - negotiate a greater role for this principle without risking an end to contract law and our system of commerce.

Probably rather paradoxically, I would suggest that those sometimes-maligned, "vague and woolly" constitutional values provide us with a way to circumvent the claims of potential uncertainty on the basis of what you and I - in our constitutional dispensation [34] - believe to be the 'done thing' in concluding and enforcing contracts.

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In the following section I will briefly examine the current approach of our courts to the role of good faith in contracts, as well as the courts' stated reasons for this approach.

This overview will be brief and I will just skim the surface, seeing that many others have written in much more depth about the existing legal position. I will then, in section 4, suggest an understanding of good faith which I believe is in line with the Constitution, and I will argue that in terms of such an understanding of a robust good faith doctrine we can avoid some of the dangers that the judges of the SCA have warned us about in this context in recent years.

Finally, in section 5, I will include some concluding thoughts on the pressing need for law reform in this regard. According to this extended meaning, it has an objective content which includes other abstract values such as justice, reasonableness, fairness and equity. Ngcobo J, in the Constitutional Court's judgment in Barkhuizen, confirmed that good faith encompasses the concepts of justice, reasonableness and fairness.UN News produces daily news content in Arabic, Chinese, English, French, Kiswahili, Portuguese, Russian and Spanish, and weekly programmes in Hindi, Urdu and Bangla.

How do cultural values affect our perceptions of justice and security in relationship to policing co

Our multimedia service, through this new integrated single platform, updates throughout the day, in text, audio and video – also making use of quality images and other media from across the UN system. Home > Resources > Criminal Justice Research > Police officers’ attitudes, behavior, and supervisory influences: An analysis of problem solving* Police officers' attitudes, behavior, and supervisory influences: An analysis of problem solving* self-assessed knowledge of community policing, and perceptions of the levels of cooperation from.

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