The question to which this study will attempt to find a satisfactory answer, is whether the new
Consumer Protection Act 68 of 2008 (CPA) has revived the abolished exceptio doli generalis.
The exceptio doli was introduced in about 66 BC by the praetor Gaius Aquilius Gallus. An
exceptio was a legal defence to a claim. The exceptio doli required the judge to take account of
the fraud of which the plaintiff had been guilty of at the time of concluding the transaction, or of
the dolus of which the plaintiff was guilty in actually instituting the action.
It appears that the provisions of sections 40, 41 and 48 of the CPA reaffirm the existence of the
exceptio doli generalis in the South African law of contract, since these provisions provide the
same function and outcome that defence did. The section that speaks to the heart of the exceptio
doli generalis, is section 40(1) which provides that a supplier or an agent of the supplier must not
use physical force, coercion, undue influence, pressure, duress or harassment, unfair tactics or
any other similar conduct, in connection with the supply of services to a consumer and also in the
negotiation, conclusion, execution or enforcement of an agreement.
Section 52 of the Act deals with contraventions of sections 40, 41 and 48 of the Act. It grants the
ordinary courts the power to declare agreements, in whole or in part, unfair or unconscionable.
That only the ordinary courts would have jurisdiction in respect of unfair contract terms, is not
stated unequivocally, but is implicit in the absence of any reference to the NCT or provincial
consumer courts in section 52. It is a well-known fact that the costs, risks and effort of court
action are just too high for ordinary consumers, including middle class consumers. For this
reason it is unlikely that this legislation in its current form will have a real impact on the
eradication of unfair contract enforcement. What is suggested, is an amendment to section 52 in
order to bestow jurisdiction on the NCT and the consumer courts as well may also make any
further order it considers just and
As an alternative to the amendment of section 52, it is submitted that the legislature should create
a statutory rule, because it seems that the exceptio doli generalis as well as the CPA are not up to
the task. What is suggested, is legislation that deals specifically and exclusively with
unreasonableness, unconscionableness and oppressiveness in contracts or terms of contract. The
enactment of legislation dealing specifically with the problems previously dealt with by applying
the exceptio doli generalis, will ensure that legal certainty is created as to the availability of a
remedy in circumstances where the enforcement of a contract is unfair. This is in accordance
with the proposal made by the South African Law Commission’s Project 47.