Does the Consumer Protection Act 68 of 2008 have the effect of reviving the abolished exceptio doli generalis?

Abstract

The historical legal exception, the exceptio doli generalis was widely applied and accepted in the South African law of contract as a justifiable defence by a defendant to recind unfair contracts or contractual terms during the twentieth century. Our courts implemented openended or abstract values of equity and fairness in the substantive law in order to allow a defendant to counter claim for the enforcement of an unfair contract. In spite of the wide application of this defence by our courts, it was put to an end in Bank of Lisbon and South Africa Ltd v De Ornelas in 1988. The outcome of this judgment created a lacuna in our law for court to consider criteria of fairness and equity in their deliberations when delivering judgments. The universal doctrine of unconscionability which advocates considerations of fairness and equity appeared to have influenced a move towards consumer legislation on a global scale and ultimately to the enactments of the Consumer Protection Act (CPA), introduced in 2008 and operational since 31 March 2011. The CPA contains several provisions which appear to revive the application of defences akin to the abolished exceptio doli generalis such as the codification of the consumer's right to "fair and honest dealing" and the right to "fair, just and reasonable terms and conditions" to name but a few. The question that arises and which is explored herein is whether the rights afforded by the CPA constitute the revival of the principles that used to apply in terms of the exceptio doli generalis.