Miscellaneous | The Barkhuizen Case

Mr Barkhuizen, who lived in the upmarket area of Constantia in Cape Town, crashed his Mercedes. Two years after the accident, after recovering from a coma and a lengthy period of hospitalisation, he wrote to his insurers to claim for damage to his car. The small print of his voluminous motorcar insurance contract stated that if the insured person did not institute proceedings within 90 days of the accident, he would lose his right to have his dispute with the insurance company resolved by the courts. Was this a purely private matter in which, under the long-established law of contract, he had signed away his right to sue after 90 days? Or was the Court required to develop the law of contract to make it fairer and just for consumers? Relying on the principle of pacta sunt servanda (the terms of the contract must be upheld), the majority of the Court said he had lost his right to sue because the 90 days had passed. Justice Ngcobo said that, on the facts of the case, he had waited far too long to say that principles of fairness and justice should operate in his favour. In a lengthy dissent, Justice Sachs challenged the notion of sanctity of contract, saying that there was nothing sacred about clauses in tiny print in standard form contracts which the insured person could never be expected to read and understand. Supporting views articulated by Judge Dennis Davis, he held that in our new constitutional era based on human dignity, equality, and freedom, it would be against public policy to enforce contractual terms that were manifestly unfair to the weaker party in the contractual relationship. He commented that the rich are also entitled to rights, which would be even more important for poor people who didn’t have access to lawyers and whose vehicles might have been old jalopies.