The Current Debate on the Reversal of the Onus of Proof When Enforcing Restraint-of-Trade Agreements: Much Ado About Nothing?
Ever since South Africa became a constitutional state in 1994, a recurrent debate has been conducted in the jurisprudence and academic writing on whether the onus of proof with regard to the reasonableness of a restraint of trade should be shifted back to the party who wishes to enforce the restraint. This debate has been prompted by the express protection of the principle of freedom of trade as a constitutional value and has to a large extent been reduced to a straight shoot-out between the two public interests. This reduction is a continuation of the pre-1994 jurisprudence. This debate is examined critically.
The Constitutionality of the Onus of Proof When Enforcing Restraint-of-Trade Agreements: An Appropriate Evaluation of the Common-Law Rules
When South Africa became a constitutional state in 1994, an animated debate arose about the possible reversal of the burden of proving the reasonableness of a restraint-of-trade clause as between the parties. Only a brief summary of this debate is necessary as introduction to the current article as I critically explored it in greater detail in a previous article. The current debate was initially stimulated by the fact that freedom of trade is expressly protected as a fundamental right while pacta servanda sunt apparently is not protected at all. In this debate the outcome of the contest of strength between these two public interests still determine which party carries the burden of proof with regard to the reasonableness of a restraint inter partes.
La inseguridad jurídica en normas de contratación estatal
It is established by different studies that the issue of government procurement has been marred by several factors, the test objective to publicize these factors, we take as starting point the constant conflict between the branches of government to try and organize this subject; will collect and analyze diverse regulatory and case material in order to achieve evidence and demonstrate the different concepts of constant change that produces excessive regulation of the subject procurement and is in turn causing rapid changes that result in legal uncertainty for our law on the Contract Status.