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.
'Oh, what a tangled web we weave ...' hegemony, freedom of contract, good faith and transformation - towards a politics of friendship in the politics of contract
The article is an historical excavation of the hegemonic ordering in the South African law of contract in which freedom of contract remains the privileged fundamental value at the expense of good faith. The article argues for an increased role for good faith in the South African law of contract as a matter of constitutional congruence.
Hannah Arendt on Love and the Political: Love, Friendship, and Citizenship
This article explores the theme of love and the political in the thought of Hannah Arendt by examining her attitude toward such kinds of love as eros, philia, agape, cupiditas, caritas, compassio, fraternitas. Arendt generally regards love as unpolitical because of its inherent inclination to exclude the outside world. But she has shown a sustained interest in the relationship between love and the political. Arendt's concern for love is dictated by her search for a new, public, and artificial vinculum—or bond. This public bond, what Arendt calls amor mundi, is basically grounded in the notion of political friendship. I argue that amor mundi would be of more relevance, if it included not only political friendship but an element of eros as the craving for the durable world as well as two strands of agape—love of forgiveness and an enlarged neighborly love.