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Robert Sharrock & Lienne Steyn, The Problem of the Illiterate Signatory: Standard
Bank of South Africa Ltd. v. Dlamini, 26 S. AFR. MERCANTILE L.J. 150 (2014).

ALWD 7th ed.

Robert Sharrock & Lienne Steyn, The Problem of the Illiterate Signatory: Standard
Bank of South Africa Ltd. v. Dlamini, 26 S. Afr. Mercantile L.J. 150 (2014).

APA 7th ed.

Sharrock, R., & Steyn, L. (2014). The problem of the illiterate signatory: standard
bank of south africa ltd. v. dlamini. South African Mercantile Law Journal, 26(1),
150-161.

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Robert Sharrock; Lienne Steyn, "The Problem of the Illiterate Signatory: Standard
Bank of South Africa Ltd. v. Dlamini," South African Mercantile Law Journal 26, no. 1
(2014): 150-161

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Robert Sharrock & Lienne Steyn, "The Problem of the Illiterate Signatory: Standard
Bank of South Africa Ltd. v. Dlamini" (2014) 26:1 S Afr Mercantile LJ 150.

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Robert Sharrock and Lienne Steyn, 'The Problem of the Illiterate Signatory: Standard
Bank of South Africa Ltd. v. Dlamini' (2014) 26(1) South African Mercantile Law
Journal 150

MLA 9th ed.

Sharrock, Robert, and Lienne Steyn. "The Problem of the Illiterate Signatory:
Standard Bank of South Africa Ltd. v. Dlamini." South African Mercantile Law Journal,
vol. 26, no. 1, 2014, pp. 150-161. HeinOnline.

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Bank of South Africa Ltd. v. Dlamini' (2014) 26 S Afr Mercantile LJ 150
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 Case note

THE PROBLEM OF THE ILLITERATE

SIGNATORY: STANDARD BANK OF SOUTH
AFRICA LTD v DLAMINI
ROBERT SHARROCK
Professor, University ofKwaZulu-Natal (Pietermaritzburg)

LIENNE STEYN
Associate Professor,University ofKwaZulu-Natal (Howard College)

I INTRODUCTION
The decision of D Pillay J in StandardBank of South Africa Ltd v Dlamini
2013 (1) SA 219 (KZD) underlines the need for courts to adopt a clear
and principled approach to the problem of an illiterate person who signs
a written contract without being misled in any way by the other party
and without requesting any explanation of the contents of the docu-
ment.

II THE FACTS
The defendant (Dlamini) bought a second-hand 2004 Toyota Corolla
motor car for R85 745 from the plaintiff bank (the Bank). Dlamini is
described in the judgment as a 52-year-old, functionally illiterate
labourer who could not understand English, with only a standard one
level of education (para 23). The contract signed by the parties was the
Bank's standard-form credit agreement, governed by the National
Credit Act 34 of 2005 (NCA). Dlamini dealt with a salesman (Mthetwa)
employed by Starlight Auto Sales (Starlight), a car dealership, which
acted as the Bank's agent for the purposes of the sale. The contract was
concluded at Starlight's premises. Another employee of Starlight
(Marimutho) - the Bank's 'designated agent' (para 21) - signed the
contract on behalf of the Bank. Dlamini paid a deposit (R15 000
according to Dlamini, R13 000 according to the Bank's copy of the
contract: para 14) and took delivery of the car. While Dlamini was
driving the car away, it began 'jerking and smoking' (para 6). He
consulted his cousin, a mechanic, and they discovered that the car had
ILLITERATE SIGNATORY

been rebuilt following an accident. It broke down soon thereafter. Four

days after buying the car, Dlamini had it towed back to Starlight's
premises. He informed Mthetwa that it had malfunctioned and that he
did not want it or any other vehicle from the dealership (para 1). He
demanded a refund of his deposit, but to no avail. The vehicle was later
repaired by Starlight's in-house mechanic (para 17) and was still in its
possession shortly before the trial.
Clause 10.3 of the contract provided for termination of the contract
by voluntary surrender. This clause entitled the Bank to sell the vehicle,
account to Dlamini, and claim any shortfall due by him under the
contract (para 5). Clause 10.6 mirrored the provisions of sections
121(1), (2) and (3)(b) of the NCA. It said that if the contract had not
been entered into at the Bank's registered business premises, Dlamini
could, within five business days after signing the contract, terminate it
on notice to the head office of the Bank's vehicle and asset finance
division at a specified fax number, and return or tender the return of the
vehicle. The clause stated further that ifDlamini terminated the contract
in this way, he would be obliged to pay rental for the use of the vehicle for
the time that he had it and any reasonable costs the Bank might incur in
having the vehicle returned or restored to a saleable condition. The
clause did not mention the import of section 121(3) (a) of the NCA: that
Dlamini would be entitled to a refund of the price on return of the
vehicle (para 3).
Four months later, not having received any refund, Dlamini arranged
for a letter of demand to be sent to Starlight claiming payment of the
sum of R15 000 and cancellation of the agreement. After a further four
months, the Bank sent Dlamini an incorrectly addressed notice in terms
of section 129 of the NCA demanding payment in terms of the contract.
There being no response, the Bank issued summons against Dlamini in
the High Court. It asked for confirmation that the contract had been
terminated and (inexplicably) an order for the return of the vehicle and
payment of the costs of locating, removing, storing and disposing of the
vehicle (para 2). The Bank maintained that, although Dlamini had been
entitled to terminate the contract in terms of clause 10.6, he had not
done so effectively because he had omitted to notify the Bank in the
manner prescribed by the clause and by section 121(2) of the NCA read
with regulation 37 of the National Credit Regulations (NCRs) (as to
which see GN R713 GG 28893 of 31 May 2006). What Dlamini had done,
therefore, so it was argued, was terminate the contract by voluntary
surrender in terms of clause 10.3 of the contract.
Dlamini denied that he had done this. He insisted that he had
returned the car because it had broken down and he wanted his money
 (2014) 26 SA MERC LJ

back. He had been unaware of clause 10.6. He had dealt only with
Mthetwa, and neither Mthetwa nor anyone else had explained the terms
of the contract to him (para 7). Mthetwa's evidence was that it was not
his function to explain contracts to customers, and that, after agreeing to
buy the car, Dlamini had spent 25 minutes with Marimutho, completing
application forms for credit. Dlamini denied having had any dealings
with Marimutho, who did not give evidence.
Pillay I accepted Dlamini's version of events. She found that there was
'[n] ot a whiff of evidence' that Dlamini was unable to pay for the vehicle,
or that he had returned it for any reason other than its being incapable of
being driven (para 25). There was also no evidence that anyone had
explained the terms of the agreement to him (paras 15 and 21). All he
had been told about the documentation was that it was about the sale of
the car and that he would be required to pay instalments from the
following month onwards (para 22). He had become so excited about
the prospect of buying the car that he had paid little attention to the
repayment plan and had simply trusted the Bank to deduct reasonable
instalments (para 23).
Pillay I found that Mthetwa had been aware throughout that Dlamini
was illiterate. She noted that Mthetwa later acknowledged that
Dlamini could 'neither read nor see [sic] the terms of the agreement'
(paras 19 and 20). The court considered that Dlamini's inability to read
and lack of sophistication were 'obvious' and this was confirmed by the
difficulty which he had experienced in the witness stand when dealing
with the documents (para 23).
Pillay I concluded that the Bank and its agent had caused Dlamini to
enter into a credit agreement without reading, interpreting or explaining
the material terms to him, which he neither knew nor understood. The
issue to be decided, therefore, was '[c] ould [Dlamini] nevertheless in law
be held to have assented to the agreement [in other words, was he legally
bound to the agreement] by virtue of his signature?' (ibid).

III THE BANK'S CASE

The Bank's contention in this regard was that Dlamini was bound by
virtue of the common-law principles of quasi-mutual assent and caveat
subscriptor. The Bank evidently relied upon the following cases (cited in
a footnote to para 27): Brink v Humphries & Jewell (Pty) Ltd 2005 (2) SA
419 (SCA); George v Fairmead(Pty) Ltd 1958 (2) SA 465 (A); National
and Overseas DistributorsCorporation(Pty) Ltd v Potato Board 1958 (2)
SA 473 (A); Sonap Petroleum (SA) (Pty) Ltd (formerlyknown as Sonarep
ILLITERATE SIGNATORY

(SA) (Pty) Ltd) v Pappadogianis1992 (3) SA 234 (A) 2391-240B; and

Hartley v Pyramid Freight (Pty) Ltd t/a Sun Couriers 2007 (2) SA 599
(SCA).

IV THE JUDGMENT
Pillay J commenced her consideration of the Bank's argument by
pointing to the connection between the preambles to the Constitution
and the NCA, and the constitutional right to equality. The judge then
embarked on a lengthy (and, with respect, somewhat rambling and
disjointed) discourse (paras 27-56) to determine 'the 'interface between
the Constitution, the NCA and the common-law principles of caveat
subscriptor and quasi-mutual consent' (para 27). The main points to
emerge from this part of the judgment may be summarised as follows.
* 'The founding values of the Constitution include human dignity,
achieving equality, advancing human rights and non-racialism'
(para 28).
* The Constitutional Court has repeatedly endorsed a substantive, as
opposed to a formal, approach to equality. Accordingly, any national
legislation aimed at preventing or prohibiting unfair discrimination
must be interpreted in ways that achieve substantive effect (paras 29
and 30).
* The NCA, like the Consumer Protection Act 68 of 2008 (CPA), falls
into the category of equality legislation. It is intended to 'reverse
historical socio-economic inequalities and adjust the imbalances'
although '[s]ocio-economic status and illiteracy are not listed
grounds of discrimination'. The preamble to the Act says that one of
its purposes is 'to promote a fair and non-discriminatory market-
place for access to consumer credit and for that purpose to provide
for the general regulation of consumer credit and improved stan-
dards of consumer information'. Section 3 indicates that the pur-
poses of the Act include 'promoting equity in the credit market by
balancing the respective rights and responsibilities of credit provid-
ers and consumers'. Further purposes of the Act, according to
section 3, are to address and correct imbalances in negotiating power
between credit providers and consumers by providing the latter with
(i) education about credit and consumer rights; (ii) adequate
disclosure of standardised information in order to make informed
choices; and (iii) protection from deception and unfair or fraudulent
conduct by credit providers. Section 2 of the NCA requires that the
Act be interpreted in a manner that gives effect to the purposes of
section 3. (See paras 31-5.)
 (2014) 26 SA MERC LJ

* Sections 63 and 64 of the NCA entitle a consumer, to the extent that

this is reasonable, to receive documents in an official language which
he or she reads or understands and in the prescribed form, where
applicable, or in plain language (paras 46-7). On a strict interpreta-
tion, neither section assists an illiterate consumer, but interpreted
purposively, the sections 'embody the right of the consumer to be
informed by reasonable means of the material terms of the docu-
ments he signs' (para 48). Since the transaction took place in
Pinetown, KwaZulu-Natal, an area where isiZulu is the predominant
African language, and, given the nature of the business of second-
hand car sales, the Bank should have anticipated that it would be
dealing with historically disadvantaged customers and should have
had better measures in place to ensure that they were aware of their
rights and responsibilities (paras 49-50).
* Regulation 30 of the NCRs lays down requirements in relation to the
content, form and style of credit agreements. The credit agreement
in question, comprising a two-page A4 size document in size eight
font, with an additional five pages of terms and conditions, an
acceptance form and an authority to release goods form, and a clause
containing a list of definitions usually found in complex agreements
and legislation, was 'an unappetising, formidable read', even for a
lawyer. For a labourer such as Dlamini, 'who did not read, write or
understand English, there might just as well have been no written
agreement at all'. He 'was in a worse position than a purchaser who
signed one page of an agreement, but who was sued in terms of a
clause appearing on the reverse of that page which had not been sent
to him' (referring to the facts of Home Fires Transvaal CCv Van Wyk
andAnother 2002 (2) SA 375 (W)). (See paras 52-3.)
* The 'rights and protections ... for consumers under the NCA
develop and ameliorate the potentially harsh impact on consumers
of the common-law principles of caveat subscriptor and quasi-
mutual assent relied on by the Bank' (para 54). The manner in which
these principles are applied is 'uncertain', as evidenced by the
disagreement, regarding findings of fact and inferences to be drawn,
between the majority and minority judgments, in Brink v
Humphries &Jewell (supra), and the trial court and the appeal court,
respectively, in Sonap v Pappadogianis(supra). 'T]he NCA mini-
mises the casuistry, unpredictability and uncertainty of judicial
opinion by setting the norms and standards for the communication
and form of valid credit agreements' (para 55).
* However, the common law nevertheless remains relevant, and the
test to be applied, developed through the cases, is 'did the party
ILLITERATE SIGNATORY

whose actual intention did not conform to the common intention

expressed, lead the other party, as a reasonable man, to believe that
his declared intention represented his actual intention?' (Sonap v
Pappadogianissupra 2391-J). 'The norms and standards... [which
the NCA] prescribes for a valid agreement readjust and clarify the
rights and responsibilities of the parties, the onus of proof and,
consequently, the statutory context in which the common-law test
applies' (para 56).
Turning to the Bank's argument, Pillay J noted that Dlamini's defence
was not that he did not intend to conclude the contract, but that he did
not know that he had to notify Standard Bank in a prescribed manner of
his intention to rescind it. Knowing about this procedural requirement
would not, in fact, have stopped him from signing the agreement (para
57). However, as pointed out in Davids en Andere vAbsa Bank Bpk 2005
(3) SA 361 (C), the public interest demands that a complicated
document be explained to the signatory, especially if signing it could
result in drastic consequences (para 58). Pillay J reviewed (paras 59-62)
certain cases in which the form or get-up of the contract document was
misleading ( Home Fires Transvaalv Van Wyk supra at 38 11; Diners Club
SA (Pty) Ltd v Livingstone and Another 1995 (4) SA 493 (W) 495-6;
Mercurius Motors (Pty) Ltd v Lopez 2008 (3) SA 572 (SCA)). She
concluded that '[aipplying the common-law principles of caveat sub-
scriptor and quasi-mutual consent', the Bank could not hold Dlamini
bound to the agreement (para 64). She added (ibid):
'The unpalatable form and get-up of the agreement would have
been immaterial to Mr Dlamini because of his illiteracy. That was all
the more reason why the Bank should have ensured that its agent
explained the material terms to Mr Dlamini. As Mr Dlamini was
ignorant of the prescribed notice requirements of the agreement,
there was no mutual consent as regards this term.'
Although the lawfulness of the credit agreement had not been raised
by either of the parties, Pillay J considered it necessary to pronounce
upon this issue. She reasoned as follows (paras 64-7).
In terms of section 90(1) of the NCA, a credit agreement must not
contain an unlawful provision. A provision is unlawful if its effect is
to defeat the purposes or policies of the NCA or deceive the
consumer (s 90(2)(a)(i) and (ii)), or if it directly or indirectly
purports to waive or deprive a consumer of a right set out in the
NCA, or set aside or override the effect of any provision of the NCA
(s 90(2) (b)(i) and (iii)).
 (2014) 26 SA MERC LJ

" The agreement in the present matter was deceptive in that it was
selective in its disclosure of Dlamini's section 121 rights regarding
the rescission of the contract. Furthermore, the agreement breached
Dlamini's rights, under sections 63 and 64, to be informed of the
contents of the agreement and to have an agreement that complies in
form with regulation 30 of the NCRs. These transgressions skewed
the agreement in favour of the Bank.
" Distorting the balance created in the NCA in this way was unlawful.
It defeated the purpose and policy of the NCA and rendered the
entire agreement unlawful.
" The court is ordinarily required to sever an unlawful provision from
the agreement, or alter it to render it lawful, if it is reasonable to do so
(s 90(4)(a)). However, the form and get-up of the agreement in the
present case were inconsistent with the NCA and its regulations, and
the Bank had not interpreted, translated or explained its material
terms, and therefore severance was not an option. The entire
agreement had to be set aside.

V COMMENTS
Pillay J evidently overlooked the principle that for a mistake (in this case,
ignorance) regarding the contents of a contract to be legally relevant, it
must be material, in the sense that it must play a material role in the
mistaken party's decision to enter into the contract. See, for example,
National and Grindlays Bank Ltd v Yelverton 1972 (4) SA 114 (R) 117;
TrustBank ofAfricaLtdvFrysch 1977 (3) SA 562 (A) 587; Kahn vNaidoo
1989 (3) SA 724 (N) 727; Davids v ABSA Bank supra at 366; cf also
Stephen v Pepler 1921 EDL 70 at 86-7; Gounder v Saunders and Others
1935 NPD 219 at 226; Bird v Sumerville andAnother 1961 (3) SA 194 (A)
204; Ocean Cargo Line Ltd v F R Waring (Pty) Ltd 1963 (4) SA 641
(A) 652; Landsbergen v Van der Walt 1972 (2) SA 667 (SR) 668-9; and
Lake and Others NNO v Caithness 1997 (1) SA 667 (E) 672. Dlamini's
ignorance of the contents of the document clearly played no role in his
decision to contract, because he would have signed the document even if
he had known what it said. Khan v Naidoo (supra) was directly in point,
and Pillay J should have followed it. In that case, an illiterate woman who
could barely sign her name was held bound by her signature on a
suretyship agreement. Didcott J (as he then was) accepted that for the
signer of a written contract to avoid liability on the grounds of mistake,
the signer must show at least that the mistake mattered - that he or she
would not have signed if he or she had realised what the document
provided. The judge rejected the woman's defence that she had had no
ILLITERATE SIGNATORY

idea what she was signing, because, even if this were true, the evidence
'suggest[ed] quite strongly that an appreciation of the document's
import would not have stopped [her] from signing it' (at 727-8). In the
present case, Dlamini's appreciation of the contents of the document
would not have deterred him from signing, and so his ignorance was not
a ground for avoiding liability.
Another aspect of Pillay J's judgment that is open to criticism is her
conclusion that because the Bank or its agent failed to explain the
material terms of the agreement to Dlamini, he could not be held liable
by virtue of his signature. Applying the principle of quasi-mutual assent
(as Pillay Jpurported to do), it is not at all clear why the Bank or its agent
was under a duty to explain the material terms of the agreement to
Dlamini. There is no general duty to warn a signatory of what is in the
document before he or she signs it (see, for example, Constantia
Insurance Co Ltd v Compusource (Pty) Ltd 2005 (4) SA 345 (SCA) para
19; Hartley v PyramidFreight t/a Sun Couriers supra para 9), and there
was nothing in the facts of the present case to suggest that the Bank
misled Dlamini in any way regarding the nature or effect of the
document, or ought to have known that Dlamini was mistaken (as
opposed to ignorant) about what the document provided. The courts
have accepted that willingness to sign a written contract without reading
it, or without having it explained where the signatory cannot read the
document, creates the reasonable impression of preparedness to assume
liability for whatever terms are in the document, at least in so far as they
are reasonably to be expected in that type of contract (see, for example,
Goedhals v Massey-Harris & Co 1939 EDL 314 at 321-3; Bhikhagee v
Southern Aviation (Pty) Ltd 1949 (4) SA 105 (E) 109-10; Mathole
v Mothle 1951 (1) SA 256 (T) 259; George v Fairmead supra at 472;
Moshal Gevisser (Trademarket)Ltd v Midlands Paraffin Co 1977 (1) SA
64 (N) 68; Dlovo v Brian PorterMotors Ltd t/a PortMotors Newlands 1994
(2) SA 518 (C) 526-7; FourieNO vHansen and Another 2001 (2) SA 823
(W) 832; Home Fires Transvaal v Van Wyk supra at 381; see also Tilden
Rent-a-CarCo v Clendenning[ 1978] 83 DLR 3d 400 at 404-9). The cases
to which Pillay J referred do not support her view that the Bank owed
Dlamini a duty to explain the document. They merely illustrate the
application of the principle of quasi-mutual assent to signed documents.
None deals with the position of an illiterate signatory, and none provides
support for the proposition that an illiterate signatory may avoid liability
if he or she signed without being informed what the document provided.
This is not to suggest that Dlamini would necessarily have been bound
by virtue of the principle of quasi-mutual assent, had his ignorance of
 (2014) 26 SA MERC LJ

the contents of the contract been material. Where the other contracting
party knows that the signatory has not read the contract, the reasonable
impression created by the act of signature is merely assent to terms
which can reasonably be expected in the type of contract in question.
See, for example, Aetiology Today CC t/a Somerset Schools v Van Aswegen
and Another 1992 (1) SA 807 (W) 810; Dlovo vBrian PorterMotors Ltd
t/a PortMotors Newlands supra at 525; FourieNO vHansen supra at 832.
Clause 10.6, being such as to render the transaction illegal (as found by
Pillay J), was presumably not reasonably to be expected in that type of
contract.
Pillay J did not provide a clear reason why the Bank's failure to explain
the contents of the document to Dlamini allowed him to avoid liability.
A factor which she evidently considered important in this regard was
that the provisions of the NCA entitle a consumer to receive documents
in a language that he or she understands and in the prescribed form or in
plain language. Was the judge possibly thinking that the principle of
quasi-mutual assent has been modified by these provisions (interpreted
purposively or so as to achieve substantive effect) so that an illiterate
consumer who signs a credit agreement is not bound unless the credit
provider explained the terms of the document to him or her before
signature? If so, it is suggested that her interpretation is untenable. The
Act nowhere expressly requires credit providers to explain the content of
their credit agreements to consumers, and it seems almost inconceivable
that if the legislature had wanted to impose so onerous and far-reaching
a requirement on credit providers, it would not have spelt this out in
explicit language.
Another factor which Pillay J evidently regarded as important is that
the founding values of the Constitution include human dignity and
equality, and the Constitutional Court has repeatedly favoured the
adoption of a substantive approach to equality. Was Pillay J perhaps
thinking that because of an illiterate signatory's right to equality, the
doctrine of quasi-mutual assent needs to be modified to ensure that
the signatory is not held bound unless the terms of the document have
been explained to him or her prior to signature? Before making such a
modification, it would be necessary to conduct the two-stage inquiry
that applies where it is sought to develop the common law in the light of
the objectives set out in section 39(2) of the Constitution (see, for
example, Carmichele v Minister of Safety and Security and Another
(Centrefor Applied Legal Studies Intervening)2001 (4) SA 938 (CC) paras
39-41). And in this regard it may be argued that imposing a blanket
'explanation' requirement on credit providers would be very onerous
ILLITERATE SIGNATORY

and probably counter-productive. The additional difficulty and cost of

making such contracts would inevitably lead to a general reluctance on
the part of credit providers to enter into credit transactions with illiterate
persons. This would amount to discrimination against illiterate persons
and would go against a primary purpose of the NCA: namely, to make
credit accessible to the historically disadvantaged.
It is suggested that there is no need to tinker with the principle of
quasi-mutual assent to deal with the problem of the illiterate signatory,
because having no general 'explanation' requirement does not leave the
signatory entirely unprotected.
" Section 40(2) of the CPA provides that 'it is unconscionable for a
supplier knowingly to take advantage of the fact that a consumer was
substantially unable to protect [his or her] own interests because of
... illiteracy, ignorance, inability to understand the language of an
agreement, or any other similar factor' (s 40(2)). An illiterate person
who has been overreached by an unscrupulous creditor provider
may invoke section 40 to obtain rescission of the contract or other
relief (see, for example, Jacques du Plessis 'Protecting consumers
against unconscionable conduct: Section 40 of the Consumer Pro-
tection Act 68 of 2008' (2012) 75 THRHR 26 at 33). Obviously, this
remedy is available only if the contract is one which is governed by
the CPA: see, for example, section 5(2)(d) of the CPA, which
provides that the Act does not apply to any transaction that
constitutes a credit agreement under the NCA, although the goods
or services that are the subject of the agreement are not excluded
from the ambit of the CPA.
" The common law accepts that it is undesirable to allow a party to
enforce a contract which he has brought about by conduct which the
law regards as improper, for example, misrepresentation, duress and
undue influence. In such a case, the innocent party is given the right
to rescind the contract. There is case authority (albeit limited) which
suggests that exploitation of bargaining weaknesses may be regarded
in the same light (see, for example, Konitsky v Freeman (1893)
Hertzog 135 at 137; Blackburn v Mitchell (1897) 14 SC 338 at 342-3;
Eerste Nasionale Bank van Suidelike Afrika Bpk v Saayman NO 1997
(4) SA 302 (SCA) 318; cf Gerolomou Constructions (Pty) Ltd v Van
Wyk 2011 (4) SA 500 (GNP) para 24). The courts have yet to
formulate a precise principle.
" It is accepted that a contractual term not per se illegal will not be
enforced if, in the circumstances, enforcement would be contrary to
public policy as where, for example, it would unjustifiably infringe a
 (2014) 26 SA MERC LJ

constitutional value or offend against some community value or

norm. In Bredenkamp and Othersv StandardBank ofSouth Africa Ltd
2010 (4) SA 468 (SCA) para 47, Harms DP stated:
'[E]nforcement of a prima facie innocent [contractual term]
may implicate an identified constitutional value. If the value
is unjustifiably affected, the term will not be enforced.'
In determining this issue, illiteracy may well be an important factor,
bearing in mind that public policy is informed by the all-embracing
value of ubuntu (see, for example, S v Makwanyane and Another
1995 (3) SA 391 (CC) paras 130-1, 223-7, 237, 307-13, 516 ; Port
Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC);
Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012
(1) SA256 (CC) paras 50, 71-2).
It is well established that inequality of bargaining power is a material
factor when determining whether a contract or its enforcement is
contrary to public policy (see, for example, Afrox HealthcareBpk v
Strydom 2002 (6) SA 21 (SCA) 35; Barkhuizen v Napier supra para
59; UnitingReformed Church, De Doorns v Presidentof the Republic of
South Africa and Others 2013 (5) SA 205 (WCC) paras 33-6). The
mere fact that one contractant is illiterate is clearly not, in itself,
enough to invalidate the contract, but it is a factor which, together
with other relevant factors, may render one or more provisions of
the contract, or enforcement of the contract, contrary to public
policy.
Of course, if the courts were to have a change of heart and accept that
South African contract law recognises an independent principle of
good faith, this would provide a further possible basis for protecting
an illiterate signatory (see AM Louw 'Yet another call for a greater
role for good faith in the South African law of contract: Can we
banish the law of the jungle, while avoiding the elephant in the
room?' (2013) 16(5) PotchefstroomElectronicLJ 45).

VI CONCLUSION
The facts of Standard Bank v Dlamini (supra) provided an ideal
opportunity to clarify and pronounce upon the legal position of the
illiterate signatory. Regrettably, the court's treatment of this difficult
issue is neither clear nor adequate. This is unfortunate, as important
decisions that lack a clear ratio are apt to be misconstrued or used by
litigants to support indefensible propositions. It is suggested that
modifying the principle of quasi-mutual assent to impose a general duty
ILLITERATE SIGNATORY 161

to explain on suppliers when contracting with illiterate persons should

be avoided, because it would be completely unworkable in practice. The
solution should rather be sought elsewhere, for example, by granting
relief in terms of section 40 of the CPA (if applicable), by allowing
rescission for pre-contractual exploitation of bargaining power, or by
finding that the contract (or its enforcement) is offensive to public
policy or contrary to good faith.