Law 101 - private law is that part of the law which regulates the relationships between individuals. A lot of the rules of private law are aimed at protecting the weaker party in a transaction and public policy plays the same role, but to what extent does, and perhaps more importantly, should private law be used to protect individuals against their own stupidity? (When I say stupidity I don't mean getting 10% in wood work, I mean signing things which you don't understand, which is something we all do.)
This is of course not a new question. Afrox, Brisley and Barkhuizen are all cases which dealt with the enforceability of contractual terms freely entered into by individuals (I say freely, but of course some are more equal than others when it comes to standard term contracts.) and all involving a challenge on the enforceability of those terms on Constitutional grounds. In Barkhuizen the majority held that it would not be appropriate to test the validity of a term against the Constitution directly, but instead that it still a matter of determining whether the term is against public policy. In the years B.C. (Before Constitution) preference was given to sanctity of contract above other public interests. This approach was approved by implication in Barkhuizen says Tomas Floyd in Chapter 7 of The Law of Contract in South Africa (2010) at 176.
Having said that I also recall Cameron AJ (as he then was) saying (at last year's 'saamtrek' of Students for Law and Social Justice) that the facts which were placed before the court in each of these cases did not support a finding of invalidity based on unequal bargaining position and such same considerations - hint hint. The fact remains that our courts have always followed a conservative approach when it comes to the invalidation of contracts which were freely concluded (some say not part of the court's inherent equitable jurisdiction, but I will not get into what Justinian would have done).
But not for long - in comes Part G of the Consumer Protection Act which, by the look of things, gives the courts the power to strike down terms which are unfair, unreasonable or unjust. The courts must look at the nature of the parties, their relationship, their relative capacity, education, experience, sophistication and bargaining position.
So yes, it looks like we are going to start protecting people who fall prey to the small print (I might finally be able to cancel that gym contract. Oh no, no retrospective effect *&^$%##@*.). But the question remains, should we? Stay tuned...