Abstract
This study investigates the impact of Artificial Intelligence (AI) on South African contract law, which has traditionally been based on principles of freedom, voluntariness, and equality. The introduction of AI-automated drafting, predictive negotiation, and algorithmic decision-making poses challenges within South Africa's socio-economically unequal landscape. These AI-driven processes have the potential to obscure genuine consent and reinforce dominance. This dissertation explores how elements such as algorithmic asymmetry, digital nudging, and automated standard-form contracts challenge principles of offer, acceptance, consent, and capacity.
This study evaluates the Consumer Protection Act (CPA), Electronic Communications and Transactions Act (ECTA), and National Credit Act (NCA). Through an analysis of constitutional case law, this dissertation argues that the principle of pacta sunt servanda cannot be upheld as absolute within a constitutional democracy. To address these issues, the study proposes the following measures: a. Doctrinal reforms: Recognise algorithmic manipulation as undue influence and classify opaque outputs as misrepresentation. b. Legislative amendments: Implement transparency obligations within the CPA and ECTA. c. Regulatory reforms: Perform bias audits and shift the evidentiary burden to AI deployers.
The study concludes that South African contract law must evolve to ensure that technological advancements enhance, rather than undermine, genuine consent and substantive fairness.