Justice Moseneke and the Emergence of a New Master-Signifier in the South African Law of Contract

by | Sep 23, 2019 | ACTA, ACTA 2017

Justice Moseneke and the Emergence of a New Master-Signifier in the South African Law of Contract

Authors Jaco Bernard-Naudé

ISSN: 1996-2088
Affiliations: Professor of Jurisprudence in the Department of Private Law, University of Cape Town; British Academy Newton Advanced Fellow in the School of Law, University of Westminster
Source: Acta Juridica, 2017, p. 247 – 269

Abstract

Relying on the psychoanalytic discourse elaborated in Jacques Lacan’s Seminar XVII, the article traces the emergence of what it terms a new ‘master-signifier’ in the South African law of contract. This master-signifier is ‘good faith’ and it is contended that the jurisprudence of Emeritus Deputy Chief Justice Moseneke played a crucial role in the now ongoing emergence of ‘good faith’ as a master-signifier in our law of contract. Such emergence, moreover, is paralleled by the displacement of the master-signifier which has, until now, enjoyed hegemonic status in our law of contract: freedom of contract. It is particularly Justice Moseneke’s bold judicial statements about ‘good faith’ in the Everfresh judgment that has served to successfully counter attempts by the Supreme Court of Appeal, after the Constitutional Court’s judgment in Barkhuizen, to preserve, on the one hand, ‘freedom of contract’ as the master-signifier of our law of contract and, on the other, to prevent the (diachronic) emergence of ‘good faith’ as a new master-signifier. Indeed, Justice Moseneke’s Everfresh judgment paved the way for the subsequent direct reliance by the Constitutional Court in Botha v Rich on ‘good faith’ as a master-signifier.

Imagining Equity and Inclusion: South Africa’s International Economic Politics and Reflections on the Writings of Justice Dikgang Moseneke

by | Sep 23, 2019 | ACTA, ACTA 2017

Imagining Equity and Inclusion: South Africa’s International Economic Politics and Reflections on the Writings of Justice Dikgang Moseneke

Authors Erika George

ISSN: 1996-2088
Affiliations: Samuel D Thurman Professor of Law, University of Utah’s SJ Quinney College of Law
Source: Acta Juridica, 2017, p. 227 – 246

Abstract

In honour of Justice Dikgang Moseneke, this essay takes up his invitation to imagine an ethos consistent with South African Constitutionalism, one which could promote economic justice. This essay explores how the tools of international economic law as utilised by South Africa could serve as a means of transformation to advance the end of a more inclusive economic globalisation. South Africa’s trade policies and participation in international business and human rights policy initiatives are offered as illustrations of a shift towards asserting interests aligned with the country’s constitutional economic justice commitments. First, emphasising Justice Moseneke’s writings outside of his rulings the essay explains the imperative of economic justice for South Africans. Next, the essay situates the strategic policy choices South Africa has made to better align the country’s law and policy with respect for economic and social rights in response to pressures from foreign investors. By ending bilateral investment agreements with some countries and engaging in efforts to advance a binding international agreement on business obligations to respect human rights South Africa is demonstrating that a different approach to engaging with the global marketplace consistent with the calls Justice Moseneke has made in his writings is possible. This essay concludes with a call for legal professionals and policy makers to imagine ways to apply the principles of participation and transformation contemplated in South Africa’s Constitution to international economic law. The unique features of South African law and society hold promise for promoting both economic development and social justice.