ISSN: 1996-2088
Affiliations: Justice of the Supreme Court of Appeal
Source: Acta Juridica, 2017, p. 285 – 288
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ISSN: 1996-2088
Affiliations: Former Justice of the Constitutional Court of South Africa
Source: Acta Juridica, 2017, p. 273 – 284
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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
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.
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
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.
ISSN: 1996-2088
Affiliations: Judge Fayeeza Kathree-Setiloane is a judge of the High Court (Gauteng Local and Provincial Divisions). She acted as a Justice of the Constitutional Court from July to December 2017. In 2015/2017 she acted as a Judge of the Labour Appeal Court (LAC) and, in 2016, she acted as a Judge of the Supreme Court of Appeal
Source: Acta Juridica, 2017, p. 205 – 226
Moseneke probes in his memoir: ‘[H]ow, within the discipline of our Constitution, do we collectively reconfigure the social structure of our country? What structural changes to the economy are necessary to create a wider spread of access to productive existing and new assets? Where would the access to the use of land be located in that debate? Closer to home, and crucially, how might the unemployed and poor underclass escape the constraints of capital and management skill and join economic production?’ This paper recounts and celebrates Justice Moseneke’s unique understanding and vision of the transformative project of the Constitution. It then considers his views on the political and economic challenges facing South Africa in achieving economic justice and the role of, and the challenges facing, the judiciary within the framework of transformative constitutionalism. The paper then considers the role that substantive equality, access to productive credit, property ownership, education and support, and land reform play in the attainment of a just economic order. In doing so, it measures the socio-economic circumstances of the poor and vulnerable against the transformative vision of the Constitution and concludes that 20 years on, our constitutional project has failed to meet its core objective of transforming the socio-economic plight of the majority of South Africans. The paper then argues that the fault is not with the Constitution itself, but with a failure of political will and conduct. It cites lack of skills and government support, dead capital, corruption, wasteful expenditure and abuse of power as the foremost contributors to the denial of socio-economic rights to the majority of South Africans. It argues that the Constitution provides the framework, and it is for the state together with an active citizenry to secure these promises.
ISSN: 1996-2088
Affiliations: Assistant Professor of Law, UCLA School of Law, Research Associate, African Centre for Migration and Society, Witwatersrand University, JD Yale Law School
Source: Acta Juridica, 2017, p. 179 – 202
This essay juxtaposes Deputy Chief Justice Moseneke’s judgment in Barnard with the Campbell judgment of the Southern African Development Community (‘SADC’) Tribunal, to underscore the vital role of judges in the quest for substantive racial equality in southern Africa. This essay situates Barnard in an antisubordination tradition. It calls attention to Justice Moseneke’s transformative vision of substantive racial equality and the doctrinal path he forges to this end. It then argues that Campbell — which should be read in important part as an affirmative action case — represents a missed opportunity for setting the region on an analogous course. On the specific issue of racial discrimination, Campbell’s rejection of the relevance of historical racial subordination and its lack of doctrinal nuance in assessing racial discrimination risk charting a course towards formal notions of equality that Barnard rightly repudiates. By making this argument, this essay offers the first detailed legal critique of Campbell as an affirmative action case.