Justice Moseneke and the Emergence of a New Master-Signifier in the South African Law of Contract
Authors Jaco Bernard-Naudé
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.