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.

Moseneke and Economic Justice

by | Sep 23, 2019 | ACTA, ACTA 2017

Moseneke and Economic Justice

Authors Judge Fayeeza Kathree-Setiloane

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

Abstract

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.

Transformative Vision in Liberal Rights Jurisprudence on Racial Equality: A Lesson from Justice Moseneke

by | Sep 23, 2019 | ACTA, ACTA 2017

Transformative Vision in Liberal Rights Jurisprudence on Racial Equality: A Lesson from Justice Moseneke

Authors E Tendayi Achiume

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

Abstract

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.

Restitutionary Measures Properly Understood and the Extension of the Quota Ban – Locating SARIPA in the s 9(2) Van Heerden Framework

by | Sep 23, 2019 | ACTA, ACTA 2017

Restitutionary Measures Properly Understood and the Extension of the Quota Ban – Locating SARIPA in the s 9(2) Van Heerden Framework

Authors Lauren Kohn, Raisa Cachalia

ISSN: 1996-2088
Affiliations: Senior Lecturer, Department of Public Law, University of Cape Town; Attorney of the High Court of South Africa; Legal Consultant at Caveat Legal (Pty) Ltd; Researcher at SAIFAC (South African Institute for Advanced Constitutional, Public, Human Rights and International Law), University of Johannesburg; Attorney of the High Court of South Africa; Legal Consultant at Caveat Legal (Pty) Ltd
Source: Acta Juridica, 2017, p. 146 – 178

Abstract

On 2 December 2016, the Supreme Court of Appeal (‘SCA’) handed down judgment in the matter of Minister of Justice and Constitutional Development v South African Restructuring and Insolvency Practitioners Association (‘SARIPA’). This is a significant judgment on the test for assessing the constitutionality of a so-called ‘affirmative action’, or restitutionary, measure within the meaning of section 9(2) of the Constitution. SARIPA invites us to revisit the original formulation of this test as propounded by Moseneke J in the seminal judgment of Minister of Justice v Van Heerden. The policy in issue in SARIPA embodied a quintessential quota system aimed at effecting transformation of the insolvency profession. Both the High Court and SCA found this mechanical, alphabetised roster system for the appointment of insolvency practitioners to be excessively rigid for want of any general discretion to depart from the scheme. For this reason – on the strength of earlier dicta in South African Police Service v Solidarity obo Barnard and then Solidarity v Department of Correctional Services – it was held to fall foul of the section 9(2) test. Interestingly, these earlier cases were decided in the context of the Employment Equity Act, 1998 (‘EEA’), which expressly prohibits quotas. The decision in SARIPA to extend the quota ban to circumstances outside the purview of the EEA presents a noteworthy development in our law and ought to be welcomed for its congruence with the first principles of the Van Heerden test which are grounded in a purposive appreciation of a restitutionary measure as a flexible and context-specific tool for the achievement of substantive equality. Unfortunately, the laudable outcome in SARIPA was reached without clear and rigorous judicial justification. In this article we thus analyse and locate SARIPA within the s 9(2) Van Heerden framework for assessing the constitutionality of a redress measure, in order to propound a more compelling justification for the SCA’s conclusion on the constitutional repugnancy of quota systems outside the EEA context.

Reimagining Power Relations: Hierarchies of Disadvantage and Affirmative Action

by | Sep 23, 2019 | ACTA, ACTA 2017

Reimagining Power Relations: Hierarchies of Disadvantage and Affirmative Action

Authors Sandra Fredman

ISSN: 1996-2088
Affiliations: Professor of the Laws of British Commonwealth and the USA, Oxford University; Director of the Oxford Human Rights Hub; Fellow of Pembroke College, Oxford
Source: Acta Juridica, 2017, p. 124 – 145

Abstract

The South African Constitution has embraced affirmative action as an aspect of substantive equality from its inception. Nevertheless, it remains a challenging concept. Because affirmative action measures tend to redistribute existing jobs or benefits, rather than widen the pool of benefits, they inevitably create competition between individuals. When legal challenges of affirmative action measures come from privileged applicants, the rationale for preferring members of disadvantaged groups is easy to derive from the aims of substantive equality. However, recent cases have brought to the fore the potential of competition between disadvantaged individuals. Section 9(2), in permitting measures ‘designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination’ does not give a metric for distinguishing between degrees of disadvantage, or different kinds of disadvantage. Affirmative action expressly recognises the link between status, such as gender or race, and class, in the sense of socio-economic disadvantage. One of its aims is therefore clearly redistributive. However, this paper argues that status should not be regarded as simply a proxy for socio-economic disadvantage. In other words, race, gender and disability cannot simply be collapsed into class. It is argued in this paper that there are also other core mutually reinforcing aims of substantive equality to complement the redistributive element: to redress stigma, stereotyping, prejudice and violence; to facilitate voice and participation; and to accommodate difference and transform underlying structures. Affirmative action measures need to be calibrated to address all of these dimensions of substantive equality simultaneously. Stigma and ongoing racial prejudice need to be addressed, but at the same time, attention must be paid to the ongoing class divisions within status groups. Most importantly, it is necessary to examine the extent to which affirmative action can genuinely bring about structural change, rather than simply changing the racial or gender composition of existing structures. By applying a more nuanced analytic framework to affirmative action cases, it is possible to come to more principled, transparent and appropriate ways of addressing different degrees and types of disadvantage.