Jaco Barnard-Naudé

Of Dorothy's dog, 'poststructural' fairy tales ... and the real : power, poverty and the general principles of the South African law of contract

Abstract South African precedent does not allow for the consideration of the validity or enforceability of a contract in terms of the good faith principle. Yet, the principle of good faith permeates the foundational ideals and the spirit of South Africa’s post-apartheid Constitution. After re-emphasising the by now trite point that all legal rules have distributive consequences and that the common law represents a set of political choices, the article discusses the philosophical history of good faith and defends it as the primary transformative ethical device of the general principles of contract law, arguing that an elevated status for good faith in contract is implicit in the post-liberal reading of the Constitution and the ills that such a reading seeks to address. With reference to the work of Michel Foucault, the article concludes that curial consideration of the question whether a party to a contract has abused her bargaining power, forms a critical part of the transfo mative work that contract law is (also) constitutionally mandated to do.

For a politics of presupposed equality: The struggle for sexual minority freedom in Africa

abstract This article relies on the thought of Jacques Rancière to plead for an emphasis on what Weeks (1999:36) refers to as a “moment of transgression” in the politics of struggle attendant on the emergence of the queer subject in Africa. As such, it argues that the queer subjects struggle in Africa should in the first place be approached and understood as a political struggle for equality, rather than or in addition to the prevalent emphasis on a legal struggle for the constitutional protection of human rights. Emphasising the political dimension – equality – of the emergence of the queer subject as a legal subject of human rights in Africa can circumvent popular Afro-essentialist objections that claims by sexual minorities for the recognition of sexual freedom (as part and parcel of their human rights) amounts to no more than a Western construct that does not befit Africa. The additional benefit resides in the fact that the focus advanced here allows the articulation of the queer subjects struggle in Africa without having to resort to the strategy of an identity politics (with all the pitfalls attendant on such a strategy). In addition, when the matter is approached from a strictly legal point of view, the equality that comes into view denotes a passive equality, an equality that is to be given or granted by the law. When, however, the matter is approached politically, an active notion of equality – an equality that is to be taken as part of freedom and as presupposed – becomes the focal point of the enquiry. The ultimate aim of this piece is to introduce the politics at stake in the queer subjects emergence in Africa through the lens of Rancières work and to draw attention to the political significance of his notion of a presupposed or axiomatic equality.