“My obligations are what is good for the people as enunciated by the Constitution and other laws, and not what is the wish of the ruling elite. Now that is a very ordinary statement,” said retired Deputy Chief Justice Dikgang Moseneke in a Daily Maverick webinar on Wednesday.
Moseneke, who sat on the Constitutional Court from 2002 to 2016, was discussing his new book, All Rise: A Judicial Memoir, his second after the 2016 release of his memoir, My Own Liberator.
In 2008, he was criticised by some within the ANC after Jacob Zuma, who was embroiled in multiple legal issues, became ANC president in Polokwane. At the time, Moseneke said the role of a judge was not about “what the ANC wants or what the delegates want”, but what was good for the people.
Moseneke told Daily Maverick’s Stephen Grootes that he may have erred by mentioning “delegates”, “but the point remains good. I am not beholden unto the ruling elite. I am beholden to the Constitution and other laws of the country.”
“That is a very important statement and I repeat it over and over again in the book,” said Moseneke.
“The book tries hard to show you that there is an inevitable interaction between the goings-on of the elite on the one hand, and the judicial function on the other,” he said.
As advocate Anton Katz noted in his review of the book, South Africa does not have a tradition of judges publishing accounts of their time on the Bench, unlike in the United States.
“It’s a little like going to circumcision school in the African tradition. You may not say what happens there… they say,” said Moseneke.
“And I thought, I’m going to lift the judicial gown.”
In his book, Moseneke, who is always measured in his language, doesn’t detail the debates he and his fellow justices had in the Constitutional Court, but he offers a high-level view of the constitutional issues in South Africa’s evolving democracy.
He described it as a call to civil accountability. “I’m saying let’s all rise in our thoughts; let’s rise in our appreciation of what our entitlements are,” he said.
“We need people to rise on all those issues, and they can’t look to the state only because of what we have done. We have inducted a narrative that says ‘delivery’ – a horrible word… you wait at home and someone brings delivery to you.”
“We are our own liberators and we have to turn it around.”
“You can’t build RDP homes with tenders forever and ever. Einstein, how stupid can you be to do the same thing and produce no different results?”
He called his book, “kind of a final cry to say – hey, please guys, we have to be good citizens. We have to hold business to account, public to account, wielders of public power to account, the media to account, but we really should not rest on our laurels as we did 1994… everybody demobilised.”
The former deputy chief justice touched on challenges in the judicial system, including the hollowing out of state institutions and the seemingly unending issues involving Western Cape Judge President John Hlophe.
Moseneke repeated his invitation to former justice minister Jeff Radebe to explain how and why institutions in the judiciary were hollowed out under his watch. He said Cabinet members had an individual and collective responsibility to act in the public’s best interest, even if they have to disagree with the president.
“Of course, they’ll lose their job but that’s what the Constitution expects of them.”
Moseneke was reluctant to comment on the issues surrounding Hlophe – he’s just happy he doesn’t have to deal with them – but he suggested the process of disciplining judges was inadequate, making it easy for them to evade accountability.
“Judges ought to submit to their own ethical code. What’s more, they have to submit timeously, promptly and with sincerity to the disciplinary processes that have been set up. Unfortunately, they are quite defective,” he said.
Shortly after his retirement, Moseneke was appointed to lead the Life Esidimeni arbitration following the deaths of 144 psychiatric patients who were moved by the Gauteng government out of the health facility and into NGOs and community care.
“There are these high values, you know, of industry, of sustenance, of perseverance, of being caring of others, of generally wanting to have a reformed and reconstructed society of respecting and advancing our common humanity. Those things matter to me, and I think they matter to most people,” he said.
“And then you run into these totally vulnerable people and you hear all of that… in the end, it just revealed how far down the line we had gone in an evolving inhumanity… that was quite scary – more people died in Life Esidimeni than in Marikana; in fact, than in Marikana and Sharpeville put together.”
Moseneke said he occasionally missed his judicial role but he remains active as an arbitrator in high-level corporate disputes. His real passion, however, appears to be encouraging and inspiring young lawyers.
He called on them to flood the justice system and use their energy to rebuild institutions that had been hollowed out.
“The moral of the story to young people is: always try to do good,” he said. DM
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