“We paid continuous lip service to the kind of state and governance we deserved and did little or nothing about it. Look at us now,” reflected retired judge and former deputy chief justuce Dikgang Moseneke.  

Moseneke made the remarks during his keynote address at the Sanef fundraising gala dinner on 21 October, held at the Killarney Country Club in Johannesburg.  

“It is not possible to give an account of our 30 years of transition without the gargantuan role, albeit contested, of the courts and the media… At the outset of our democracy, certain things were clear if not incontestable.    

 “We would entrain a democratic government underpinned by one person one vote with equal worth. Fundamental rights and freedoms would be inviolable. Prime of these would be life and human dignity. We would be governed by laws and not by the whims of women and men,” said Moseneke.     

He further argued that at the inception of democracy, public representatives would adopt measures that would alter the social and economic lot of each if not most citizens, but this has seemingly not been the case. 

“Government [in] all its spheres would be efficient, effective, and prompt and responsive in pursuing public good. Government would make accessible public goods such as public health, education, water, housing and transport electricity. Our young would receive universal primary education and quality secondary tuition,” Moseneke charged.  

To ensure that this web of public duties would be fulfilled, Moseneke cited the establishment of  Chapter 9 institutions which would, among other things, seek to police due diligence, good and ethical government. 

“I conclude with a heavy heart that the revolution has failed. The quest to alter power relations in society in favour of the excluded and marginalised masses of our people has failed. The high political and social ideals of those of us who were part of our glorious struggle have by and large come to nought.   

“We all knew that we could not change the trajectory of inequality and poverty without a competent developmental state. We paid continuous lip service to the kind of state and governance we deserved and did little or nothing about it. Look at us now,” said Moseneke.   

Time to press reset on South Africa

The retired judge maintained that while little progress had been made, the country ought to reset in many ways, including making changes to the Electoral Amendment Bill.  

Last week, Parliament voted in favour of the Electoral Amendment Bill to bring independents into national and provincial elections, this as civil society organisations wrote to MPs to reject it over inadequate consultations, bizarre measures like pre-context support thresholds and failure to fully reform the electoral system.  

“After 30 years our country must reset its fate, future, and vision. We cannot possibly prescribe the same medicine when the malady persists or perhaps gets worse. We are called to press the reset button. One of the things we are pressed to change is plainly our electoral system. The entire public debate and fallout on the amendment to the electoral bill seem to say it would be difficult to invite incumbent public representatives to fashion an electoral reform that might threaten their tenure. It may be that one needs a fresh cohort of public representatives before meaningful electoral reform would be possible,” said Moseneke.  

Moseneke also tore into the dire state of the country’s municipalities, most of which the office of the Auditor-General said were on the brink of collapse. He lamented this, post the State Capture era. 

 “Every other municipality faces severe inability to perform its most basic statutory obligations,” he said. “It cannot be that post State Capture revelations of misgovernance and accountability abound. Our circumstances of governance appear truly dire.”  

Critical role of the (factionalised) media

The retired judge lauded the critical role played by journalists and the media, while maintaining a long road lay ahead.    

“It seems plain that journalists will have to continue to do their damndest to investigate and inform of these high levels of misgovernance that seem to be accompanied by lack of care and empathy by public leaders. I do not mean the empathy of politicians trotting out before cameras when they visit families of victims of this unending avalanche of violent crimes in our society.”  

To conduct their work, journalists ought to adhere to the press codes of ethics, built on constitutional rights to freedom of expression and the prohibition of discriminatory conduct. 

“The Code places significant value on journalists’ role of serving society.   The media may advocate their own views on controversial issues. In doing so, they must distinguish between fact and opinion and cannot misrepresent, distort or suppress relevant facts. Ordinarily, professional misconduct will include plagiarism, distortion of the facts, unfounded accusations and defamation.”  

Moseneke remarked that currently, the ruling elite appeared to be highly factionalised in the face of power contests. “Disturbingly, journalists appear to be factional too. The kind of angry words hurled from one media house to another is truly disturbing. Reads from certain stables have predictable villains and heroes. Particularly, after State Capture in a fractured political space, journalists would do well to practice their craft within ethical limits even in the face of insults or criticism from social media.”

Role of the overburdened judiciary 

Moseneke said the role played by the judiciary, which has often come under public scrutiny, had been beneficial to the country’s democracy. There was nothing untoward about certain people disagreeing with the decisions of the courts.  

“As we speak our courts carry a heavy burden of caseloads. Nearly all political, economic, and social contests end up with judges. And yet judges must endure the derision and unwarranted criticism of those who use the courts most.  

“It is not an exaggeration that without efficient, effective, and truly independent judiciary we would all enter into the dark ages of wanton destruction and misrule.”  

Moseneke, who served in the judiciary for more than 15 years, suggested that the judiciary ought to be defended amid attacks and accusations of being captured. In the same breath, he argued that judges maintain the highest judicial values and ethics, and remain faithful to our Constitution and the rule of law. 

“In conclusion. I repeat my deep sadness that our revolution has failed. A small prosperous black middle class, as someone recently argued, is not and cannot be the mark of what we set about to create – a new, inclusive and equitable society. The vast majority of the masses of this land are in desperate circumstances and we have failed to create what one calls a ‘deep state’,” he added. DM