CityPress - - Front Page - CHARL DU PLESSIS charl.dup­lessis@city­press.co.za

Deputy Chief Jus­tice Dik­gang Moseneke says he will not re­spond to crit­i­cism lev­elled at the ju­di­ciary by se­nior tri­par­tite al­liance politi­cians, although he is con­vinced they have no fac­tual ba­sis. “I won’t re­spond to what politi­cians say. Frankly, I work for you and I ac­count to you,” Moseneke told a packed lec­ture hall at the Univer­sity of the Western Cape’s inau­gu­ral Law Dean’s Distin­guished Lec­ture on Fri­day.

Moseneke had been asked a ques­tion about the re­cent crit­i­cism of the ju­di­ciary by, among oth­ers, ANC sec­re­tary-gen­eral Gwede Man­tashe and SA Com­mu­nist Party leader Blade Nz­i­mande.

They said the ju­di­ciary was “reach­ing” into the ex­ec­u­tive and leg­isla­tive arms of state.

“Let me tell you, I’m not go­ing to an­swer any of those crit­i­cisms be­cause they have no fac­tual ba­sis, to put it very, very mildly,” said Moseneke.

The deputy chief jus­tice was speak­ing only two days af­ter for­mer Con­sti­tu­tional Court Jus­tice Yvonne Mok­goro also spoke out in de­fence of the ju­di­ciary.

Speak­ing at a lec­ture to hon­our the late for­mer ed­u­ca­tion min­is­ter Kader As­mal on Tues­day night, Mok­goro said she was still in shock over what ap­peared to be a bla­tant dis­re­gard for the court or­der to ar­rest Su­dan’s pres­i­dent, Omar al-Bashir.

Mok­goro said it was in­cum­bent upon the ex­ec­u­tive to im­ple­ment ju­di­cial de­ci­sions.

She quoted late Chief Jus­tice Is­mail Ma­homed when he stated that if court or­ders were dis­re­garded, “the courts could easily be re­duced to pa­per tigers with a fe­ro­cious ca­pac­ity to snarl and roar, but no teeth with which to bite and no sinews to ex­e­cute their judg­ments, which may then be mock­ingly re­duced to pieces of ster­ile schol­ar­ship, tooth­less wis­dom and pi­ous po­etry”.

Mok­goro said the fact that judges were not elected must be seen as an im­por­tant strength of the ju­di­cial sys­tem, rather than its weak­ness.

“For me, it re­in­forces the im­par­tially in­ter­ven­tion­ist and pro­tec­tive role of the courts.

“Here, there is no room for pop­ulism. Per­sonal views and po­si­tions are ir­rel­e­vant. That is the role man­dated to the ju­di­ciary by the Con­sti­tu­tion.”

She ad­mit­ted that judges were hu­man and not in­fal­li­ble. “How­ever, er­rors in law and fact can be ap­pealed to the high­est court through the hi­er­ar­chy of courts. That too is the case when a judge has over­reached her­self or him­self. That is the dis­ci­pline the rule of law re­quires of each lit­i­gant who comes be­fore the courts and is ag­grieved by court de­ci­sions.”

Moseneke said South Africa was in a pe­riod of tran­si­tion, but that his “own trust and faith still re­main”.

“I’m not about to cave in or give up, not just as a judge but as a South African.

“I think we’re go­ing to turn the cor­ner. I think we’re go­ing to come right and I think, over time, all of us will ma­ture in a va­ri­ety of ways in how we run gov­ern­ment, how we put peo­ple in po­si­tions of power, how we ap­point judges and how we train them. I think we are on a good wicket.” In the course of the lec­ture, Moseneke ref­er­enced sev­eral quotes by Nel­son Man­dela, who he said was a fa­ther fig­ure to him when he was im­pris­oned on Robben Is­land with the states­man at the age of just 15.

Moseneke said there would al­ways be ten­sion be­tween the ex­ec­u­tive, the ju­di­ciary and the leg­is­la­ture be­cause South Africa had an “in­ter­lock­ing” con­sti­tu­tional ar­range­ment that meant no branch of gov­ern­ment left the other un­touched.

“The branches of gov­ern­ment are not in com­pe­ti­tion with each other. Rather, they are sym­bi­otic, or so the Con­sti­tu­tion in­tends. They are part of a beau­ti­ful mo­saic that can only work if we bring our best selves to the fore,” said Moseneke.

He said much was made of rul­ings against the leg­is­la­ture and the ex­ec­u­tive when these were re­ally just a small part of the work that courts did ev­ery day.

Moseneke also said it was only fair to ac­knowl­edge that South Africa was a func­tion­ing democ­racy be­cause “by and large, we have made or­ders and the gov­ern­ment has com­plied”.

He said a “close read­ing and nu­anced un­der­stand­ing” con­firmed that South Africa’s courts had acted within the am­bit of the sep­a­ra­tion of pow­ers.

“I do not think our courts have crossed the line of the sep­a­ra­tion of pow­ers.

“If any­thing, our ju­di­ciary, over 21 years, has shown it has been metic­u­lous not to tread on the do­main of the ex­ec­u­tive or the leg­is­la­ture,” said Moseneke.

For Mok­goro’s speech, see page 3 of Voices


Deputy Chief Jus­tice Dik­gang Moseneke

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