The end of a historic era
As Deputy Chief Justice Dikgang Moseneke takes leave of the Constitutional Court, we must remember that ‘judges serve the interests of people, not of ruling elites or of political parties’
EveryI’VE BEEN OVERLOOKED [FOR THE POSITION OF CHIEF JUSTICE] NOT TWICE BUT TRICE. BUT IT CAN’T BE THAT THE ONLY WAY TO MAKE A CONTRIBUTION TO OUR LAND AND TO OUR PEOPLE IS TO BE TITLED
time Dikgang Moseneke’s father climbed on the boat that took him away from Robben Island, where his 16-year-old son was imprisoned, he would cry. His mother, Karabo, would not.
“She saw it as a moment to get through. My mother taught us to soak up pain in life,” Moseneke said at his farewell dinner this week as he took leave of the Constitutional Court, where he has worked for 15 years, 11 as deputy chief justice.
Mme Moseneke, now 91, cut a regal figure at the dinner, where two former presidents (Thabo Mbeki and Kgalema Motlanthe) came to bid farewell to the South African judicial colossus who has helped shaped postapartheid constitutional law from his perch on Constitutional Hill, Johannesburg.
The former jail has been an appropriate home for the activist prisonerturned-judge. His disciplinarian father would often tell the young Dikgang: “Go tla siama ngwanake [My child, it will be okay some day].” And so it is. We interview Moseneke in his office surrounded by portraits of his six grandchildren, whom he and his wife, Khabonina, live for. His children and close extended family took pride of place with the profession’s finest silks and as many judges as could be squeezed into the farewell marquee on Thursday night.
About his family, Moseneke said: “The significance of this platform is it gives you a launching pad to go out and make it happen – to serve on a public platform.”
His faith is a similar platform. At the farewell function were five of Moseneke’s pastoral counsellors, two of whom were white, a point he highlighted with a laugh and some pride.
During the many hard moments of life under apartheid and in prison, his mother would turn her family to God. “Let us pray. If you don’t believe, son, I do. Let us pray.”
His was the law of struggle. An instrument “to kick down every door of oppression in my way”, he said. There were many doors. The legal profession made it hard for black attorneys to become advocates; the estate laws had one set of rules for black and another for white.
With his protégé, Vincent Maleka, now a top silk, Moseneke successfully got these overturned as a way of honouring his father, in whose name the case was brought.
As a lawyer, the young Moseneke trawled the prisons looking to represent detained Umkhonto weSizwe, Apla and Azanla fighters languishing in apartheid’s miserable jails.
“We went there as ambulances of the revolution,” he remembers. He was inspired by AP Mda, Mohandas Gandhi, Griffiths and Victoria Mxenge, Oliver Tambo, Nelson Mandela, Pius Langa and Robert Sobukwe. “I found the crisscross between law and social justice fascinating,” he said this week.
Not every judge has had his arm twisted into service by two presidents. Mbeki used Moseneke’s comrade Mojanku Gumbi to nag the lawyer who had turned corporate titan.
“My idea [for life] was more like a township notion that ‘hey, get out there and get something and pay the debts and the bonds and things’.” He always intended to sit on the Bench, but not so soon. Business life was fun and Moseneke held top positions at Telkom, Nail and other companies. Then Mandela stepped in. At Thursday’s farewell, the judge did a decent impersonation of Mandela telling him: “Dikgang, your people need you.” That was it. The natty suits gave way to the regal green robe embossed with red that Constitutional Court judges don.
“I can’t imagine my life now without being a judge of this court,” said Moseneke this week. “When I try to rewind and think about these 15 years as a judge, I am unable to think of something that would have filled up my life and impute to it in the way that my role here has proven to be.”
The Constitutional Court is non-hierarchical and its 11 judges sit in a college of equals. “My judgments were to be looked at by the 10 colleagues. The quality of the reasoning, the language, the internal logic … your colleagues are your internal permanent continual peer review mechanism.”
The court’s first years were transformative and reshaping, and it often did the work of striking down laws that were unconstitutional in a new order. Capital punishment was outlawed. Traditional law was harmonised with the Constitution’s commitment to gender equality. The Constitution’s clauses on sexual orientation rights led to significant cases on related rights, most notably gay marriage.
He chuckled at this point, remembering a call after the judgment legalising gay marriage. “I was summoned by a collection of abafundisi and bishops, and things including the cardinal from KwaZulu-Natal, and all of them said: ‘Explain yourself.’ I came to a hall and the place was full. They set me up.”
The governing party, he said, stood behind the court judgments on all the big social transformations its judgments led to. JUDGES CAN’T BE, AS KARL MARX OFTEN SUGGESTED, A MERE EXTENSION OF THE RULING ELITE. THE JUDICIAL FUNCTION CANNOT BE A TAGALONG ON CURRENT ORTHODOXY. IF IT WERE, ITS PRIMARY FUNCTION WOULD BE TO PROTECT CLASS INTERESTS THE CONSTITUTIONAL COURT HAS NINE BLACK JUDGES AND IF IT WAS A DUMP, THE WHOLE WORLD WOULD LAUGH. BUT WE ARE REPORTED ON AND CITED AROUND THE WORLD, AND WITH GREAT PRIDE. SO THIS IS PART OF THE JOY