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’

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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

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