Land, evictions and homelessness Affirmative action Estate law: helped scrap apartheid estate law as an attorney Separation of powers Independence of constitutional institutions Hawks Public Protector Powers of the president Antiretroviral drug treatment Sexual orientation rights Gay marriages Socioeconomic rights, including education and pensions
Moseneke has been an activist judge on land, burrowing into section 25 of the Constitution to excavate the most expansive judicial vision of land reform and restitution. “For me, it is a big thing and I wrote about it a lot. Landlessness inevitably led to homelessness and the challenge persists. We were duty-bound to find ways to ameliorate the impact of the relentlessness of poverty.”
Moseneke also wrote judgments affirming employment equity, which is under attack from conservative civil society in numerous court cases.
The first big challenge the count faced to its independence was when the Treatment Action Campaign applied to the court to compel the government to provide antiretroviral drugs to HIV-positive women.
“For us, as a court, we were called upon to say ‘you may not refuse access to antiretrovirals’. Why? Because the Constitution says so [in the notion of access to healthcare]. And, today, what do we have? One of the best regimes of public treatment around the world.”
So began a more challenging period for the court as it was called upon to intercede in executive decisions. There were many. Cases that contested the legislation to set up the Hawks (which the court found did not enshrine independence in the corruption-busting unit); the appointment of former national director of public prosecutions Menzi Simelane (found to be irrational); the judgment on the powers of the Public Protector (confirmed by the court and in which it found President Jacob Zuma to have breached his constitutional responsibility). In this period, the debate over judicial overreach has raging.
Cases have been heard on how the state deploys resources – in a cornerstone judgment, the court ordered massive changes to how pensions were paid. And now, said Moseneke, we are in an era of “lawfare”, where party political battles are being staged in court. Two spring to mind: the so-called spy tapes case brought by the DA, and the Economic Freedom Fighters referring the Nkandla issue to court.
“He is the intellectual heart of the court,” said Maleka, adding: “His is work of applied craft and the mastery of loneliness [to spend long hours reading and synthesising the record].”
Nine years ago, at his 60th birthday party, Moseneke blew out his candles and blew his chance of becoming chief justice appointed by President Jacob Zuma – a person with whom he does not enjoy the warm relations he had and has with South Africa’s other three leaders. A thin-skinned governing party took apoplectic exception to his statement that judges serve the public, not political parties. The rest is recent history.
On Thursday night, Moseneke repeated the principle again: judges serve the interests of people, not of ruling elites or of political parties – all or any of them. His ethos is threaded into a part of his farewell speech. “Law is an instrument and a tool to produce just and defensible outcomes or it becomes an ass.”
And then he ended as he began. “Too many people are poor and marginalised. Unable to reach their potential. We have to try harder.”
So, what now? There is a personal memoir coming in the next few months followed by a judicial one.
Moseneke believes that despite the turmoil we see around us, South Africa is in a good place, where everyone swears by the Constitution and agrees to play by the rules.
“What they do [after that] is quite another thing, but nobody has said we must renege from it,” he said.
There may be problems, he said, but “over time, our people will self-correct and history backs us on that one”.
A MAN GO WELL Deputy Chief Justice Dikgang Moseneke during an interview at the Constitutional Court on Thursday. He is hanging up his robe after 15 fruitful years