LAW

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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”.

PHOTO: TE­BOGO LETSIE

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

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