Everyone’s favourite
Last week was an emotional whirlwind of farewell functions, tributes and back-toback interviews for former deputy chief justice Dikgang Moseneke.
“I don’t know what you are going to ask me that I haven’t already been asked,” he says.
Through its judgments in the Nkandla and Vodacom/Please Call Me cases, the constitutional court has captured the hearts and imaginations of South Africans like never before.
Live television coverage and blow-byblow accounts of court hearings via Twitter have brought the court into people’s living rooms and kitchens. Its justices have ceased being mysterious, distant figures.
In Moseneke’s case, there is an additional factor. He is the justice who was treated unjustly. He should have been chief justice but he was overlooked by President Jacob Zuma. In a nation that feels similarly hard done by and overlooked, many can identify.
Throw in the sacrifices he has made — imprisoned on Robben Island in his midteens — the erudition, charisma and charm, and one can see how, in just one week, Moseneke has gone from being “DCJ” to “DC-bae”, everyone’s favourite.
Moseneke says he is “bewildered” by the public outpouring of love that greeted his retirement from public office. “I’ve been trending for five days,” he says. Still, he looks a bit fatigued, a bit interviewed-out. This is his third interview of the day.
The accepted wisdom as to why he was overlooked for chief justice is the remark he made at his 60th birthday party in 2007, shortly before the ANC’s elective conference in Polokwane — that his job required him to do what was best for the people, “not what the ANC wants or what the delegates want”.
But the remarks were in truth innocuous. Once he explained the context — at a meeting with the ANC and Chief Justice Pius Langa — the ANC accepted it was so and they supposedly buried the hatchet. The apparently singular determination not to have him as chief justice remains a mystery.
He says he simply does not know. It may have been a “preference that is genuine” for someone else; it may have been “part of the shrapnel coming out of Polokwane and that contestation . . . I really don’t know what the answer is,” he says.
He has no “personal antipathy” with Zuma. When he was allowed five days off his banning order to go on honeymoon to Durban, “guess who picked me up at the airport? JG Zuma.”
Moseneke says it is not a big issue; it does not matter now. “The more I didn’t understand its rationality, the more I thought I should just get down and do what I know best.”
Despite writing 50 judgments in his 14 years at the highest court, he wishes he had been able to contribute more to the jurisprudence around land expropriation and restitution.
Moseneke has publicly lamented — more than once — that restitution of land has not been the subject of much constitutional litigation, given its fundamental importance.
He has “written my heart out” about evictions, about “people having nowhere to go; and this is so precisely because they’ve never had land that they call their own, however large, however small.”
Yet the highest court has yet to pronounce on property rights in the context of historical land dispossession or grappled with what just and equitable compensation means under the constitution.
Moseneke refers to “my little threeroomed home in Atteridgeville”. “That’s where you get reared; that’s where you connect; that is where you find identity.
“When you talk about privilege and exclusion and identity, I don’t know how you do it without [talking about] land.”
Last year Moseneke chaired the Judicial Service Commission (JSC) — the body that interviews and recommends judges for appointment — in place of Chief Justice Mogoeng Mogoeng, who was overseas for work.
The JSC’s approach to transformation — the constitutional injunction that the judiciary must broadly reflect SA’s race and gender composition — has been the subject of heated debate.
Moseneke says race and gender are important — “if you had 11 Christians on the bench of the constitutional court and they were male, they would be likely to be less balanced than if you had people drawn from all sorts of persuasions”. But race and gender are not everything. “Fidelity to the constitution is far more important than race and gender, in my view,” he says.
The JSC’s appointment process has recently come under even closer scrutiny because of astonishing revelation of Pretoria high court judge Mabel Jansen’s Facebook messages about rape and black culture.
In a string of comments — some made privately, some publicly to journalist filmmaker Gillian Schutte — Jansen claimed that rape was part of black culture — “and gang rapes of baby, daughter and mother a pleasurable pastime”. Yet her JSC interview was genial, getting nowhere near revealing these prejudices. How did it happen? How many undetected racist judges are there?
Moseneke, who sits on the JSC’s judicial conduct committee, is reluctant to talk about Jansen’s case.
But he says, as a general proposition: “I don’t know how you are going to have a perfect sieve that keeps all the baddies out.”
“They took a chance with me also,” he says.