Moseneke: state must forge plan on higher education

Dikgang Moseneke, one of the country’s top legal minds, had a critical role in shaping the constitution. In 1963, as a 15-year-old PAC activist, Moseneke was sentenced to 10 years on Robben Island. In this extract from his memoir, ‘My Own Liberator’, he r

MY first festive season since Robben Island came and went off enjoyably but rather quickly. My New Year’s resolution was not obscure. I had had a full six months since my release to catch my breath, but I could not loiter forever. I had to start a career or find a job. I had worked many years but never before for a salary. I simply did not know where to start. I had a matric certificate and two university degrees, and still had the third and fourth years of my LLB studies to complete. I was eligible to be appointed an apprentice in a law firm for three years — if anybody would have me. I knew nobody who would want to. I trawled the job pages of newspapers and applied to a few insurance companies that had posted vacancies requiring legal skills. Most applications led to interviews, which ended when I disclosed, as I had to, that I had been on Robben Island and that I was under house arrest. Nothing came of those blindly hopeful, if not naïve, efforts. In that climate, no right-thinking employer would have wanted a “terrorist” in its backyard.

Next was to set my sights on law firms in Pretoria. After all, I had always wanted to be a practising attorney. Thanks to the Yellow Pages listing of law firms, I wrote to between 10 and 15 of these in Pretoria, inquiring if they had a vacancy for an articled clerk. Five or so responded and called me in for an interview. I thought I interviewed rather well. I always went armed with my matric certificate, BA and B Juris certificates, and a transcript of my thirdyear LLB results. All seemed to go well until the moment of truth. I knew I had to spit it out at some point. I was not ashamed of having been on Robben Island, but I knew that this disclosure would be a death knell.

One of those five abortive interviews lingers in my mind. I walked into the office of the senior partner of Rooth and Wessels Attorneys in Pretoria. My interview was with a Mr Bam. He was a rotund man and of not much height and he filled his chair. He had glasses with thick lenses and round rims that sat at the lower end of his nose. I couldn’t help noticing his black waistcoat, which sported a fob-watch chain that ended in the little front pocket. He had an enormous desk. To the right end of it was an old-fashioned telephone, the kind you really only see in dated movies. The rims of the mouthpiece and the earpiece of the handset appeared gilded, although this may very well have been brass. From the time I sat down in front of him for the interview to the time the interview actually started, Mr Bam answered several telephone calls while I waited. Each time he took a call, he tilted backwards and swivelled his chair in a distinctly self-satisfied manner.

In time, the interview got under way. He seemed suitably impressed. He turned his podgy-cheeked face in my direction. “Young man, I think you have earned yourself articles at this great law firm.” I could hear my heart throbbing. I knew that his verdict was premature. I still had to tell him about my sojourn on Robben Island. I knew this would have an effect but not the effect it did. As I mentioned the words “Robben Island”, Mr Bam tilted his chair so violently backwards that he almost toppled over. Breathing heavily and half-suspended in the air, he called out loudly for his personal assistant.

She charged into the room and helped tilt the chair into an upright position once more. When he was settled, Mr Bam fixed his eyes on me and raised his voice almost to a shout. “No, you do NOT have a job, young man. And you must leave — immediately!”

I hastened out of his office, devastated. I had come so close to getting a job. Thinking about it, I probably wouldn’t have fitted in there anyway.

During the third quarter of 1974, and as my anxiety of staying at home began to rise, one morning my father came to me and said: “I know an attorney named Piet Hartman. He did odd legal work for me. He has promised me that he will introduce you to Dan Neser. His wife is Jenny Neser. Dan is a partner at a law firm PERSONAL HISTORY: Above, Dikgang Moseneke — who retired this year as deputy chief justice — with Nelson Mandela; right, being congratulated by his wife Khabonina after being admitted as an attorney in 1978 called Dyason, Douglas, Muller and Meyer.”

Dan Neser was a tall, big, jovial man. He chuckled, and sometimes laughed, when few people would. He seemed to take life in his stride. His father had been a judge and his wife’s brother was a judge. Dan was attached to a securely Afrikaansspeaking firm, whose senior partner at the time was a charismatic man named Mike Meyer. Hilgard Muller, whose name appeared on the firm’s letterhead as a consultant, was a cabinet minister in charge of foreign affairs at the time.

Dan Neser agreed to meet with me. He suggested that we meet at his home, which was located on Lawley Street in Waterkloof Ridge. I was awestruck by the leafy suburb with its many trees and beautiful homes. Dan’s wife, Jenny, was friendly and chatty and welcomed me inside. They were liberal people who were determined to do good, even in the face of racial fissure. It did not take long before Jenny told me that she had been at school with Fikile Bam (no relation to the chair-swivelling attorney).

Boet Fiks, as I affectionately called him, spent 12 years on Robben Island, just about the same time I was there. Jenny was way more leftist and opposed to racial segregation than her husband, who was a member of the United Party. Jenny was a Black Sash kind of activist and she talked about Sheena Duncan with open admiration. She was a charming, vivacious and caring human being. Later, Jenny and I, together with Johann Kriegler and other generous trustees, would work together for many years in Project Literacy. It was Jenny who started this project, to provide adult education to domestic workers and gardeners who were employed in the leafy eastern neighbourhoods of Pretoria. She badgered the governing bodies of whites-only primary schools to allow her and the workerlearners to use their children’s classrooms in the evenings. In no time, Jenny learned Sepedi and she spoke it fluently to her charges as they sat low down on the small primary school chairs during evening lessons. She sneered at apartheid boundaries. To restore the self-worth of outcasts was much more important to her.

That evening I told Dan and Jenny my story, and that I wanted to become a practising lawyer. Dan expected resistance at his firm. Most of the partners at Dyason were middleof-the-road ruling-party supporters, and the firm, being the largest Afrikaans law firm in Pretoria, sourced most of its work from the state, which it lauded and supported. Nevertheless, Dan said, he would raise the matter with the most senior partner, Mike Meyer.

A few days later, clad in a dark suit, a fresh white shirt and a tie, I was heading for Mike Meyer’s office on Pretorius Street. I had cracked an interview with him. At the end of the interview, his flashing green eyes pierced straight into mine. He pulled in the edges of his mouth as if he was about to smile. “You have a job, as a law librarian and researcher,” he said. “We employ only LLBs. As soon as you complete your LLB, you will have a job as an articled clerk.”

I was stunned. I had made a full revelation to him about my past and he still gave me the job! Dan must have paved the way. Where was the catch, I wondered. Might he change his mind once he had received a call from the security branch? They must have easy access to him. Maybe, I thought, he had told them beforehand and they thought it would make it easier for them to monitor me if I worked at a leading Afrikaans-speaking law firm. Whatever the truth was, at that moment it didn’t matter a jot — I had a job.

My first job was special in many ways. I was allocated an office with my own telephone extension just near the entrance of the library and opposite the office of another senior partner, Marius de Klerk. Of course, back then I could not have known that Marius and I would end up as fellow advocates at the Pretoria Bar and that, later, our terms as judges of the High Court in Pretoria would partly coincide. At Dyason, I had to make sure that I was a worthy appointee. I had to manage the library exceptionally. But even more importantly, I vowed to produce the best-quality legal research work, if I were asked. Mike Meyer insisted that I be paid as an articled clerk, a package that included a clothing allowance every three months so that I looked the professional part. He sent out a circular directing all non-lawyers in the firm, and secretaries in particular, to address me in writing and orally as they addressed all other professional lawyers. The form of address was Meneer. That was a small progressive step if one remembered that all the other black people who worked in the law firm were either cleaners or messengers.

There were eight new articled clerks, all drawn from Potchefstroom and Pretoria universities. All of them were Afrikaans speaking. Even so, we soon made friends. It was remarkable how young people with backgrounds such as they must have had leapt at the opportunity to cross artificial boundaries. Mutual respect amongst us developed very quickly. Each of my young colleagues, who included Zak Ferreira, Willie Nortje and Anamarie Venter, had to apply to the Department of Justice for permits to come and visit me in the township. They were all genuinely keen and eager to turn their backs on their prejudiced upbringing.

At a career level, however, I was less than happy. Despite the fact that I was entitled to enter into articles of clerkship by virtue of my B Juris degree, the internal rule at Dyason was that I had to actually hold an LLB degree. Before long I started looking around the Pretoria area for a law firm that would take me on to start articles immediately. I landed an interview with Mr Ned Klagsbrun, a senior partner at Klagsbrun, Schewitz and Partners. The interview was conducted by his son, Steven Klagsbrun. With him, I chose to make the Robben Island disclosure up front. If that broke the back of the camel, so be it. I had resolved that I wouldn’t have another consultation that might at the end blow up in my face. Remarkably, Steven Klagsbrun was quite relaxed about my political conviction. Within 30 minutes of the interview, he said to me: “You have got the job” — provided that the Law Society agreed to register my articles of clerkship.

The law of the time required that the agreement between the principal and a trainee law clerk had to be registered with the Law Society, which was obliged to satisfy itself that the law clerk was a fit and proper person to be admitted as an attorney. I had to submit to two interviews with a panel of senior members of the council of the Law Society. My position was uncomplicated. I made the point to them that I had not been convicted of any offence that went to my honesty, integrity or competence. The panel members may have held different political views from mine, but that was no reason to bar me from training and later practising as an attorney.

I pointed out that attorneys held divergent views about the merits of the political system of the country. That divergence of opinion could not possibly undermine their ability to serve their clients faithfully and competently.

Within days, the Law Society supported the registration of my articles of clerkship for a period of three years. If I were to complete the LLB degree earlier, the term would run for two years only.

By the end of 1977 my articles were fully served and I had indeed completed the LLB degree — at the end of 1976. What was more, I passed my attorney’s admission examinations after obtaining the highest mark of all the candidates who sat the examinations that year. Steven Klagsbrun was extremely supportive. I owed my excellent pass rates to the immaculate and thorough practical training I received under his tutelage. I prepared my admission papers and served them as required by the Law Society rules.

“My Own Liberator” by Dikgang Moseneke, published by Picador Africa, R299

RETIRED deputy chief justice Dikgang Moseneke has thrown his weight behind calls for greater access to higher education, saying that the state is constitutionally obligated to provide it.

Moseneke — who served 15 years in the Constitutional Court and was one of the drafters of the interim constitution that facilitated South Africa’s transition from apartheid to democracy — said if the state was unable to immediately do so, it would have to demonstrate that it had a plan to reach this goal.

He cited section 29 of the constitution in stating everyone has the right “. . . to further education, which the state, through reasonable measures, must make progressively available and accessible”.

Moseneke’s comments come as students have shut down tertiary institutions around the country in their demand for free university education for all.

As chancellor of the University of the Witwatersrand, Moseneke has been actively engaged in attempts to find a solution. He revealed he was writing a paper he would make public soon in which he argues that access to higher education is a constitutional obligation.

“The qualification really is as simple as this: if you don’t have it now, over time that access must be progressively realised subject to available resources.

“The state would have to demon-

Mr Bam tilted his chair so violently backwards that he almost toppled over. He called out loudly for his personal assistant It was remarkable how young people with backgrounds such as they must have had leapt at the opportunity The constitution requires of you to structure a plan, that would over time facilitate increased access

strate that, in fact, they have a plan to progressively realise it . . . and they are allocating resources in order to reach their goal . . .

“The constitution requires of you to structure a plan, that would over time facilitate increased access. If there is a rise in costs, the planning should build in all of that.

“Your duty is to increase access to education. Then you have to structure a plan,” Moseneke said.

The former Robben Island prisoner, whose memoir, My Own Liberator, has just been published, believes making education accessible is a “sensible” thing to do given the potential it has to reduce inequality and lift people from poverty.

“It is utterly sensible, isn’t it? Because the more educated, crafted or skilled the people are, the better liberators they will become of themselves . . .

“So the question must pop up: when the fees rise all the time . . . when the constitution promises progressive access to education, what is happening there?”

My Own Liberator is Moseneke’s account of his upbringing; his sentence of 10 years’ imprisonment on Robben Island at the age of 15 and his illustrious career as lawyer, anti-apartheid activist, businessman and one of the country’s top jurists.

He is writing a second book which will focus on the 15 years he spent at the Constitutional Court.

He started writing his autobiography four years ago, on most evenings splitting his time between crafting court judgments and putting his memories to paper.

“If you go to the book, you will see that it really tries to be an anecdote about one’s life and the many South Africans I criss-crossed with and the many social and Continued on Page 18