Moseneke still a man on a mis­sion

Pro­duc­ing ‘qual­ity out­comes’ is one of the rea­sons the re­tired judge is so well re­spected, writes KEVIN RITCHIE

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DIK­GANG Moseneke is in fine spir­its. He has ev­ery right to be. Nom­i­nally re­tired from South Africa’s high­est court, he’s just writ­ten a beau­ti­ful mem­oir that is si­mul­ta­ne­ously poignant and en­thralling. My Own Lib­er­a­tor charts a life from Pretoria’s ver­sion of Sophi­a­town, Lady Sel­borne, to At­teridgeville, Robben Is­land as South Africa’s youngest po­lit­i­cal pris­oner, lawyer, silk and fi­nally af­ter be­com­ing ac­claimed one of our most rev­ered ju­rists ever, back to the TV room of the fam­ily home in Waterk­loof.

Dap­per, even in a pair of jeans and open necked shirt rather than the green robes of the Con­sti­tu­tional Court, Moseneke has the air of a man on a mis­sion, rather than a pen­sioner pot­ter­ing in his rose gar­den.

He’s turned down more speak­ing en­gage­ments than he cares to re­mem­ber, but even so he has the Unisa Founders’ day ad­dress in a fort­night’s time where in typ­i­cal style he’ll grap­ple with the is­sue of univer­sity fees as seen in terms of sec­tion 29 of the con­sti­tu­tion, which guar­an­tees ac­cess to ed­u­ca­tion.

Next he presents the next He­len Suz­man me­mo­rial lec­ture, fol­lowed by a stint at the Lon­don School of Eco­nomics in Jan­uary as an oc­ca­sional lec­turer and then he’s off to New York Univer­sity as a vis­it­ing pro­fes­sor next April to teach the se­mes­ter.

He’s also an honorary pro­fes­sor at Wits Med­i­cal School, where he lec­tures on bioethics, but he wants to head down to Cape Town to teach at the UCT Sum­mer School with Judge Den­nis Davis. He’d also like to teach at Fort Hare and Tur­floop, too. “I’d like to do some in­spi­ra­tional speak­ing and con­tex­tu­alise the law and its im­por­tance for the stu­dents there.”

The one thing he doesn’t want to do is to get on the pub­lic speak­ing cir­cuit, even though it is highly lu­cra­tive. By the time he re­turns from New York, his next book should be out. It will be the sec­ond vol­ume of his mem­oirs, fo­cus­ing on his time as a Con­sti­tu­tional Court judge and ul­ti­mately deputy chief jus­tice.

“I have sto­ries to tell,” he says. “I would like to tell the fas­ci­nat­ing sto­ries about com­ing to court and learn­ing from the best like (in­au­gu­ral chief jus­tice) Is­mail Ma­homed, Arthur Chaskalson, Jo­hann Kriegler, Al­bie Sachs and all the oth­ers.”

In typ­i­cal Moseneke fash­ion, he won’t shy away from the con­tro­ver­sies ei­ther, like be­ing over­looked for the po­si­tion of chief jus­tice – not once but three times – by Pres­i­dent Ja­cob Zuma, but also of the real and pro­found friend­ship which evolved be­tween Moseneke and his last boss, Chief Jus­tice Mo­go­eng Mo­go­eng.

Be­ing over­looked was a boon for Moseneke, he says. “It in­creased my in­ten­sity to be a good judge, to fo­cus on the job and get it done quite well and teach and train new judges.”

The work he did there and at law schools, in­clud­ing the pa­pers he de­liv­ered at home and abroad, will form the ba­sis of a third, more schol­arly, vol­ume.

The sec­ond vol­ume of his mem­oirs un­der­scores his de­sire to in­cul­cate a sense of call­ing and of the enor­mity of the re­spon­si­bil­ity of ac­cept­ing a po­si­tion on the bench for new judges – some­thing that he shied away from un­til he was in his mid fifties and fi­nally felt ma­ture and set­tled enough for the job.

Sir James Rose Innes, South Africa’s chief jus­tice from 1914 to 1927, is the only other se­nior judge to have writ­ten a book which ex­plains what it is like to sit on the bench in judg­ment of your fel­lows.

Moseneke’s mem­oir will be a much­needed and timely ad­di­tion.

His first vol­ume, My Own Lib­er­a­tor, has set a high bench­mark. Writ­ten over four years, it is ded­i­cated to his wife and fam­ily.

“I might look very so­cial and re­laxed, but this place was a den of ac­tiv­ity, of writ­ing, of be­ing a recluse,” he re­mem­bers.

“The chal­lenge was to be anec­do­tal, to tell the story, not to be too clever. We judges are the voice from the moun­tain, we hold the tablets so we tend to bel­low, so this was about search­ing for hu­mil­ity, the lit­tle boy grow­ing up see­ing peo­ple come back from the war, all those mem­o­ries, a grand­fa­ther who rises from noth­ing to be­come head chef, the forced re­movals, ev­ery­thing.”

It was a bid, he says, to also ex­plain his con­cept of African hu­man­ism, as es­poused by Robert Sobukwe, founder of the Pan African­ist Congress, and be­cause of this be­lief, his sen­tence of 10 years on Robben Is­land at the age of 15 – the youngest po­lit­i­cal pris­oner. This in turn fed into the con­cept of be­ing, as the book says, your own lib­er­a­tor.

“It’s like a lit­tle ditty that doesn’t go out of your head, you want to sing it ev­ery sec­ond. I can’t out­source my duty to sit up and read vol­umes and vol­umes, I am the judge I must pro­duce qual­ity out­comes.

“‘You, my boy, have to clean your own shoes, you have to wake up like your grand­fa­ther at 2am and stoke the boiler.’ That re­spon­si­bil­ity stays with me. If you want things to hap­pen, if you want free­dom, if you want dig­nity, if you want a good gov­ern­ment you can’t sleep on the job.

“You are your own lib­er­a­tor, it taught me about the two tram­lines of per­sonal agency and col­lec­tive agency and we tend in so­ci­ety to take the shorter route of re­ly­ing on col­lec­tive agency: the gov­ern­ment must do, the bosses must do, and we rarely point our chil­dren, as my fore­bears hap­pily did. They must skill them­selves.

“I needed to write that and let it come through and re­mind our young peo­ple ‘yes there are things we can de­mand but there are other things we must do, we must pick up our lit­ter, we must clean where we live’, that’s how we are go­ing to get our­selves lib­er­ated in the broader sense of the word.

“The no­tion that po­lit­i­cal lib­er­a­tion as the only one is a false one.”

My Own Lib­er­a­tor

by Dik­gang Moseneke, pub­lished by Pi­cador Africa at a rec­om­mended price of R299.

See an ex­tract from the book in to­mor­row’s Week­end Ar­gus Sun­day

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