Moseneke, a giant of SA justice
Appellate division justice Oliver Schreiner was famously called “the greatest chief justice South Africa never had”. This term has now been used to describe deputy chief justice Dikgang Moseneke, who retired from the constitutional court last week.
President Jacob Zuma has never definitively answered why he twice overlooked Moseneke for chief justice — the obvious choice in so many ways.
His resumé is a glittering one: Moseneke spent 10 years as a prisoner on Robben Island during the liberation struggle, completing his undergraduate and LLB degrees on the island. He became part of the team that drafted the country’s new constitution and played a key role in the first democratic elections, as deputy chairman of the Independent Electoral Commission.
Some think Zuma disliked Moseneke because of his perceived closeness to Thabo Mbeki. But many think that, like Schreiner, Moseneke lost out because of his independent-mindedness and his sometimes blunt assertion of it.
At his 60th birthday party in 2007 he said he wanted to use his time on the bench to help create an equal society. “It’s not what the ANC wants or what the delegates [to an ANC elective congress] want; it is about what is good for our people.”
More recently, he made a speech questioning the extensive powers of appointment of the president under the constitution. Though the speech was clearly couched in general, principled terms, the headlines screamed “Moseneke: Zuma too powerful”.
But while his public speeches might have grabbed headlines, he will be remembered for his body of judgments. They cover a broad spectrum of the law — from exchange control regulations, to mineral rights, to the independence of the Hawks, to evictions under the Slums Act, to property rights, to medicine control regulations and the Promotion of Administrative Justice Act.
Our favourite was his reasoning on open justice in his judgment in the Independent Newspapers case. Though the outcome was conservative, his dicta on open justice laid the legal basis for the media to fight for access to a number of dispute-resolution forums — like the CCMA and bar council disciplinary hearings — and to court papers.
Moseneke has been particularly lauded for his groundbreaking affirmative-action jurisprudence. In the Van Heerden case — the first to deal with “restitutionary measures” under section 9(2) of the constitution — he harmonised what some viewed as potentially conflicting provisions. He said affirmative-action measures were not “in themselves a deviation from, or invasive of, the right to equality guaranteed by the constitution. They are not ‘reverse discrimination’ or ‘positive discrimination’.”
Some of his judgments have also been criticised. The Masetlha decision, which dealt with the constitutionality of Mbeki’s decision to fire Billy Masetlha as head of the National Intelligence Agency, has been castigated as overly executive-minded.
His decision in Mark Shuttleworth’s case, in which he upheld exchange-control regulations, which were described as a relic of an authoritarian era, has been criticised as a loss of nerve.
His work ethic and commitment to the court were legendary. In his 15 years on the bench, he turned up for work every day — the only exception being when his son Bo died of diabetes-related complications in 2005.
But when lawyers are asked for their memories of the deputy chief justice, they mostly do not quote judgments. They talk about the way Moseneke presided in court. They talk not only about his incisive questions to counsel, but about how he would greet members of the audience, often in their mother tongues — he is fluent in almost all of SA’s official languages.
In the Nokotyana case, after a grilling by the court, counsel for government apologised to the court for an outrageous delay in providing toilets to the Harry Gwala informal settlement.
Moseneke asked the advocate to turn to the members of the community sitting in the packed public gallery, and make his apology directly to them. It was one of those moments in the constitutional court’s history that few will forget.