Judicial Watch

Dikgang Moseneke – saluting a remarkable man

Dikgang Moseneke

Sometimes our prayers are answered and for me deputy chief justice Dikgang Moseneke who has just retired is living proof of that.

I had the privilege to meet him in the early 1990s as South Africa was moving into its transition to a democratic state, sitting on a seat next to him at a meeting of the International Labour Organization in Genève, Switzerland.

He was the man standing next to me when I for the first time in my life sang and came to grips with the words of “Nkosi Sikelel’ iAfrika” – God bless Africa – which would later become the opening verses of our national anthem.

We could at that stage not have been more different in terms of background: he a black ex-prisoner from Robben Island, lawyer and senior functionary of the Pan Africanist Congress and I, a white politician deeply involved in the organising of the then ruling National Party.

Speaking perfect Afrikaans, he not only made a deep impression on me, but over the next day or two also strengthened my belief that black and white South Africans’ future were inseparably interwoven and that it was possible for us to take hands to build a better future together.

My own commitment to a “new South Africa” received a quantum shift from that experience. In the years to come the belief grew that God indeed blessed Africa by giving us someone like Dikgang Moseneke.

I can hardly salute Dikgang better than using an extract here from an article by Hugh Corder, professor of Public Law, University of Cape Town, published by The Conversation last week:

 “The retirement of Dikgang Moseneke, one of South Africa’s eminent judges and the Concourt’s deputy chief justice, invites a moment to reflect on the court’s place in society, and his legacy” Corder wrote.

Diverse tapestry of legal minds

In summary he further wrote:

Just as had occurred in 1910, when the first unified appellate court was created as part of the new country called “South Africa”, the background and experiences of the first eleven Concourt justices represented a remarkably rich and diverse tapestry of legal and political involvement.

This had two immediate consequences: most importantly, and led by President Nelson Mandela, the judgements of the Concourt were accepted unquestioningly by the executive and parliament, even when they went counter to the government’s own actions and decisions.

Secondly, the justices displayed a sophisticated and adept approach to the doctrine of the separation of powers, exercising due restraint at times.

The shaping of an erudite legal mind

With the passage of years, and given the fact that constitutional justices serve limited terms of office, it was inevitable and perhaps appropriate that those appointed to the Court should have less obviously strong “political struggle” credentials.

Moseneke’s retirement is especially significant for that reason. His entire career before appointment testifies to his intimate knowledge of and involvement in the fight against injustice before 1994.

There can be few South Africans who experienced the brutality of the apartheid regime as early in life and for such a long period as Moseneke. That he emerged from such trauma to exhibit the degree of compassionate, principled and courageous leadership that has characterised his life is even more astonishing. In 1963 he was only 15 when he was convicted of anti-apartheid crimes, and sentenced to ten years’ imprisonment. He served this term on Robben Island. He was not idle, gaining his matric as well as two Bachelor’s degrees.

He completed his formal tertiary education through an LLB degree after his release. He served as an articled clerk at a Pretoria firm of attorneys from 1976. After admission as an attorney, he founded his own firm. He moved to the Bar in Pretoria from 1983, a brave move as he broke a pattern of racist exclusion in that institution.

With the unbanning of political organisations in 1990, he assumed high office in the Pan Africanist Congress. As such he played a central role in the drafting of the transitional Constitution of 1993. Thereafter he served as Deputy Chair of the Independent Electoral Commission which organised the first democratic elections in 1994. Later that year he acted for a short while as a judge, before immersing himself in business activities.

But his commitment to the law as his first calling was renewed when he was appointed to the High Court in Pretoria in late 2001, followed a year later by his elevation to the ranks of the Concourt by President Thabo Mbeki. Less than three years later he was appointed deputy chief justice, in which office he served with distinction until retirement.

Proud legacy of eloquence and loyalty

Justice Moseneke delivered a number of very important judgments on behalf of the Concourt. Ironically, given the fact that, as deputy chief justice, he was passed over twice for appointment to the chief justiceship, he has frequently been associated with the notion of judicial deference in his interpretation of the separation of powers.

For instance, it was his judgment that finally put paid to the court challenges from those resisting the imposition of e-tolling in Gauteng. This was chiefly because he thought that such polycentric policy decisions belonged in the sphere of the executive, and were not decisions for a court of law.

On the other hand, his fearless commitment to constitutional principle is seen in his being part of the majority which upheld the appeal which set aside the establishment of the Hawks corruption-fighting agency as insufficiently independent. The judgment cited South Africa’s international treaty commitments to take steps to eliminate corruption.

Moseneke conducted himself throughout with enormous restraint, loyalty and courtesy notwithstanding his treatment by the executive.

On the Bench, he was an eloquent and urbane participant in debates about the maintenance of the rule of law, democratic constitutionalism, and the transformation of society, in line with the values of the Constitution. He is the living embodiment of those ideals, tolerant and caring in all he does, and an inspiration to many.

This is best epitomised in the manner of his leaving office. As deputy chief justice, he had the unenviable task of chairing the Judicial Service Commission when it interviewed President Zuma’s nominee, Justice Mogoeng Mogoeng, to be the chief justice. The tensions and animosity of that process were palpable.

Yet when Moseneke spoke at the formal Concourt sitting to mark his retirement, he went out of his way emphatically to express his complete confidence in the chief justice, as follows:

"I can say without any fear of contradiction that your integrity has been shown to be beyond    question.”

Such grace and magnanimity are rare in public life, so their impact is all the greater. South Africa and Africa need more leaders in the mould of Moseneke. He has just been in the news again, as one of the executors of Nelson Mandela’s estate. From their meeting on Robben Island over 50 years ago, the late president must have realised that here was a man of utter integrity. May the standards set by Dikgang Moseneke long continue to inspire good governance in South Africa. (To here the summary of the Corder article.)

We want to fully endorse and associate ourselfs with professor Corder’s sentiments.

by Piet Coetzer

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