INLSA
Mogoeng Mogoeng, President Jacob Zumas man for the job. Picture:Bonile Bam
Janet Smith
People who’ve met Deputy Chief Justice Dikgang Moseneke, say the same thing. He’s a serious man.. Even casual words are precisely chosen.
An elegant suite of judgments reflects his rapid mind influenced only by the 27 commandments of the constitution.
He answers calls. He considers outside questions in his busy day. He writes personal responses to journalists’ pieces.
Perhaps it’s because so many of us have become used to too many government and party officials ignoring us, or treating us as if it isn’t their job to talk to us, or only talking to us if they can extract some personal value out of it, that it seems so clear.
Moseneke, now 63, is a gentleman whose patriotic spirit has not yet disintegrated.
Judge Dikgang Moseneke, once again overlooked. Picture: Etienne Creux
Inl SA
That’s why it’s almost impossible to imagine that when he gave a bit of a speech at his 60th birthday celebrations in KwaZulu-Natal, he didn’t speak carefully about where he was in his life at the time.
It was the beginning of January 2008. The blood was still drying on the grass outside the University of Limpopo where the ANC had staged the battle of Polokwane.
Clearly, the events that had played out there were on everyone’s mind. Almost nothing else was in the news. Analysts had ripped it apart.
No one seems to have recorded Moseneke’s words at his party, so it could well have been paraphrased several times. But those who have written about it, all report on it in the same way.
The judge apparently said he had dedicated his life to a free and equal society, and he had chosen his profession very carefully to meet this end.
At that stage he had at least a decade left on the bench of the highest court in the land, and Moseneke said he was determined to carry on occupying that seat for public good.
Then he said the thing that seems to be a reason why President Jacob Zuma has twice refused to nominate him for the position of chief justice, although one can be sure there is more.
He said his job – and, in fact, that of all the judges at the Constitutional Court – was not to please the ANC or the delegates at Polokwane, but to do the right thing by the people of South Africa.
Sounds absolutely right. It’s what a deputy chief justice or a chief justice, or any member of the judiciary, should be saying about their role.
But the reference to the sacred ground of its Limpopo conference seemed to so annoy the ANC that its national working committee lumped Moseneke together with opposition parties in its response, saying that “many within the judiciary appear to have difficulty in shedding their historical leanings and political orientation”.
This was a good three years before ANC Youth League president Julius Malema threw BBC journalist Jonah Fisher out of a press conference at Luthuli House, accusing him of “tendencies”.
No doubt Moseneke would otherwise have been accused of the same.
So this week, when the deputy chief justice should have been at the meridian of his ambition, promoted to chief justice, he was side-swiped again in what has been interpreted as vengeance from a president and his inner circle who seemingly cannot take the taste of rebuke.
It’s not a good sign. But they’ve been sparring for this for a while, muscled up by the threat of attacks to the reviled Protection of Information Bill, and then the low blow in March when the ANC was told by the Constitutional Court that one of its decisions was so bad that it had to change it. That’s when the turnbuckles were tightened.
Five against four Constitutional Court judges told Parliament it would have to remedy legislation after a private citizen, Hugh Glenister, brought the matter of the disbanded Scorpions before them. The court found that Chapter 6A of the South Africa Police Service Act, as amended, was constitutionally invalid, meaning that the Hawks, which replaced the Scorpions, were not independent enough. Parliament was given 18 months to sort it out.
The judgment, which was touch and go, set Moseneke directly up against Zuma’s previous choice for chief justice, Sandile Ngcobo.
Ngcobo wrote the minority judgment while Moseneke, together with Judge Edwin Cameron, wrote the majority. And their verdict effectively threw out one of the ANC’s biggest and most important decisions out of Polokwane.
Zuma and many of those close to him had wanted the Scorpions, a dangerous lot who had created all sorts of difficulties for the politerati, killed. And so it came to pass – but the Constitutional Court then decided that in law, that was wrong, and so, that was that. Yet, had Moseneke toed the line against Glenister and the public good in March, he may well have been chief justice today.
Clearly, an eventual meeting – apparently between Ngcobo’s predecessor Pius Langa, Moseneke and Zuma – back in 2008 after the fateful birthday speech, got lost in the mists of time. On that occasion – probably after some diplomatic entreaties involving Kgalema Motlanthe, who was then the new ANC deputy president – the party endorsed Moseneke and reiterated its confidence in the courts. Things have deteriorated since then.
It’s not that easy to negotiate the steps leading up to the Constitutional Court. You’ve got to stretch your legs quite wide, if they’re not very long, and almost jump from some steps to the others. Or you’ll have to take at least two steps for every one. You’ve got to think about it. And when you get to the top of the stairs, there are some lovely long shadows to contemplate. Artworks, they stretch well into the foreground of the court. It’s always like late afternoon on that spot – a perfect time of the day for review.
Perhaps Zuma and ANC secretary-general Gwede Mantashe haven’t leapt up and over those steps or positioned themselves into those shadows for a while. Maybe they’ve never done it.
But like everything else at the Constitutional Court, on the border of Hillbrow in Joburg, those elements give you pause for thought.
Even the entrance to the court is no mere turnstile. It’s an august pair of 9m-high wooden doors fertile with carvings to mark the 27 rights of our constitution. When you walk through there, you know why you’re going inside. This week, the dignity of the court held. It was quiet. Business as usual. It was outside where all the madness was gathering to a high point on Thursday.
That was the day Mantashe told Sowetan editor Mpumelelo Mkhabela that we have embarked on “a slippery road” after Constitutional Court judgments “that venture into political weighting of views”.
“Every time there is legislation that passes through Parliament – for example, the Protection of Information Bill – there is a threat that it will be taken to court and the court might position itself emotionally to reverse it. That’s a problem.”
In The Star on the same day, executive editor Moshoeshoe Monare recalled two interviews he had with Zuma, in a fiery inside piece. “If I sit here and I look at a chief justice of the Constitutional Court, you know, that is the ultimate authority, which I think we need to look at because I don’t think we should have people who are almost like God in a democracy. Why are they not human beings?”
Everywhere else, in other media this week, Zuma’s nomination of Judge Mogoeng Mogoeng for chief justice was slammed. The president had apparently done everything possible to overlook Moseneke, the rumour being that he first approached Judge Sisi Khampepe. Some reports late in the week said Khampepe, who would have been a good choice, had turned down the president’s request out of respect for Moseneke.
But other rumours suggested Khampepe did not even have an opportunity to say no. Before she could say yes, having done the necessary consultations, Zuma had allegedly changed his mind and made his announcement.
This is complicated by the inference that, only a couple of weeks ago when speculation was at its height on who Zuma would choose, Mogoeng was already at the top of the list. At that point, and even at the time of his appointment to the court in 2009, analysts who feared his rise to power tried to show how unsuited Mogoeng may be to the position.
The ANC has sloughed off criticism that he is young at 50, and has too little experience in the Constitutional Court. But the party is not answering charges that Zuma’s chief justice has all the posture of a traditionalist, neo-conservative, rightwing evangelist who has, for instance, already undermined a fundamental constitutional right, to be gay, in at least one judgment.
That was in the case of the three Waterkloof Hoerskool boys who manipulated a photograph to create a cartoonlike picture of their school principal and deputy principal. The photograph showed two naked men, sitting side by side with the heads of the principal and deputy principal superimposed onto the naked bodies. The Constitutional Court, in a split decision, ordered the boys to pay the deputy R25 000 and to apologise unconditionally.
Mogoeng was a notable dissenter on the day, mostly because he failed to give any proper understanding of why he felt the way he did. The only thing we know for certain is that he believed that a South African should be able to sue for defamation, and win, if someone depicts them as gay. Our beautiful constitution surely cannot support that. We ought to be very nervous indeed.
With all of this going on, it’s been difficult not to think the country could be in some kind of trouble. The president and the secretary-general of the governing party talk about the Constitutional Court as if it is an enemy to democracy. They sound like they’ve washed the silt of history off their feet. The probable new chief justice does not entirely espouse the values that have made us a nation among nations in terms of constitutional law.
Few can remember him delivering a judgment that made a positive impact on them. Emerging out of the strange desert of North West jurisprudence, Mogoeng doesn’t yet have the reputation of a leader, even though he led the North West court. It’s about a certain charisma. Mogoeng doesn’t have the rigour.
Back to Moseneke, then: a man admitted to the bar as an advocate of the Supreme Court 20 years after he was found guilty of sabotage, in the same room. He was a mere 15 years old when the Pretoria Supreme Court sentenced him to a prison term on Robben Island. He would be one of the youngest political prisoners incarcerated there, but go on to earn silk and take up his place as one of society’s most admired individuals.
Fortunately, Moseneke remains in his post for now, and Mogoeng, chief justice or not, will always be only one judge on the bench. So that takes care of some of the moral disorder. It is in seven years, as Moseneke approaches retirement, that we’re going to have to look back at a moment when everything could have gone so right.
Hopefully, it won’t be in anger.
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