Anti-apartheid stalwarts Griffiths and Victoria Mxenge would not be happy to see the new South Africa they fought and died for, in the current state that it was.
This was the view of Chief Justice Raymond Zondo, who said he too was not enamoured by this new South Africa.
Justice Zondo did his articles at Victoria Mxenge’s law firm as an article clerk as a young lawyer in the 80s, before the couple was assassinated by the apartheid government in 1981 and 1985.
Zondo was invited to deliver the keynote address at the annual Griffiths and Victoria Mxenge memorial lecture at the Nelson Mandela University in Gqeberha, on Thursday night.
Zondo said as the country reflects on almost 30 years of democracy, there were several gains that they would be proud of, including the fact that the country was now a constitutional democracy where the constitution was supreme.
He said under apartheid, Parliament was supreme and the judiciary was based on racist policies of the apartheid government, whereas the judiciary and the constitution in the new South Africa was about human divinity, human rights, freedom, the rule of law, non-racism, non-sexism and constitutionalism.
“Look at where we are, I am not happy. We should not be here.
“Many who fought for our liberation, like Griffiths and Victoria Mxenge, they are not happy. We should be somewhere much better,” said the chief justice.
Although Zondo was not specific about what the Mxenge’s would be incensed by in the new order, he mentioned how crippling the state capture phenomenon had been for the country, with billions of rands siphoned out of the coffers for the benefit of a private few.
He told the audience that the Mxenges, though they would be pained by the state of play, said the judiciary was charting its path in the right fashion and was transforming rapidly.
He said while the judiciary under apartheid had race based policies and was mainly white and male, judges in the new South Africa were male, female, black, white, coloured and Indian.
“They would have wanted a South Africa with a Bill of Rights and a strong judiciary,” he said, explaining that a strong judiciary was made of competent and able judges who did not need favours from politicians for promotions.
He said although there were some weaknesses in how judges were appointed, the process was transparent and based on meritocracy, while also being inclusive and representative.
Zondo said there was significant progress in achieving gender parity in the judiciary, with 46% of judges in the country being women, while the head of Supreme Court of Appeals, the KZN High Court Division, were headed by women, while a woman was set to take up a similar seat in the Mpumalanga division.
He added that the Land Claims and Limpopo courts, were also headed by women - albeit in an acting capacity, and that the Deputy Chief Justice was also a woman.
He said South Africans had to reflect on the past 30 years and decide what they wanted the next 30 years to look like, imploring the public to make a difference to turn the South African situation around for the better.
“From now to the next 30 years, where are we going to be? Are we going to change the situation or are we going to continue to slide.
“I think we are going to need a strong judiciary that is going to come in from time to time and say no, this is not in accordance with the constitution, this is not in accordance with the law.
“We need to stop looking at a few, we need to talk about ourselves, what is the contribution each one of us are making to change the situation around,” he said.
Zondo said he would not be intimidated by anybody as he owed nobody for charting his path to become the chief justice. He said if he had to face people like the Mxenges, who sacrificed their lives for this country, he would be able to.
“A strong judiciary requires judges who do not need to be done favours to get promotion, it needs people to become judges because they have the knowledge and competence, because the Commission on State Capture has shown that it is easier to capture someone who doesn't have the competence or qualification, because they rely on someone to give them a favour for the job…
“The challenge for everyone is to identify where you are going to make your contribution to take this country back in the right direction.
“Mr and Mrs Mxenge were prepared to die to dismantle apartheid. The question arises us that apartheid was dismantled politically, but, we need you to choose what you are gong to focus on and make a contribution.
“It does not help to criticise and do nothing. Our destiny is in our hands. The judiciary will play it's role, go and play your role too,” said Zondo.