Social justice will always trump societal ills - Mgoqi
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President Cyril Ramaphosa recently declared that South Africans take part in the choice of selecting the country’s next Chief Justice as part of promoting transparency and to encourage public participation. As a result, the Restoration Foundation has nominated Ayo Technology Solutions chairman Dr Wallace Amos Mgoqi, adding that he is the most suitable candidate for the position. Noni Mokati talks to Dr Mgoqi about his journey as a legal practitioner and some of the fundamental challenges facing the Constitutional Court and what he can bring to the table to change that.
Nomination by Restorative Justice for the position of Chief Justice, do you accept
I have not declined it (nomination). People have the right to select because the president has called for a public nomination. This is hence why I decided to accept this nomination and see how it pans out.
What does the role of Chief Justice symbolise for you, given the context of our country's history?
The Chief Justice is the leading Judicial Officer in our Judiciary. In a sense, he or she sets the direction and the pace of the judiciary and determines the scope of the national issues that this institution should be handling. The Chief Justice also sets the norms and standards of the judiciary. It's quite a pivotal role that he or she plays and quite a challenging position.
Your background in law is quite an illustrious one, summarise your journey for us?
My entry into (law) was a late one because, in our time, there were so many hurdles to jump over. I had started my university studies in 1971 and in 1973, when I was scheduled to complete my first degree, in my final year, students were protesting against the apartheid administration which was manifest at universities. The apartheid regime at the time employed rectors who were members of the secret Broederbond. These were hard-hearted men. So that year before I wrote my final exams we rose up as students in protests.
I had the heart for justice, particularly for people suffering, especially in informal settlements. It was there that the fire to become a lawyer was ignited.
In the first year, I transferred to Unisa and that time even transferring to UCT, one had to write a letter to the minister of education and justify why I could not go to a black university, because UCT was white students only. So African, coloured and Indians had to obtain ministerial permits to be admitted to UCT. So I had to apply for one and justify it. That's how I go to complete my degree in 1984.
The emergence of many black lawyers
Naturally, it gives us a sense of hope that there has been a change. In our final LLB class, there were three of us in a class of 70 students. So we were a real minority. To now see that the majority of students in a final year class are black students is something that is new to us and is something that gives us hope that there is a future for this country.
Characteristics of the Chief Justice: What do you have that puts you in good stead to become Chief Justice?
I must say, I have a lot of respect and admiration for all the judges who have served at the apex court from the very beginning. There is a brilliant internationally acclaimed jurisprudence that has been established. All of them, singularly and collectively, have put together a body of work that all of us can be proud of. They have established, built, natured and protected that institution as a national institution and one that compares with any other in the world.
Over time there has been contentious issue around the role of our courts and roles played by judges. Are you of the view that the Judiciary is captured?
I really wouldn't say so. They (judges and courts) have no reason to be captured. They are structured as an institution in such a way that they should be independent in their thinking and in their conduct and that they have no lack in their lives to want to, in a sense, anger people wielding political power. They are set up in order to have critical, independent and non-partisan decision-making capacities. Each one of them is there to write their own story. They are building their legacy. That is what has characterised my whole life with the benefit of hindsight. I begin to see how the values I have been pursuing have influenced my decision-making processes.
Jacob Zuma's contempt of court case, sealing of CR17 documents etc. Were those cases handled properly by Concourt?
I would say quite unequivocally, to the best of my knowledge of those matters, they were handled by the Constitutional Court in the best possible way. They maintained the integrity of Concourt. I have very deep admiration at how matters were handled, given the winds that were blowing against that court. They maintained the integrity of the institution and protected it from any assailment by political forces that were hostile towards it.
Did your work at the Land Claims Court and the Gender Commission form part of the legacy you wanted to build?
During my time at the Legal Resources Centre, people from Kraaifontein came with an eviction notice and we immediately went to court with that matter. Long story short, after they won their victory, they then decided to approach the national court to apply to change the name of that informal settlement to my name. From there I was appointed to the Land Restitution Court where I served for about eight years.
As I joined the Gender Commission, I asked myself: with the legal background in land matters, what new unique value was I going to bring in this position? That's how I got to start the campaign: One Woman, One Hectare. I was of the view that if government was to allocate a minimum of one hectare to one woman who was wiling to use the land productively, profitably and sustainably, then they had to be assisted with that.
During my tenure as an acting judge at the Land Claim’s Court which ran concurrently with the Gender Commission role, I introduced a practice rule of court that was aimed at sensitising legal practitioners when handling matters affecting women. Today, if you look at the practices of the Land Claims Court, Rule 19 is the very one that I introduced. The idea was to say the apex court and all other courts must adopt a similar practice and for all legal practitioners to be sanitised about handling matters relating to women and the girl child. I'm very proud of that particular history. it was again the part of writing our history and building a legacy.
Do you agree with the notion that the justice system and the courts have failed women?
Yes. I'm the first to admit that, because the court system has not been sensitive to women. The legal system by it's very nature is an adversarial and hostile system. It can be quite rough. It has rough edges and so those who lead the judiciary must be sensitive and soften those edges.
Land claims and land restitution
Land in itself is connected to human dignity. Land is also connected to identity of the person who owns it. Lastly, land is connected to survival and livelihood of a person. When those three things are not present, there is human suffering. Land in itself is a catalyst, an instrument and a lever for the transformation agenda. For when people are denied access to land and denied control of ownership of land, their human dignity is somewhat diminished. Those who have the land have been using it to generate generational wealth. Those who are landless have nothing. This is what our land reform project is supposed to remedy. It is meant to bring justice and a balance between those who have, and those who don’t. If that is not remedied, we are living on a volcano that can blow into our faces, any time from now.