Rising to the judicial occasion

Following the 2016 publication of his autobiography, My Own Liberator, retired and former deputy chief justice Dikgang Moseneke has written another book. Punningly titled: All Rise – a judicial memoir, the 305-page tome chronicles Moseneke’s 15- year terms as a high court and Constitutional Court judge.

Back in September 1994, Moseneke was offered and accepted an acting judgeship for three months at the Gauteng Division of the High Court in Pretoria. About that period, he speaks in terms that evoke nostalgia: “Fresh optimism had sprung. Vulnerable green buds were raring to burst into full bloom. It was a season of new possibilities, our moment of heady hope, our hour of magnificent potential for renewal.

“They may have been baby steps, perhaps unsteady ones, but we were taking our first steps towards a just society.”

The sunrise of his judicial career begins, in earnest, in November 2001, when he is appointed a full judge of the High Court in Pretoria after a six-year hiatus in the corporate world. It comes into bloom a year later with his appointment to the Constitutional Court and as deputy chief justice in 2005. It sets in May 2016, 14 years later.

He had, in that duration, participated in deciding and drafting 411 judgment cases, 50 of which he single-handedly penned. All Rise is as much about Moseneke’s 15-year judicial career as it is a biography of South Africa’s post-apartheid jurisprudence and a civic education manual on how the judiciary, particularly the Constitutional Court, works.

It also casts a spotlight on the laborious process of judging and the rancour that accompany the role, especially in an era chaperoned by a self-serving political elite whose misdeeds threaten the very survival of the democratic project. Moseneke walks the reader through the forbidding battle grounds of the diversification of the judiciary during the early years of democracy.

Like apes in a pagan ritual, some judges remained worshipping at the hideous shrine of their intellectual and political upbringing, which forbade them from seeing beyond the silted depths of racial and gender bigotry. It is a testament to the wisdom of the management of the transition in the early years of democracy and the fact that Moseneke and the legion of his post-apartheid colleagues rose to the judicial occasion that “virtually all of the old-order judges have retired and the judicial heavens have not caved in”.

The reader also discovers some intricate details on how the court processes judgments, the intellectual labours that go into judgment writing, considerations in deciding whether to hear or turn down appeal applications and the important but nonimperial role of the chief justice.

Since 15 February, 1995 – the day after former president Nelson Mandela inaugurated the Constitutional Court – when the court heard arguments in the state versus Makwanyane and unanimously declared that the death penalty was inconsistent with the constitution, the stage was set for the reform of South Africa’s judicial architecture as set in the constitution.

“In the following eight years, the Constitutional Court went on to decide important cases which gave body to constitutional norms.”

Since then, the post-apartheid judiciary has grown from strength to strength; continuing to place statutes and other decisions through the constitution’s compliance sieve. In a seemingly inconsequential move, the judges dropped the European aristocratic titles, “My Lord” and “My Lady”, for “Justice” so and so.

Says Moseneke: “The substantive import of the change of the form of address was to rid our judicial system of the useless remnants of colonial trappings and to move closer to the values of our constitutional state.” He adds: “High-flown titles in themselves don’t render incumbents any more diligent or honest or effective in their tasks.”

Without belabouring the point, he invites the reader to consider “other arms of the state” where “many have chosen inflated labels but the actual honour or excellence is often strikingly absent”.

In a passage in which he seems to feel obliged to restate the obvious, Moseneke counsels: “No one becomes a judge for the money; money is made elsewhere. And no one becomes a judge for popularity or fame; popularity one has to search for elsewhere, too.”

This studied indifference to personal gain came to serve Moseneke and his colleagues well when they were later accused of partiality, judicial trespass and unfairness “in cases that concerned [former president Jacob] Zuma”.

As citizens, we can only hope that our judiciary continues to be populated by women and men imbued with such nonchalance. Moseneke’s subtle pen conceals much of the pain experienced during that season of “abundant political warfare” and “the dog fights for public power and influence” that “entrapped” the courts. But it will not escape the discerning reader, for it protrudes outwards, sometimes as if it were flares, in the book’s measured prose.

He is constrained to point out that: “There was not even a scintilla of evidence to support [the] reckless accusations” of judicial partiality. Coming in particular from a lawyer, the expectation that the accuser ought to provide evidence for their claim is unsurprising.

One of the worrisome features of South Africa over the past 15 years has been the entrenchment of a tendency which consists in the belief that “it is correct because I say so” and its equally indolent and intrinsically fascist accomplice, “if you do not agree with me, therefore you are wrong”.

One site of the skirmishes of the era was the alleged improper conduct of Judge President of the Western Cape Division of the High Court, John Hlophe, which was lodged with the Judicial Services Commission (JSC) in May 2008 by all the 11 Constitutional Court judges. It is still unresolved to this day.

Hlophe stands accused of attempting to influence two of the court’s justices to rule in Zuma’s favour over the August 2005 Scorpions raid on Zuma’s lawyers’ offices and those of aerospace, defence, transportation and security manufacturer, Thales. Perhaps for reasons of prudence, Moseneke only records as “unacceptable” the JSC’s more than 10-year delay in resolving the matter.

Surely, the JSC cannot be oblivious of the hazards to the rule of law when the guardians of the constitution preside over everyone else’s matters while theirs are shielded in a maze of technicalities. Or is it? As Moseneke notes: “The law should never be an ass. Ideally, law and fairness should never part ways. The two should never diverge.”

He makes another fundamental and related point about state building: “It is a difficult task, but a happier one, to build public institutions but, as our recent history has attested, it is a much easier task – and horrifically so – to empty them out.”

Contrast the foregoing with the earlier remark about the fresh optimism that sprung in the aftermath of the 1994 elections. Moseneke’s obvious point about judges, money and popularity is not only apposite, but sacred. All Rise also records some rib-cracking and nail-biting moments in the court’s work.

Space unfortunately does not permit narration of one of them, the Tatiana Malachi incident which took place during a court hearing and another that would have caused much commotion among ilk of lesser pedigree. Read the book and find out.

Ratshitanga is a consultant, social and political commentator

Mukoni Ratshitanga. Picture: Neil McCartney

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