Interview with Adv Dikgang Ernest Moseneke
October 2002
Judge Chaskalson: Good morning Mr Moseneke. Without anyone defending you, you were convicted of quite serious charges and sent to Robben Island.
Adv Moseneke: That is correct.
Judge Chaskalson: Was it that that raised your interest in law or was it something else?
Adv Moseneke: Well, Justice Chaskalson, that was sort of my first cross examination or an attempt at it. It was before Justice Cilliers in the Synagogue. So yes, that was my first attempt at dealing and grappling with legal rules and of procedures.
Judge Chaskalson: Yes. How old were you?
Adv Moseneke: I was fifteen then.
Judge Chaskalson: And how long were you sentenced for?
Adv Moseneke: I was sentenced to ten years imprisonment and I immediately was transported to Robben Island.
Judge Chaskalson: Now on your release from Robben Island you practised as an attorney for some years.
Adv Moseneke: Yes, I did the normal articles over two years and the firm ??? in Pretoria and then I practised as an attorney for five years and after five years then moved on to the Bar.
Judge Chaskalson: Yes. And when you went to the Pretoria Bar had they at that stage relaxed their racial clause or was it at the time of your appointment that that racial clause was relaxed?
Adv Moseneke: Yes it had just been relaxed. When I applied the deliberations for relaxation of the racial bar had just been completed and after I think several attempts by me at the Pretoria Bar they could not get a two thirds majority so I went to Johannesburg first for that reason because they had not approved it for pupillage.
Judge Chaskalson: So you did your pupillage in Johannesburg?
Adv Moseneke: I did pupillage in Johannesburg because I couldn't go to Pretoria and whilst I was in Johannesburg then of course the two thirds majority was passed and being a Pretorian it was natural for me to gravitate back to my mother city so I went back to the Pretoria Bar.
Judge Chaskalson: Yes. And then you practised and after a fairly, comparatively short space of time you took silk.
Adv Moseneke: Yes. After twelve years I took silk.
Judge Chaskalson: I thought it to be a little bit shorter but it was ten or twelve years at the Bar before you took silk.
Adv Moseneke: Yes, indeed.
Judge Chaskalson: And then you practised as a silk at the Pretoria Bar.
Adv Moseneke: Yes, I did.
Judge Chaskalson: You were also active in the technical committee on constitutional issues in the Kempton Park negotiations.
Adv Moseneke: Yes. It was quite a privilege to be there. You chaired the Committee…
Judge Chaskalson: No I didn't chair the Committee. Like you .... it was Prof Venter I think who chaired it but you played an active part in the debates on the technical aspects of the Interim Constitution.
Adv Moseneke: Yes, indeed.
Judge Chaskalson: And then after that Constitution had been adopted you were still at the Bar but I am afraid the business sector got hold of you. Is that what happened?
Adv Moseneke: If you remember I first went to… I was appointed as Vice Chairperson of the Independent Electoral Commission together with Justice Kriegler. So for a good four months - it was six months all in all .... two months after we were obliged to run the elections. Again it was a privilege to be there at the birth of our democracy.
Judge Chaskalson: Yes. And then you spent ... you were pulled more and more into the business world and away from the Bar.
Adv Moseneke: That is true. I went to act. I was invited by Eloff JP as he was then to act immediately after the elections and I acted for a full term and yes, after that I moved onto business. In 1995.
Judge Chaskalson: You then spent five/six years deeply involved in business at a very high level.
Adv Moseneke: Yes, indeed.
Judge Chaskalson: That must have also been quite a broadening experience in regard to different aspects of life?
Adv Moseneke: Yes, certainly so. One has the privilege of course of working at a fairly senior level. I was chairman of Telkom which was going through major transformation and it had to be prepared for listing and I had the privilege of being at the helm of that process, of modernising it and getting it ready indeed to become a premier company which I helped ease and should be listed in the market, conditions permit. I also got involved with Nail. So yes, I had a lot of opportunity to deal with a wide variety of business issues. Mergers, acquisitions, applications before a variety of tribunals like the Competition Board, a variety of permit granting bodies.
Judge Chaskalson: And I think throughout that period there were people nagging you to come back to the legal profession.
Adv Moseneke: Yes. I think most people should remain unnamed, who they were. Yes. I think the one thing I lived heavily with was the fact that I think most people thought if you like I was a sell out to the profession at least that I had moved on to do what they thought I shouldn't be doing and rather that I should be at the Bar. Or related to the law in some way.
Judge Chaskalson: Yes. Some people thought you might put your name forward for the Bench too. Mr Moseneke you ultimately, some months ago, decided to terminate your commercial interests and to make yourself available for the Bench.
Adv Moseneke: Yes, that is true.
Judge Chaskalson: Now there are really two things I would like to ask you. The first is as far as the termination of your commercial interests are concerned has that been finally wound up, your commercial interests in so far as your responsibilities, your directorships and other matters are concerned?
Adv Moseneke: My answer is yes. You will remember that because the positions were so high profile, I mean I was CEO of the largest empowerment company, Nail, and chairman of Telkom which is on the verge of listing, I could not take up an acting appointment and still keep any of all those activities. That appeared so mutually inconsistent, so obviously I had to resign and the one being a listed company there also had to be a public announcement and Telkom being on the verge of listing there also had to be a public announcement. So yes, I have completely resigned. In other words if I am not appointed here I will have to go and look for a job in other words.
Judge Chaskalson: Good luck. You were really an executive. You held executive chairmanships in those functions so it was really your day to day activities. Now when you got back to the acting position how have you found it? Did it take a little while to find your way back or did you just slip in quite naturally?
Adv Moseneke: Well, my Judge President is sitting there next to you so I have to be cautious what I say.I have been there for three months now, appointed by the Minister to act in the Transvaal Provincial Division. At the first time level obviously it was quite pleasant, very warmly welcomed because I knew virtually every judge and every judge knew me. So too most counsel. Certainly 80% of the counsel. So from that point of view it was quite easy to adapt and having acted there before. At a work level I was struck by just the volume of the work that one had to do in the TPD and I have been put through the motions I think. I don't know if it is intentional or planned but I ran the urgent court throughout recess up to Monday at 10 a.m. I have been through different facets. Through trials, through motion court, through appeals through the income tax court. So I have been put through virtually every nook of the business of the division. I would be leaving the court last. I think I had to read more than the other judges. I have to look up every provision and to read up every case that is referred to by counsel and I hope that way that I would come to full speed. But it has been manageable.
Judge Chaskalson: You are now 54 years old?
Adv Moseneke: Yes. I will turn 54 in December. I am 53 now.
Judge Chaskalson: Thank you Mr Moseneke. Other colleagues will want to ask you questions.
Adv Bizos: Mr Moseneke, these unnamed persons that tried to influence you to remain within the law, that was one sort of pressure. Was there any pressure on you from persons interested in transformation of our society not only in relation to law but in relation to business and what was called black empowerment companies that you should make a contribution to that sphere as well at the time that you made the decision to temporarily sever your relationship with the law?
Adv Moseneke: I think because we are going through a transformation phase and by that I really mean that the insufficient skills going around to meet the demands of a changing society. My going to Telkom for instance was motivated by both Minister Pallo Jordan at the time who was the Minister of Communications and the President at the time. They said there are indeed other lawyers who can do what you are doing but we would like you to go and grab Telkom by the scruff of its neck and really bring it into a modem company. So again there I was minding my business as a silk at the Pretoria Bar and I was not entirely without work. If anything because of the transformation I was the State Attorney's counsel of choice. I had a very large flow of work. For instance from State Attorney, from many commercial firms. So yes, there was pressure at the time and I remember Mr Mandela specifically spending time to say to me it is an important institution. It is the information age and you must go to Telkom and provide leadership so that it can move on into the company that we want it to be. And on the black empowerment front you would imagine there is quite a big quest for leadership and not everybody thinks that I have done the right thing from those quarters. And I think it will stay like that for quite some time until we develop sufficient talent to meet all the needs of our society at large.
Adv Bizos: Did you promise those that were pressing you to remain within the legal profession that you would come back?
Adv Moseneke: Yes, each time I was approached by these unnamed people I certainly kept on saying that I would. I came out of Robben Island at the age of 25. I went at 15 and that is all the work I did. I mean from there I went to articles. From articles I became an attorney and then became an advocate. I then took silk. Acted on the Bench. So it was sort of a logical progression and yes, I always committed to people that I would come back. The issue was just the timing. Just how old or how young do you actually revert back to law.
Adv Bizos: Would that be a fulfillment of that promise, whether you are appointment or not?
Adv Moseneke: Yes, as I said earlier I don't have any other job now so if I am not appointed I would have to retreat into my bedroom and take council from my wife on what else or what next. So I have cut ties with all any employment or any job that I might have had.
Adv Bizos: Thank you Mr Moseneke.
Minister Maduna: Mr Moseneke I must actually confess that I am one of those people who placed you under tremendous pressure maybe in this invidious position but my question really is what are you views if any with regard to what we need to do as South Africans to eventually have what one would call an ideal truly representative judiciary. If you have any views in this regard. I am asking this question particularly because you know as well as I do about the tremendous problems blacks and women are going through as far as the practise of law in South Africa is concerned. You and I are aware of the Johannesburg situation for instance at Innes Chambers where people complain that they are not being given any work that would indeed prepare them in the direction that you have taken yourself. So my question really is do you have any views on what we ought to do in the country to deal with this situation?
Adv Moseneke: Well I guess I should be a little guarded Minister. Thanks for asking the question. Is it presumptuous having been away for nearly seven years… I think to achieving a representative judiciary, profession I think it is what our constitution enjoins. If it doesn't say so in so many words it says it implicitly but fairly loudly and it is also a social necessity I think. Societies that tend to give forth institutions that are not representative of their populations, they tend to go skew over time and fail to fulfill the reasons why they have been established for so I think it is an imperative that that should be achieved. That should be achieved, I think, in conjunction with high levels of skill that the law requires. The one obvious thing to do I think is to find ways and means to bolster the profession at large. The three months that I have been at the TPD what struck me was the increasing gap between young black practitioners and women on the one side and high levels of skills at the middle to top end. A particularly skilled counsel and attorneys. Attorneys you see from the paperwork that comes before you and counsel from the heads and the argument they present but it is an amazing absence of that same level of excellence just the middle and lower end of the Bar. The work ethic is low. The preparedness by the time appearance comes by these young counsel is nearly absent and therefore there is no appropriate reservoir to create that representative institution that is ideal for our country over time. I accept it will take time but I think
the starting point should be a cadet scheme of sorts. It is done all round. It is done in business. In think it is quite in order to identify' a hundred, two hundred, three hundred young people of all backgrounds and races and genders and subject them to a fairly structured programme that would impart in ten years time make them appropriate to serve in the Department of Justice. To serve in the National Prosecution or other levels of prosecution. In other words they would constitution a reservoir which I seem to think is absent. I don't think it is an effort that should be left to the Black Lawyers Association or to the National Association of Democratic Lawyers or to some law society. I think it something that should probably be placed within in framework of, if not legislation, somebody entrusted with the cadet scheme to create waves of one, two hundred young people who would then serve as a feeder programme. It is done all the time in business. All the time. As a feeder programme to ensure continuity and to ensure, I think, ultimately a representative profession and a representative judiciary and we have to wait for about ten years to get to it but if we start it now we will have the feeder programme well up and running.
Minister Maduna: I thank you Chairperson.
Adv Moerane: The Honorable Minister took the question out of my mouth. I have to disclose as we are bound to, our association which stretches more than ten years while you were an attorney and I got some briefs from your firm and as you disclose in your C.V. we worked together out in the sticks during the troubled years of the mid eighties which brings me to my next question. How many languages are you comfortable with?
Adv Moseneke: I looked at the Constitution just before we came here which has become pastime reading material for me. It just struck me that one can read and write nine of the eleven, read write and speak nine of the eleven. I am happy Cyril Ramaphosa is not here. I can't write Venda. I have smattering of Venda and I can't write Xitsonga but for those two hopefully I would be able to read, write and speak nine of the eleven.
Adv Moerane: You have no difficulty in corresponding and relating with sixty or so accused you represented in Xhosa which was an eye opener for me. Now, you have been asked about your directorships etc and you say in your C.V. that you have disposed of them, relinquished them. Does that include rounding up your share options and the like?
Adv Moseneke: The answer is yes. It does. It is a total disposal. I have no share options of any type in any company. It is a complete clean break and I had to bow as CEO of a company so when I left somebody had to take over as you know, so I have no options in any company of any type.
Adv Moerane: Finally I just wish to confess that as one of those applying pressure on you to come back where you belong. Thank you.
Mr Moosa: It is customary to confess here when a candidate is interviewed that we know one another and that I have been a very good friend of some members of your family for many years. I just wanted to raise one matter with you Adv Moseneke. There is this perception out there that the legal profession, the judiciary is a grey, staid, conservative profession. It has got no colour. There is no mobility. There is no career pathing and for want of a better word there is no glory and what is happening and the sense one gets is that this is one of the reasons why we are having such difficulty in transforming from a representivity point of view the Bench and so forth in this country. What can be done. What needs to be done to change this perception? What is it that has happened in the business environment and so forth that attracts so many young black men and women who aspire to move in that direction but who don't go into this profession and in this direction? In your view what needs to be done?
Adv Moseneke: Well thanks. I would hardly pretend to know what the answer to that is. I would plead guilty to suggesting to a number of young lawyers who are leaving the profession and going into business. I have been keeping a tally these last three months in the TPD something close to forty to fifty percent of the candidates we admit now are women and people of colour so that is salutary. That means that the universities are getting graduates out. It means they are getting into articles and it means they are coming out there to be admitted. That interested me for the reasons I have mentioned about the cadet scheme. It just struck me that clearly young, bright .... you just need to look at their matric passes and you look at the university grades which you get for admission purposes. So clearly it is the cream of the crop that is coming through and becoming attorneys and advocates. Heartening. When they get admitted and congratulated they get "Namens hierdie Bank word u geluk gewens". "What are you doing" "Oh I am working for the Department of Labour or I am working for Anglo American. I am working for one or other I.T. company"
So they do get the qualifications, put them in the drawer and go out and do something else. I think there are enormous opportunity today in business in South Africa and we must just accept that. We have succeeded in one of our ideals. We have opened society and I think more and more, almost imperceptibly, more and more companies are employing particularly young black people to come into their ranks. Go to front managers, go to insurance companies. Go to I.T. companies. There is amazing talent that goes to business. Business pays obviously nearly five to ten times what the civil service pays. That much. Young accountants, young lawyers start with a salary of nearly between three and five hundred thousand rand per annum. Which is nearly what a judge earns. That is what they start with. So the one thing is the money. The other thing is that glamour. So coming back to your question yes, I think probably the profession is going to have to go back and say what communication should be put and I think the Department of Justice has a big role to play, you know to bring back the excitement into the profession by actually positioning it. I don't think it is going to happen automatically. I think we need a great interaction between for instance law schools and the Bench and the profession to try and show the centrality and importance of the role that I think the profession and the Bench provides. That is the ultimate lure of society. Everything else they are able to make money for the very reason that there is a framework, legal and constitutional that permit free economic activity. So if they understand those things .... in short I think there is some
need for going back to the thawing board and finding ways not just to glamourise but to put in proper perspective the fact that if you are a judge there is a meaningful role that you can play in society and that the information society as it is today has room and needs urgently rules that are interpreted appropriately by competent people and who do it. For instance the one big criticism against the law from business people senior often is people don't have a turnaround time. There is no sense of turnaround time. They write and give judgments three months after the case has been heard. There is no sense of the new world that calls for efficiency, that calls for where you are counted for results and not for your title and for who you are and so on. So there are a number of things I think, communication wise that needs repositioning of the profession for it to survive.
Mr Moosa: Do you think that a lot of it has to do with the way in which the profession has been structured and the manner in which for example there are many back magistrates in this country. Many black prosecutors in this country. Many people who have chosen this particular career pathing but who almost seem to be stuck in the system. There is no growth. There is no mobility. There are no possibilities that they can get into leadership positions. Do you think that is one of the problems? But there is another problem and that is that there isn't sufficient marketing of this profession and the work it does in a conscious strategy that says this profession, the choice you made for example, that this profession is not about money and becoming wealthy. That is the business profession. This profession is about building a wealth of jurisprudence about being in the leadership in the forefront of regulating society. Administering justice which are high ideals and lots of glory in them. But do you think that a marketing campaign or something like that, the kinds of things businesses do, corporations like Telkom do, is what is necessary to turn this around?
Adv Moseneke: There should be a budget that is put aside and I think that judges should be more involved with law schools. I have no doubt about that. Judges should be more involved with training of articled clerks and I think there should be a conscious effort. For instance the work of the Constitutional Court which has been excellent. Even in the last seven years, outstanding. I don't know if it reaches young people except as a headline that something has been set aside, something has been approved, something has been disapproved. So yes, I think we are going to need a helluva marketing programme. But magistrates and prosecutors I am surprised at just how many young black magistrates and prosecutors are there. You see it with review work. Very many. In fact you know the system has changed to that extent but the stuffiness hasn't gone. Many get admitted now as advocates and they work hard and get to that level but they are district magistrates and they stay there.
There is nowhere that they can go to and the conditions of employment. So there is some work I think to be done to get the stuffiness out to bring a little more light into it but also to make it value driven. It must be about values, yes because there is no money to throw at judicial officers or at prosecutors. But I think there is the kind of thing that the Americans sometimes do with their army and so on. We must find some glory of sorts. I am not talking about what's happening now. I am talking about just the way just being in the army is elevated and a marine. So it is those values that would build pride into the profession. Being a G.I. Being anyone of those.
Some of the older judges I know were saying, those that you find in Pretoria, they are saying it is so easy now to be a judge.
Even people who are not worthy to be judges are here. So somehow they think there has been a devaluation of even the status of judges which I obviously don't agree with.
Mr Moosa: In other words what you are saying we need some kind of a paradigm shift here. That is really what we are looking for. Finally as a last comment from you. Recently there has been some very disturbing terminology and talk that has been going around. Things like that Innes Chambers is now a ghetto. A ghetto where you have lots of black counsel and they are wild at times, hanging out and taking little bits and pieces and crumbs of work and that all the lucrative work is going to nice white counsel based in Sandton and there is this perception that black counsel just don't get good work. They just don't do nice things you know and companies who may even want to go in that direction seem to be dissuaded by this perception, this talk that goes around. What needs to be done to do something about that some very good people have left recently for example Adv Mpufu recently jumped into business and a number of other people who were attempting who were trying to stay in the profession left and will probably continue to do so. But you know what needs to be done to change this perception that black counsel can do very well actually, that they can do as well as any other counsel in this country and should therefore be given the opportunity, the breaks and the briefs?
Adv Moseneke: I will be very brief about this. The State is the starting point. I think it is so obvious. I remember so well when I was at Telkom I mean people who dealt out work had to account for how they did it. Being a conscious effort. I think the State Attorneys are the starting point. Then the Department of Justice. I think most parastatals are doing their damnedest. They are really doing quite a bit. In fact the black junior Bar is being kept alive by parastatals. The Transnets, the Telkoms and the Escoms. But there are no senior black counsel currently, not as in silk but as in senior/juniors. They aren't just there and that is where I started. If I get a job, I hope I will be able to make some contribution towards that particular programme about which I feel very passionate. If there is no reservoir you can't have these ideals achieved. So some work has to be done and the Government has a big role to play in putting briefs on the desks of young counsel of all colours but those who suffer most now happen to be black so that we can have a vibrant profession. The Legal Aid Board for instance I think can be resourced so that it provides work for young counsel and the whole range of other institutions that can actually very consciously provide work for young counsel.
Judge Chaskalson: Thank you Mr Moseneke. You will be glad to know that these were some of the things we were talking about on Monday and wanting to do so. Perhaps if you were to be appointed you will have some… I understood you to say that you would be very interested in bringing your business skills into this.
