Interview with Adv Dikgang
Ernest Moseneke May 2005
Judge
Chaskalson: Good morning Judge Moseneke. You and I have known each other for many years and for the past year or so we have been together in the Constitutional Court. Judge Moseneke can you go back to your first experience with courts. When was that?
Judge
Moseneke: Thank you Chief Justice and members of the Commission. I am trying to work out …. It was in 1963 Chief Justice.
Judge
Chaskalson: How old were you then?
Judge
Moseneke: I was fifteen.
Judge
Chaskalson: Yes, and what happened then?
Judge
Moseneke: Well I was a standard eight student in Hofmeyr High School in Atteridgeville and one morning the security cops came to the house at about three a.m. and I was arrested for being part of political activity on the campus at high school but thousands of people were arrested throughout the country and as a major scoop if one might remember at the time large numbers of members of the Pan African Congress and African National Congress were arrested and were charged in a variety of courts and I was charged for sabotage as it was called then which really amounted to political activity because there was no violence involved and there was no harm or damage of any type and many of our young people were indeed arrested and charged. The immediate example which comes to mind, I think, is Deputy President Zuma who was just convicted in a different part of the country as I was convicted in Pretoria. So many, many of us went to Robben Island.
Judge
Chaskalson: Before whom did you appear?
Judge Moseneke: Chief Justice I appeared before Cilliers J in the Synagogue in Pretoria and Sydney Kentridge together with Ivor Schwartzman appeared and they sought a postponement before the Supreme Court as it was called then and it was declined and they were obliged to withdraw as counsel because they just had no time. We were in ninety days detention which meant that there was no opportunity to consult with counsel or attorneys and Godfrey Pitje was our instructing attorney. So Godfrey Pitje was obliged to withdraw as an attorney so did Sydney Kentridge and Ivor Schwartzman. Then came a gentleman called Davis from the Bar in Johannesburg. I think he was a silk then too. He applied for a postponement. It was again refused on the second day and on the third day Cilliers J chose to continue with the trial. That was a few days after, you know emerging from solitary confinement.
Judge
Chaskalson: So the trial then proceeded. You were fifteen. You had no legal defence and you were convicted and you were sent to Robben Island for ten years.
Judge
Moseneke: Yes. My first cross examination was then yes. I had to cross examine the police myself and I didn’t do a very good job because I got ten years imprisonment on Robben Island.
Judge
Chaskalson: When did you decide you were going to do law. What led you into law do you think?
Judge
Moseneke: Well Chief Justice immediately I arrived on Robben Island, I had not passed standard eight so law appeared in the distant future because I was only fifteen. I was in standard eight. I thought I would have to pass standard eight and in those days those who are old enough will remember that there was a certificate for what was called then “Junior Certificate, JC” so I thought the right thing to do would be to pass JC and I studied through a college called Rapid Results, I think it was called at the time and studied and sat for exams and to my total credit and privilege I sat together with Mr Walter Sisulu in the same exam room because he had also decided now to take up formal education now that he had life imprisonment. So we both wrote standard eight but he was clearly a very distinguished Secretary-General of the African National Congress, very well read. He had just decided now it was time to get certificates and we sat in the same room and wrote the exam and Achmat Kathrada tells the story of what happened in that exam room in relation to newspapers and so on which story he tells in his biography which I had almost forgotten about. But I passed standard eight and then sat for matric. At the time Robben Island and the liberation movements had developed an education system. In other words if you had passed standard eight you were required or expected to teach those who would be illiterate and those who did matric or who had matriculated would then teach those in standard eight and so the hierarchy went. Those who were graduates then taught those who were in matric and the system started working from then on and which supported many of us who were still busy studying.
Judge
Chaskalson: When you had served your ten years had you yet had a law degree or did that come afterwards?
Judge Moseneke: Yes Chief Justice. I studied a BA degree on Robben Island in English and Political Science and there was a lot a time because everything allowed you to work in the cell. On the weekend you were in the cell so you had …. I read more books then than I would ever read in my life because it was just this golden opportunity to learn. I read from Opperman to Dostoevski. From War and Peace to Karl Marx. It was an amazing opportunity just because of the time that was available, every evening, every weekend.
Judge
Chaskalson: How did you get to Karl Marx?
Judge Moseneke: There were two warders whose primary function was to do censorship. They censored letters that were coming in, that were written by prisoners out. We know they were not very diligent but also there was a warder whose function was to censor books that you ordered from UNISA for studies. Remember you are a prisoner so you would have to use the library and that you would order books from the university and they were kind enough to sent these to prison. Doing Political Science I would order books for academic purposes and Karl Marx was available for academic purposes but the warders were not diligent so the books came, they ferreted around a little bit and passed them on and indeed it was … Mr Harry Gwala for instance used to give all the lectures and I would get the books for all the people who wanted to read about Karl Marx got it from me because I was studying Political Science.
Judge Chaskalson: Judge Moseneke you ultimately got your law degrees and you started practice as an attorney. You had to be an article clerk first. Was it easy to get articles?
Judge
Moseneke: Chief Justice not but not as difficult as one would have expected. I had a prison record. I had just come out of prison and it was difficult times. It was 1973 and the usual irony of the South African society it was taken up by an Afrikaans speaking law firm in Pretoria, Dayson Attorneys and you will remember the Minister of Foreign Affairs was a partner, senior partner and a discovered later that the security police felt more comfortable if I worked there for easier supervision. But yes, I went to Dayson and I did one year at Dayson doing articles and I moved on to Klagbruns another firm in Pretoria. I think they took quite a significant risk. It was a predominantly Jewish firm in Pretoria and they gave me articles after which I completed LLB then, then I was admitted as an attorney.
Judge
Chaskalson: You established a firm in Pretoria. How long did you practise as an attorney for?
Judge Moseneke: For five years Chief Justice. Immediately thereafter we established Maluleke, Seriti and Moseneke and the firm flourished significantly. In no time the partners were many, articled clerks many and for five years I was a partner in Maluleke, Seriti and Moseneke in Pretoria and I can’t resist saying that all three of my partners are now judges, two of them serving in the High Court in Pretoria.
Judge
Chaskalson: Yes, and then you decided you would come to the Bar and you did your pupilage I think in Johannesburg.
Judge Moseneke: I did my pupilage in Johannesburg for reasons which I think best mentioning. At the time the Pretoria Bar still had a constitution that excluded people of colour as members of the Bar and in all fairness to them they had had two rounds of voting trying to amend the constitution but they needed a two thirds majority to do that and they had not yet obtained a two thirds majority. You must understand you get younger and younger advocates so that they could make up a two thirds majority so whilst they were trying to build up a two thirds majority I went to the Johannesburg Bar which was open to everybody and I did pupilage there. I did have the privilege of appearing before you and Judge van Dijkhorst as examiners and you made me pass.
Judge
Chaskalson: When you completed your pupilage I think by then the Pretoria Bar had amended its constitution or did you have start at Johannesburg first and then move to Pretoria afterwards?
Judge Moseneke: I had to stay in Johannesburg for a while and shortly, within a year or two they obtained a two thirds majority and I just remembered the other day and I was saying to Justice Harms that he was one of the people who played a very significant role in pushing the Bar in that direction to actually amend their constitution.
Judge
Chaskalson: Yes. You practised as a member of the Bar and you took silk, you became senior counsel after about ten years in practice or less?
Judge
Moseneke: Yes in the eleventh year.
Judge
Chaskalson: Let me go back a little bit in time? You were one of the founder members of the Black Lawyers Association.
Judge
Moseneke: Yes, I was.
Judge
Chaskalson: When would that have been?
Judge
Moseneke: In 1978 and we were led then by Mr Godfrey Pitje
Judge
Chaskalson: Yes.
Judge Moseneke: Well the obvious riling point initially was around the impact of the Group Areas Act. If you were a black and an attorney you could not practise in so called white suburbia or a so called white town. You were prohibited by law and we decided that the best we could do for ourselves would be to defy that law, to set up practice in towns and dare the government to charge us for public and selfish reasons because I remember our firm reasoned that if we were charged, Maluleke, Seriti and Moseneke for defying the Group Areas Act, we would increase our practice substantially. A lot of people would rally behind us and the firm would get known and therefore it would become a very substantial firm. We hoped and hoped but it never happened. The government did not just charge us so the plan in a sense, at that selfish level failed but it gave birth to the Black Lawyers Association which was committed to a number of things but principally I think to facilitate young people becoming lawyers, being trained in anticipation of a change of the society.
Judge
Chaskalson: It suggests a certain entrepreneurial quality which you displayed later in your life but we will come to that. The Black Lawyers Association, it grew over the years. It engaged in education, did a bit of litigation and largely building up people and giving them …..encouraging them to get into practice and to support them when they were there.
Judge Moseneke: Yes. Chief Justice yes and we followed your example at the Legal Resources Centre. We set up a legal education centre. We appointed a director, a full time director. I sat as the inaugural secretary of the centre and I spent a lot of time there together with a lot of people. Adv. Gumbi for instance became the next director at the centre. We litigated on a range of matters but I think more importantly the main thrust was training black lawyers. We ran courses in advocacy and many products of that programme are sitting on the Bench today. We established branches nationally, throughout the country. It grew very fast. We had a subsidy scheme for young articled clerks. It was difficult to get articles and most black law firms were small so we would find money and pay for the articled clerk, to help the firm afford keeping an articled clerk and that mushroomed into a large body of lawyers who are serving this country today.
Judge
Chaskalson: Yes and at the time of the constitutional negotiations, at the time the Interim Constitution was being drafted at Kempton Park you were a member of the technical committee which helped to draft the interim Constitution?
Judge
Moseneke: Yes indeed. It was one of my privileges. One sees it in the context of the past, my particular past. It was quite a special moment because it really meant a very fundamental vindication of what one stood for and what one was striving for. You chaired the committee, you led us.
Judge
Chaskalson: I didn’t chair it. I was on it.
Judge Moseneke: You were co-chair I think with Professor …. I can’t think of his name now, from Potchefstroom.
Judge
Chaskalson: I think Prof Venter chaired it.
Judge Moseneke: Prof Venter, indeed. Prof Venter. I think you co-chaired it anyway.
Judge
Chaskalson: Yes, and you had been a silk for how many years when the new Constitution came into force Judge Moseneke? It had been some years already.
Judge
Moseneke: Three years.
Judge
Chaskalson: Three years and around about that time you made a career move. You were drawn into business. When would that have been, when you started in business?
Judge
Moseneke: It was in 1995. Perhaps it is appropriate to say that President Mandela who was president at the time, felt quite a strong need to have State enterprises being transformed and I was minding my business practising and I was approached by Minister Pallo Jordan who said the President would desire that you should go to Telkom and help reconstruct Telkom now that you had not accepted an appointment on the Bench and I agreed, on a part time basis. I became chairman of Telkom and in no time, within a year it was clear that it had to be a full time job if one was really going to transform and help Telkom to move along. That is really how it started and whilst I was there then I was head hunted by Dr Motlana and lured into being the Chief Executive of Nail and that of course took five and a half to six years of my life in business.
Judge
Chaskalson Would it be correct, Judge Moseneke, that you always indicated that you wished to come back to the legal profession even when you were engaged in these activities?
Judge Moseneke: Yes. I had hoped that I would find a point where I would come back. You will remember quite well, Chief Justice, you and I had a long extended discussion one of the evenings in Kempton Park. We were talking about my future and what next is going to happen. You appeared more certain what you were likely to do and I thought I was young and I though I needed time to get into the broader world and not accept a judgeship at the time. That played quite an important role and I consulted a variety of people. Advocate Moerane here amongst others and a wide variety of people about the wisdom of an early appointment and I chose to widen my experience, to get into the broader world, emerging from oppression and limited opportunities so it became quite a fairly conscious choice but with the clear intention of coming back to play a public role.
Judge Chaskalson: And you indeed did come back. You were appointed first to the High Court in Pretoria where you served for some time and then to the Constitutional Court where you are now.
Judge Moseneke: Yes.
Judge
Chaskalson: And on the way you have received thirteen awards. Some doctorates, some awards including a plaque of honour presented to you by the Pretoria Bar who had originally resisted your admission.
Judge Moseneke
Yes.
Judge
Chaskalson: Yes. Now tell us Judge Moseneke how you see your role, if you are appointed as Deputy Chief Justice, what you see about the judiciary, the present and the future. Just talk to us generally, I think, about our Constitution, the role of judges, whatever you want to talk about and we will intervene from time to time.
Judge Moseneke: Thank you Chief Justice and members of the Commission. Before I do so I would like to pay a few tributes if I may. In the course of my career there has been enormous support which one has enjoyed from the early times and in a strange way it was principally from a variety of South Africans. As I suggested to you I served my articles principally with an Afrikaans speaking firm, moved on to a principally Jewish firm for articles, set up practice and I had overwhelming support from the community. They used our services as attorneys, a number of organisations and I was briefed quite handsomely by a variety of people, some are sitting in this room. I think Mr Nkanunu comes to mind as one but just about every other firm that was progressive in this country found occasion to support me and I think it might be the right moment to acknowledge it and in a strange way the support has been, as I said, very widely spread. It has been predominantly non racial in its character, clearly with more support from black African communities than others but none the less there has been wide spread support and I would like to acknowledge that and some people here present have made public statements and expressed encouragement and support and I think it would be appropriate to acknowledge that. I have a mother who is nearly eighty years of age and she has always said to me I am totally stupid. I have no reason to go into business because I know nothing about it and the proper place is to go and serve your people as a lawyer and she phoned me this morning and repeated exactly the same words:
“You owe your being to your people and you should go back and serve them”
I think it is appropriate. I know many people, most of the commissioners around here. I was telling a story this morning about Mr Koos van der Merwe and I got into Bermuda and Cyril Ramaposa, I think Roolf Meyer on one of the American sponsored discussions out of the country. The Aspen Institute took us there. We together walked on that grave site, you remember very well and there we saw tombstones, a variety of people who clearly were South African in origin, Boer Prisoners Mr van der Merwe calls them, and he wept and Cyril and I and himself in a strange way it was a cathartic moment because we had political differences but we understood human suffering. We all understood the evil of man against man, woman against woman. The British colonialists who had taken Afrikaner males and females prisoner and it was power misused and I could relate to that immediately with our own position, our own African people viz a vié the oppressors so that was quite a special moment that we shared and so one has built friends right across the country in a wonderful way
Chief Justice the second tribute I think must be to you. This is your last sitting on this body. In all fairness I am not saying it because you are my outgoing boss but I am not currying favour but I think it is appropriate that we should pay tribute to you. I had to fight the Apartheid system. I knew it when I was ten, twelve that I had to change my circumstances and those of my people. You did not have to but you joined the ranks to try and change our society. You did a number of wonderful things. I repeat again you did not have to but you found some moral source of obligation to do it and you have led us amazingly well up to now and I would like to make that public. That is my position about the way you have been there, the way you understood what the nation needs and you played that role and we hope that we will be able to, if we are allowed, to take on that tradition and if there is room for improvement, to do so in order to serve our people. You know and I have said that to you in private discussion and publicly I am deeply committed to this continent. I love it deeply and whatever opportunity I have I will affirm it at every instance and I would hope that we would, in doing that though, have the discipline that you showed and jurisprudentially to remain faithful and honest in order to extend justice to all in our country. So really I would like to thank you for everything that you have done so far. In a strange way it has been quite a close path between yours and mine certainly for the last nearly twenty years.
When the President called me and asked me will I accept if he were to nominate me for the job of Deputy Chief Justice I said yes and I think I should repeat that to this Commission and say yes I would consider it as an honour if I were be recommended to appointment. At a personal level I think the circle becomes near complete in the journey that you invited me to take this morning for which I want to thank you. It has been a hard long journey which requires emotional resources, integrity and commitment to remain ready and available to serve our people at this time and I thank God that I am healthy, I am well and I am willing to make a contribution. I do think that the next decade will pose very special challenges Chief Justice. That is so because we will be moving out of our initial political liberation honeymoon and as a people we are going to have to make good the promises which are set out resoundingly in our Constitution and which we continue to promise our people. Always fairly well summarised in the phrase “ a better life for all”. I think that is what we have promised and that cannot happen in a lawless environment where the rules are blurred, where democracy is absent. The Constitution enjoins us to be accountable in our governance to be transparent and these are mere tools in order to achieve ultimately to change lives of the people that we promised we would and I see the court as a crucial instrument. Not in a proactive way as the executive does, making budgets, getting out and actually putting up structures. The court, as the Constitution requires, would be there to make sure that the rules are observed. The larger nominative system of the Constitution is upheld and the court, the Legislature and the Executive all of us would respect our respective roles in order to have a co-operative governance that the Constitution requires us to have. So from that point of view Chief Justice I think the special glue that must remain ever present will be the rule of law and the courts are going to be the ones who are going to have to deliver on that front.
I do believe that if I have the opportunity I certainly would and I am passionate about the changes that our Constitution requires. Much has been done by this body and others in the judiciary. I think more has to be done and can be done. One thing we need more females. It is common cause they are the majority in this country and they should ideally be the majority in the judiciary and we have to find and devise collaborate strategies with the Executive and the Legislature to achieve those objective and it is a very important, I believe, precondition for a just society is to make sure that you ultimately have the majority of judges being female because that is how our society is structured. Much is made about the balance of race in the judiciary. It is important but even more important, I think, is a jurisprudential transformation of our judges. By that I mean the complete acceptance of a constitutional state we have created, to adjudge cases in accordance with the broader injunctions of the Constitution and to find harmony between it and other areas of the law and therefore inevitably I think judges should train judges and make sure that they have the mark of quality we would require to advance the jurisprudence that the courts have developed in the last ten years. So they must see the healthy, healthy balance between transformation in the context of mere race and the transformation of the quality of the judges, their commitment to the society that we have pledged ourselves to create. I am not talking about political commitment. I am talking about commitment to the values of the Constitution which should guide us all the time whatever ones political persuasions might be and therefore I think it is a legitimate area in which we should be active and engage in order to make sure that our judiciary gives us what the country deserves. Which lastly really brings me to a much more, I would hope, a more integrated model of how do you source these judges and that model had to involve exclusive law, it must involve the profession. It must be integrated. It must involve the Executive who must fund that training and participate in a way that is acceptable to everybody. The Legislature. So unless there is a proper source we can’t have the quality of judges that I have just talked about. Like accountants, like engineers, like nurses, like any other profession you need a constant reliable quality driven source which will supply and maintain the values of a society that we set ourselves to create. There has got to be a lot of creativity around that, the law schools and who ever might be Chief Justice. Within that whole range, you are going to need all the actors. You are going to need Parliament. For instance it is quite shameful in a country such as ours where the government is 60% key litigants in the courts but they have maintained briefing patterns of the past. It is totally shameful. More and more young women have come into the profession but they are not being briefed. The government has the power in the sense that the Executive litigates everyday to make sure there is a proper equitable spread of work that allows us to train young people and make them part of that reservoir for good judges which this society cannot live without. So these are some of the things that we clearly would have to, if I had the opportunity, I would want to have part in helping, advising, supporting.
Lastly Chief Justice in this terrain I think it is appropriate to say my undisclosed premise as a judge is I hate oppression, I hate inequality, I hate stereotypes, I hate prejudice, I hate unfairness because I have seen that. I have lived that and my pledge, I think, to this nation is I would never fail them on that score. I would bring the best of my ability to the fore to protect every single person worthy of protection under the sway of our law in courts and that would be so because it is my own personal article of faith.
Judge Chaskalson: Judge Moseneke thank you. May I just interrupt you for a moment because I need to leave time for people to ask very specific questions which they may want to put to you and we will have time at the end to wind up if there is something which needs to be said, but before I do that there is one thing I do want to raise with you. You have spoken to me about some press reports of litigation which is taking place involving Mr Mandela and his former attorney and I don’t want to get deeply involved in that because it is pending before another court but your name had been mentioned in it and in the context in which it appeared in the media there was some suggestion that there was an allegation of fraud which might involve you. I have looked at the correspondence and I am not sure whether that is so but I haven’t seen the papers, but I think perhaps you should just, if you wouldn’t mind, just tell us what it is you asked me to do so and I think this Commission ….you are entitled to tell us about it and this Commission should know what you have to say about it but it is pending before another court so I would ask you to be said.
Judge Moseneke: Thank you Chief Justice and members. In June 2004 Mr Mandela caused a letter to be forwarded to Mr Ismail Ayob and I believe you have copies of the documents. It is marked ‘NRM 8’. The letter is about Mr Mandela’s personal and family affairs. Very, very briefly Mr Mandela writes to Mr Ismail Ayob terminating his mandate as his attorney and tells him that he would like to rationalise his personal and family and financial affairs. He signed the letter and had it forwarded to Mr Ismail Ayob. In the letter Mr Mandela has attached a schedule of people who he would like to now be his trustees in his personal and family affairs. That you will finding the letter on page 236 and in several of his trusts. He has written that Messrs George Bizos, Wim Trengove, Temba Sangoni and Dikgang Moseneke should be substituted for the existing trustees. The schedule shows the existing trustees and those he would like substituted. That is also true of private companies which hold personal family assets of Mr Mandela. Need I say that it was ….the letter was replied by Mr Ayob. It is marked ‘NRM 9’. Chief Justice has copies of all these letters, in which Mr Ayob said that:
“….may I have the CM 17 forms duly completed for each of the companies and trust together with a letter addressed to the South African Revenue Services by one person accepting appointment as public officer. Then I will attend to the appointment of a new directors and the resignation of the existing directors.
This was in reply to Mr Mandela’s letter which I have just referred to and Mr Mandela’s new attorney then lodged with the company’s office a letter saying that it is Mr Mandela’s wish with signed CM 27’s I think and CM 29’s that Messrs George Bizos, Bally Chuene, Dikgang Moseneke and Wim Trengove be substituted for the existing directors. You will remember that Mr Ayob had said that he would facilitate that and he supports that and he agrees and shortly thereafter another letter came from Mr Ayob where he objected to the attempted change and writes in amazing language that he thought that it was attempted fraud on the part of the attorney and those that the attorney wanted to represent and he would report the matter to the police. Again there was a letter which I have given the Chief Justice where you see it sets out the reply was sent to Mr Ayob suggesting that these are very reckless allegations which are entirely baseless and that he should retract these allegations. Nothing has come out of that in the sense that he has not written back and the rest is history in the sense that the matter is now before the High Court in Pretoria. So in short Chief Justice firstly there was no conduct on my part which approximates anything close to that and secondly he was really complaining about an attorney who was trying to change… to move present trustees for new trustees, present directors for new directors at Mr Mandela’s request to which Mr Ayob agreed and really that is the long and the short of it.
Judge Chaskalson
: I don’t necessarily read it as any allegation against you personally but as far as I can tell from what you have said is that you personally had nothing to do with this administration in sending through a document. It was all done by the attorney’s office and you personally had merely agreed to the request made to you by Mr Mandela.
Judge
Moseneke: Indeed.
Judge Chaskalson: Yes. I think now Judge Moseneke I must give members an opportunity to put questions to you that they may wish to put.
Adv. Moerane: Thank you Chief Justice. Judge Moseneke I think this is the third time that you are appearing before us and as is traditional we are bound to disclose the extent of our knowledge of a relationship to the candidate. I have known you for a generation now starting from the time when you were in partnership with presently Judge Maluleke, Judge Seriti and Judge Mavundla. Your erstwhile firm seems to have done very well and we have also worked together on a number of cases. The one that I remember most being the trial of fifty eight accused persons from Philipstown who were charged and tried two hundred kilometres away their homes at a place called Victoria West. While we are talking about that trial most of the accused there spoke Xhosa and you were able to communicate with them without the use of an interpreter which brings me to my first question. How many languages do you speak?
Judge
Moseneke: Thank you Chief Justice. Judge Moseneke I think this is the third time that you are appearing before us and as is traditional we are bound to disclose the extent of our knowledge of a relationship to the candidate. I have known you for a generation now starting from the time when you were in partnership with presently Judge Maluleke, Judge Seriti and Judge Mavundla. Your erstwhile firm seems to have done very well and we have also worked together on a number of cases. The one that I remember most being the trial of fifty eight accused persons from Philipstown who were charged and tried two hundred kilometres away their homes at a place called Victoria West. While we are talking about that trial most of the accused there spoke Xhosa and you were able to communicate with them without the use of an interpreter which brings me to my first question. How many languages do you speak?
Adv.
Moerane: Being?
Judge
Moseneke: Setswana, my home language, Afrikaans, English, the three versions of Sesotho – Sesotho, Setswana Sepedi, isiXhosa as you have mentioned, isiNdebele. Is Mr Mahlangu here? Yes he is, he could test me very quickly. That should make it nine.
Adv.
Moerane: And obviously knowing the Nguni languages you would also be able to understand siSwate.
Judge Moseneke: Oh yes. I have left it … indeed. My wife is Swazi speaking so I might earn myself a divorce if I don’t acknowledge it. I certainly can speak siSwati.
Adv. Moerane: Yes. Justice Moseneke if you are confirmed in the position to which you have been nominated, that of Deputy Chief Justice what would you consider as your main or special function or role?
Judge Moseneke: Well the first role is to support the Chief Justice. I should also pay tribute to him, now Deputy Chief Justice Langa. He is very steadfast. We have worked together. We spent a lot of time forming Nadel together with George Bizos who was our leader. We spent six months in the ‘Stompie’ trial defending Mrs Mandela. We spent many hours at the Nadel executive meetings together with the former Minister Dullah Omar so yes he is a very worthy Chief Justice to be in a few days time and I would like to say my principle role would to give him to support to make sure that he is able to execute his role as I have no doubt he will and give him the support he needs for him to achieve that. That is the first key priority. The second, I think, is to create an appropriate rapport together with the Chief Justice with the Portfolio Committee on Justice and Constitutional affairs, with the Executive, the Minister, with the Executive at large to achieve common goals. The third perhaps the first in a certain sense indeed is to make sure that the judiciary is efficient. It does what the Constitution requires it to do and its independence is just simply a ‘no go’ area. It is uncomprimisable. It is a foundation and a cornerstone of democracy so I would make it part of my duty to safeguard that from any quarter a threat might emanate. It is often assumed that it emanates only from the Executive some people would say but in real terms independence has to be safeguarded against any other challenge even from members of the public generally. Fourthly, I am quite obsessive about the notion of creating a veritable reservoir of young people who could supply the judiciary with what they need. So those are the four key areas I would like to isolate at this stage.
Adv. Moerane: Thank you. I won’t ask you any further questions but I do wish to make a comment in that relating to any suggestion however faint of fraud on the part of yourself, Mr George Bizos, Mr Wim Trengove and Mr Justice Sangoni, people who I personally have know for a very, very long time, one is just to state it to reject it. Thank you Chief Justice.
Judge Moseneke: Thank you.
Mrs Camerer: Thank you Chief Justice. I think Judge Moseneke go back a long way as well. We met in 1989 in England which of course was a sign of those times. Anyway I was utterly delighted that you made the commitment to encourage more women on the Bench and your statement that women should be in the majority. I do want to say today that the Minister and I are not usually here isolated. All you see is men on this Commission. There are other women members and I don’t know why they are not here actually but it is a problem and I am delighted that you have indicated that you are prepared to grapple with it because it is a problem that faces us at every meeting of the Judicial Service Commission. Too few women candidates come forward. We raise the issue of why and perhaps you have got one or two ideas about why so few women come forward and what specifically you think can be done quite apart from the fact that you indicated judicial training is a very important aspect of that but I think you also indicated and I think Chief Justice designate Pius Langa also indicated that government should do more about briefing women. You didn’t say women. He said women to the Portfolio Committee and I am glad that you indicated that there will be more perhaps frequent interaction with the Portfolio Committee of which I am a member. Judge Moseneke having said that I would like to ask you, the issue of judicial independence is very much in the public discourse at the moment. You have in your response to Adv Moerane indicated some of your views on the issue but I wonder if you would care to elaborate a little bit because it is something that has been intensively discussed with just about every politician in the legal area and legal academics and putting pen to paper and giving their view. So I wonder if you could give a more detailed view of how you see judicial independence possibly touching on the affect of substantial independence and post institutional and also if you could go into a bit more detail on what you said about judges being in charge of training and perhaps any other aspect that you feel is important to the issue, perhaps you would like to tell the Commission. Thank you.
Judge Moseneke: Thanks Mrs Camerer. Yes, indeed we come a long way you and me. I might add as a young, young lady I saw you then and I see you now. You have changed little so indeed we do and we have debated many, many a matter. But let me get down to the issue. Clearly there is no one definition of what institutional and substantive independence of the judiciary means and many jurisprudential debates about at what point do you say a particular system actually guarantees independence of the judiciary. Let me also add that it is entirely healthy for our democracy to debate institutionally what form independence should take and substantively what form it should take and therefore there is nothing wayward about it. I have people say well we are going down a slippery slope. I think not. I think it is quite appropriate for us to have that debate because after all we are a society in transition and every single thing is being tested anew, looked at afresh and that is proper. Talking about substantive independence the test I think can be formulated fairly simply. Are judges of a particular jurisdiction hampered, influenced in the manner at which they arrive at decision in courts or tribunals? In other words is it open to them to arrive at decisions which they find just and equitable in each case or not? That is the most basic and the most fundamental level is a judge at large to make such decisions as she would find appropriate in those circumstances of that case? That is the simplest level also important as it is because institutional arrangements could indeed indirectly impinge on a judge’s ability to act in freewheel. That explains the traditional safeguards we find in our constitutional legislation and in others and these start with the way judges are appointed right through to the way their post retirement arrangements and all of these should as far as possible be free from institutional pressures that would indirectly exact compliance from the judicial officers and traditionally what happens normally salaries, benefits and allowances of judges may not be decreased but only increased. So too their post retirement arrangements as well as their working conditions generally. The purpose of the safeguard is fairly plain. The more difficult issue always is what form should the support, the administrative support should take? Who should appoint people who would work in courts in non judicial capacities? Is it the Executive? Is it Parliament? Is it the judiciary itself? It is complex because it is a grey area and it is a matter which is going to require quite careful planning. The United Kingdom which is an obvious immediate example because of its colonial history you always find the line between the home, people appointed by the home office to do administrative work and those who are appointed to do judicial and quasi judicial work. A distinction is always made and I would hope would find an arrangement which would not have schizophrenia . People would want to show commitment to the Executive on the one side and commitment to the judiciary on the other side and I think our techniques to further protect institutional independence but it could never, ever in my view, get to a point where … can you imagine a situation where the Chief Justice’s budget is qualified by the auditor general? It would be an uncomfortable situation. So we need to debate and say what is the best institutional arrangement that would work for us but many countries, people who work in court and so on are employees of the Executive and the closer they come to the function of judges, the judges themselves apply them and they are appointed only in consultation with judges because issues of loyalty arise and I am quite confident that a model could be found that would not convert judges into administrators tomorrow. At the same time would not get the Executive into the terrain of the judiciary in a way which impinges on a judge’s ability to deliver judgments independent of any external influence and particularly independent of Executive influence. I hope I have answered the question and not left any part of it out.
Mrs Camerer: The women aspect. Do you have any ideas?
Judge Moseneke: Oh yes. I feel quite strongly about that. I suspect principally initially because of my mother. We were four boys at the house and she was the only woman in the house but she made sure that we had absolute respect for equality of gender. My mother was quite an important player there. She still is. You see our struggle for change has always been about equality, its achievement and in particular about gender equality because at least half of us would be disabled to make a contribution that they legitimately should make in our society and in the African society in particular we have to do more work. We have to liberate our women. They have to emerge from our traditional past. We should tread carefully but indeed we should be strident to make sure that the liberation which is at those levels and one of the ways is to make sure that women find their full glory in the society that we seek to make and women judges would do it more effectively than men judges would. Our court decided Bhe which dealt with male primogeniture rule. It is no so peculiar to African society. Kingships and things all over the world have been regulated by male primogeniture you had to be male to accede to a throne. You have to be male to inherit. What are we saying? We are really saying women must stay poor for ever because inheritance is one of the effective ways of acquiring means of livelihood and if you stamp it an say it is peculiarly African then you have to say are things peculiarly African oppressive? Is that what they should be? So we should tread quite carefully. We should … our society should consciously and actively get out there to root out gender inequalities and the courts would be a very loud example. Justice O’Regan, Justice Mokgoro, Justice Kampepe. Those are very prominent examples. Justice van Heerden, … and so on the list goes but those are just too few so I would hope that the State, the Minister is here, the Executive would be telling the State Attorneys of this country tomorrow, if I had anything to do with it but you will produce schedules that show your briefing patterns and statistically the Portfolio committee would make sure that the State Attorney and the Minister when they come to account they tell where the briefs have gone to and if we consciously engineer in that area we should be able to find the balance that we need. That will reverberate right across our society. Domestic violence, issues of rape, issues of equal opportunities. If female judges would sit side by side with progressive male judges to achieve these objectives. So I join with Chief Justice Langa there. We should pay special focus on creating female judges and many of them would move on. After training they don’t become judges anyway to influence society in a variety of salutary ways besides on the Bench or in practice.
Mr Burgess: Thank you Chief Justice. I just have two questions judge. On the question of language the official language of record and the language that judges seem to traditionally produce their judgments in seems to be English. What is your feeling on the official language and the language of record? Do you think that English should be the language in which the law reports and the judgments and things come out. That is my first question. The second question is something I have put to the present Chief Justice at the Portfolio committee. The debate around independence of the judiciary seems to be concentrated only on the High Courts and the Constitutional Court but the Constitution allows for the judiciary and there are a whole other range of courts be included in the judiciary. There is the Magistrate’s courts, there is a Labour court and there is a Military court. I just wanted to know what your view was and as Deputy Chief Justice and the Chief Justice do you see yourself as playing a role in enhancing the independence and the way those courts operate. Thank you.
Judge Moseneke: Thank you Mr Burgess. Two very difficult questions. There are no ready solutions to anyone of the two but let me give you my views. Language naturally is the medium through which we carry not only thoughts but we also convey who we are, our cultures, our past, hopes of our futures and often people do their best in their own languages. In my home we do speak Setswana on a continuous basis, it is our home language and we use it. The compromise is where you come here you have to speak English so the question is what should the courts do. I think the starting point should clearly be our Constitution which enjoins all of us to respect and advance all official languages. That is the broad principle and all therefore notionally, constitutionally have equal worth. At a practical level the legacy of our colonial past is all around us. For better or for worse there is more English than any or most of us would like to have and see and therefore there is the whole convenience element to it. There is a practical necessity to it and this body I think set up or heads of court have set up a sub committee that produced a report. There is a majority report and a minority report and I really commend it to you because the answer has not been found yet but the central issue really is the simple end is when a litigant would like to use a particular language or clearly the courts are obliged to find the means to do so. Somebody says I speak Portuguese you have to find an interpreter for that person in court. So that is the easier end of it that there is a choice all the time. In our court you want to use a language other than English you have to give notice and then after that arrangements will be made for appropriate translations up front. So citizens now can and often do assert their right to use their languages. The question is the record, the language of record and I would make sure that we debate the issue and I think it should be debated more broadly. Not only by judges. Much more broadly. It has cost implications every time but frankly it comes down to if a judge were to use isiZulu, the state will have to find the money to translate the record. Our court has recently done a case which had a trial in Afrikaans mainly. Those whose could not thoroughly follow it, those sections were translated and those of us who could read it, read it and those who couldn’t it had to be translated. So there is a big cost implication and I don’t think it can be resolved quite immediately but I would hope a day will come when judges will use just about any language that they would like to use. The record would be in the language of the litigant and those who would want it in another language the State should find the money and the means to make it accessible to those judges who are not able to access the language and I suspect I won’t be one of those.
The second point about independence of the judiciary in the other courts, I think it was Chief Justice Chaskalson who made the point in van Rooyen and it was made quite often about ….the Portfolio committee has made the point also about a single judiciary, the notion that judges are judges where ever they sit. Judicial officers are judicial officers and they need the same protection that is necessary for the highest court in the land. There will be variations but indeed our past has not always been like that. We know that. You know magistrates have been drawn mainly from the ranks of prosecutors and therefore they would have a past that is civil service driven. Well over 80% of our cases are heard in those courts, the Magistrate’s courts so clearly the judiciary, Parliament and the Executive is seized with the matter. It is an area where we would have to intervene. Some things have happened lately which are quite salutary but the heads of courts and the Magistrates Commission is chaired by a judge and I talk to Judge President Ngoepe quite often about his work there. He is attending one session this very time that we are speaking and the salary system of magistrates has now been moved and is housed with the Independent Commission for the Remuneration of Public Office Bearers. Again it is a salutary move so they are considered side by side with judges and a lot of work has to be done and I think I would want to be part of that process of gradually together with the ministry which has quite a substantial role because magistrates by and large are still regulated through the ministry in order to create the levels of independence that are necessary even at courts other than the High Courts and Supreme Court of Appeal and the Constitutional Court. The Labour Court, you are aware, that there are attempts to integrate it into the court system. I will have to study a little more about the Military courts. I don’t think I know enough to be able to give you a meaningful answer on that front.
Adv. Bizos: Justice Moseneke there are aspects of your life that I want to recall to your memory but I would rather you told us a little bit more about it which I have gained not only from you in our conversations but also some of the people whose paths you crossed. I will start with the conclusion that you appear to lack bitterness, you attempt to reconciliate people of different colour, different ethnic groups, different cultures and if you are appointed Deputy Chief Justice can we expect that you use the same endeavours and even with greater vigour to bring about a sort of reconciliation that you brought about even in your very young life if you are appointed Deputy Chief Justice?
Judge Moseneke: Mr Bizos thank you very much. It is a very generous question but thank you. Yes, that is one of my deepest commitments. When Chief Justice asked me initially I thought I ended up at that point to say that it is yes, my hopefully unfailing commitment that I would want to make. You see, talking about bitterness, Mr Bizos …..
Adv. Bizos: Or lack of it.
Judge Moseneke: ….. or the lack of it rather, that you talked about, it has been a difficult past. It has been a difficult past for all of us. Mine is just one small example but it has been a difficult past for the whole nation. It has lasted centuries and to remedy it, it called for popular revolt and mobilisation to come to where we are. But once we came to where we are, not just me personally, our Constitution is reconciliatory. It is embracing. In fact sitting in it is that embracing communal African value of accepting every body for their worth and you will not in this country find anybody who suggests that there should be any section of the community that is oppressed. Aside from a black and white issue it is a very entrenched thing, not just about me, it is about all people of this country. You can see it from its Constitution. You can see from the absence of attempts to revenge and I think it sits much much deeper in the psyche of the people of this continent but there is something else to the pact, it is reconstruction. You often hear people readily and conveniently talking only about reconciliation. The other side of the coin, the part of the deal is reconstruction. Those have been excluded by processes that have been unfair of our unjust past expect, and rightly so, that processes will be underway where we would reconstruct together and recreate opportunities so my lack of bitterness is well paired and tuned with a very conscious commitment to transform society. The other side of the coin is that we shall ensure everybody has access and black Africans in particular because they sit at the bottom of the pile and they are entitled to move up and find their own and find a fair shake of the country in which we live so we will have to go out there and train them to spend resources on schools, for children learning under trees, we have got to eradicate that and allow them a fair share and that is how I see my world. There is no time to waste hating others. There is all time to require of them to help us change and reconstruct this country in a non racial, non sexist environment and that is where my strength personally comes from and I think that is the strength that informs our Constitution, that informs all of us, the Government and its people. So yes, I don’t think there is room for that and lastly for us to achieve that we should be even handed from all of us, I think, black and white South Africans. Too ready too quickly you find sections of the Community which sometimes feel that you know their world is less fair than it should be but part of the deal is we must together reconstruct this country. We must transform it together. It must be a joint commitment and I would hope that I would be able play a role, even handed, inclusive and make sure that every single person is accorded justice and fairness in this country.
Adv. Bizos: I want to just remind you of two examples briefly. You reconciled the prisoners from two entirely different ideological extremes on Robben Island. You put an end to the bitterness between the Pan African Congress’ convicted prisoners and the African National Congress’ convicted prisoners. The so called organised profession took exception to you being coming involved in the Black Lawyers Association. They were also very upset when the Democratic Lawyers Association …. and yet you managed to reconcile or help to reconcile all three of them for the benefit of the profession as a whole. I give these two examples because they may not be known to members of this Commission. Can we expect that sort of fervour continuing in all the difficult fields that we have to find solutions? Can we expect it to continue?
Judge Moseneke: Thank you again. You are very generous Mr Bizos. Thank you. Yes, I remember when I was young and I was a boy scout. You know that colonial institution “on my honour I promise to do my best, my duty to God, my Queen and my country so help me God”. It would be a privilege if one is allowed to and I think we have a great country and it deserves a great judiciary.
Adv. Bizos: Thank you.
Adv. Masutha: Thank you. Judge Moseneke from the younger generation I can attest to the fact that you have been a household name from the days when one was still a law student in the eighties right up to the early nineties but also to attest to the fact that indeed I can speak of many of my peers who in the early nineties when it was difficult to penetrate the white law firms, the big law firms, that the programme that the Black Lawyers Association ran did support them at least to penetrate the black law firms which couldn’t afford them because of not having enough work. The one issue that I would want to take you up on relates to the development and nurturing of this very miniscule, at this stage, pool of young black lawyers especially in the commercial sphere of the legal profession. You suggested that you would assist in both in so far as briefing patterns in government but also with the law firms. I wanted to focus more on the issue of the law firms. What measures do you believe could be taken up by the big law firms to ensure some movement in regard to black young graduates obtaining the opportunity to acquire commercial law skills?
Judge Moseneke: Adv Masutha thank you. First one should acknowledge the trend. The brightest young people who come out of university and in particular young people of colour are being taken up in large numbers by big predominantly white law firms. I think the trend is there if one goes out and looks at it. Unsolicited I get often annual reports of a large number of big law firms. I think they want to show you know the work they are doing. So it is appropriate to start off by acknowledging that there is a process. All the A grade students, every single researcher I have had, and I must remind Chief Justice, I have been working with him for three years, this is my fourth year working with him, but they all get articles in large law firms so that is to be welcomed and we should acknowledge that. More has to be done and I think in the same pattern as we talk about the State Attorney once more I think it is a collective effort. The Portfolio committee, the Ministry, us who might be given the opportunity to be part of the leadership of the judiciary, the profession. We could engage the profession on a scheme, a voluntary scheme where they would take even more. Many do for a number of reasons, also including procurement requirements of government, procurement requirements of large companies and so on so there is a process going on but I agree with you that we could have an Indaba around the issue, set for ourselves targets, voluntary targets, and see just how much more we could do. The difficulty though of course is that most of those young people serve the country in various ways but at this stage they are going to all need about ten, fifteen years to really come out of their ….. for personal reasons, their ages, they are all around twenty three, twenty four, twenty five. So you need at least another twenty years before you convert them into judges. But it is a process that I think we should start right away and once people know that they are being acknowledged and we are ticking the blocks as they make their contribution to this transformation I have been talking about it normally works so much better than coercive means so I would hope that we would find a plan like that together with Chief Justice Langa and find voluntary participants in taking more and more young people. Almost like the same scheme that the Black Lawyers Association had where we asked people to take on clerks and acknowledge them in some way for doing it.
Adv. Masutha: Thank you Chief Justice.
Adv. Seligson: Justice Moseneke we have also known each other for quite a long time. First as colleagues at the Bar in connection with several Bar conferences and also in the International Academy of Trial Lawyers and more recently in the role of judge and counsel in the Constitutional Court. My question requires me perhaps to just remind you of your experience as a legal practitioner. You were an attorney for five years, then you were, from 1983 to 1995 at the Bar. For two of those years you were a Senior Counsel. In that period you were also a leader of the Black Lawyers Association and you also, I understand, served on the Pretoria Bar Counsel. Now my question, which ties in with that background is, what is your view as to the role of the legal profession and particularly the Bar in preserving and promoting the rule of law and an allied question how important is it to have in our constitutional state an independent legal profession?
Judge Moseneke: Yes Mr Seligson, it is good to see you. On the plane I met somebody who said that he knows you very well and I must pass my regards but I must confess to being prejudiced in favour of the Bar. I suppose if I were to be appointed one would have to shake one’s head and be even handed really with the president of the Law Societies of South African here, but I can’t personally think of a more congenial and efficient institution for training young lawyers. Indeed there must be and there are others maybe colleges and the law societies have done well in their own right. Having been an attorney and an advocate and I think the Bar is rigorous. I think it teaches you independence. You have to put bread on your table, yourself, alone, supported by you colleagues, by advice and institutionally but generally its you and you and you. You have to get out there and do it. It is an institution that has always required the utmost levels of proficiency, high standards of practice and integrity has always been the hallmark of the institution frankly. If something went wrong you were off immediately. A similar outburst as was done by Mr Ayob, the Bar too would have taken it up and required of me to explain it is about or what it is not about. So it is, and I hope it will survive and grow as an institution that trains and produces independent minded lawyers who would adorn our Bench as we go along. I do not, however, believe the Bar is the only source. I do believe that talent sits all over and that academia should make a contribution in producing judges. Attorneys have done so now with great distinction, those attorneys who have been appointed, most have served us very well which just makes the point and indeed I believe the reservoir, we should make it wide open and the Bar must fight for its space side by side other trained people, properly qualified as required by the Constitution for appointment. Clearly as I said I am prejudiced. My own preference would have been the Bar should see more and more and I would hope that we would find a way of working together. I know you have been active in the management in the General Council of the Bar in various capacities will find a way of restoring to it the ability to attract more and more young people. My experience is that most of the bright young people are going to the big law firms and that the Bar tends to receive those who may not have made it at the law firms and often it is a recipe for great challenge. It is not impossible but it is quite difficult. So we should think through and I know that the profession has been doing so and continues to do so but for all our sakes we need to preserve the Bar and make sure that it is part of the sources from which we could serve the rule of law.
Mr van der Merwe: Chief Justice I will be brief. I just want to wish Judge Moseneke well. We are sure you are going to be appointed but you are also serving …..
Judge Moseneke: I beg your pardon?
Mr van der Merwe: I am sure you are going to be appointed but there is another position that you have and that is the Chairperson of the Moseneke Commission which is looking into inter alia the salaries and pensions of members of Parliament. Now I am calling on you, I am urging you to use your courage and wisdom and skills to ensure, Judge Moseneke, that the salaries and pensions of members of Parliament are drastically improved.
Judge Chaskalson: Mr van Heerden do you want to add to that?
Dr van Heerden: Chief Justice, yes I am now really in a predicament you know. I wanted to ask a very difficult question to Judge Moseneke but now I am in serious doubt whether I should but in any case, be that as it may. Judge everybody revealed when they had previous encounters with you. My previous encounter with you wasn’t a very pleasant one in which you gave judgment against me. The judgment went against me. Be that as it may I didn’t perceive that as a negative judgment. It actually felt like a sentence but in any case where your court didn’t endorse my perception of unfairness and I really respect the judgment of the court. My question to you is, Judge, you said quite correctly that the Constitution embraces reconstruction as well as conciliation. Now I understand that these are two very difficult concepts to give effect in practise. You also said something that transformation must be non racial and society must be transformed to non racial and non sexist society which I fully endorse. Do you see at this stage, at this stage, that there will be an end where one can really reach a stage where one can say this society now is non sexist, non racist? What I mean is if there is an applicant in a hypothetical situation again … let me explain that to you. Where we have and we are often confronted with this situation here in this Commission where we have applicants equally qualified, equally experienced for a particular vacancy on the Bench and then sometimes the Commission must decide whether they will fill that particular vacancy with a female, I am now talking about black people. I am not talking about white people, black people. Whether they must fill that vacancy with a black, slightly less experienced, but not incompetent, not at all, female judge or with a male judge. My perception is that, and I also endorse that, your vision of quality judges that one should look at the best applicant in order to prevail and maintain the quality of justice. Would you go along with that? That it is a difficult situation. You have a female applicant with slightly less experience than a male applicant, referring to black people. My perception would be, I would go for the black male and not for the black female in such a situation. Would you go along with that?
Judge Moseneke: Well Dr van Heerden, thanks. That is not a yes or no kind of question that requires a yes or a no. You see, when you have multiple objectives to achieve and judges are called upon to do that quite often you have to try and mediate this contending trend in order to achieve what would be just, what would be equitable and at different times you would put emphasis at different things. Judges have to be competent because they have a job to do but also judges have to be diverse and representative because that evens out the risk of stereotyping and prejudice and perpetuation of particular reasoning patterns so if you have more diverse people, hopefully all competent, but being representative of our nation, you are likely to have more balance than otherwise. A simple example is claims by a female litigant on rape before say three judges who are all males. I do not think they are going to crook her but I do think that the insight of a female judge amongst them would be valuable. They would introduce circumstances which would allude male judges so if you add a black judge amongst the three then you have yet another perspective that would enrich, I think, would not detract from the fairness of the outcome so diversity is a very important part of our society and I would, if looking at the total composition and it was appropriate to appoint a female judge, I would appoint a female judge even if she is slightly less experienced in order to achieve yet another goal of much greater diversity and we are going to have to make these difficult decisions as we go along but remember we are a multi cultural, multi lingual and multi everything else nation and part of our winning formula is going to be learning to live in diverse circumstances. I don’t have to be you but you owe me a duty of respect. You owe to accept that I deserve what human beings deserve and visa versa just as I owe it to you and we owe each other to deal with each other fairly so I would hope, and when I talk about transformation, I know that might sit in the question, it should be fair … the process and that is in the precincts of our Constitution but it is one of the imperatives of our society otherwise you are going to sit with twenty million poor people going nowhere, another twenty million well off people and that is not the pact. That is not what our Constitution requires. We must create a society where certainly most of us must have a fair opportunity to live well so I think it is going to be, or is seen as an irritant in some circumstances where people may be prejudiced. Our own colleagues say quite often, sometimes it comes with a bit of pain, we said that in the Bell Porte ???? judgment and in the van Heerden judgment we tried to make the point again but we have to try and try and reconstruct our society and make it better and I think it is going to take time. I don’t think it is going to take ten years. I don’t think it is going to take ….it took generations, it took centuries to get us to where we are. It is going to take some time but we have to do it with sensitivity, with care and with mutual understanding.
Mr Mahlangu: Just one question and a very brief one. Judge Moseneke I also know you for quite a long time from the Constitution making and the Codesa negotiations and we have know each other for some time right now and I can see you are very well known. Almost everybody here has worked with you in one or the other institutions. I am not going to ask for more salary as an Member of Parliament now but we can talk later on about that. We at times cannot avoid, Chief Justice, to put a question which is political. We are politicians. That is our job. I am going to quote this statement that is very common that we all know:
“South Africa belongs to all who live in it” Now my question is when you made your opening statement you touched an issue which is at our heart and our Constitution also embraces that and that is the question of the racial balance in the judiciary. Now my question is do your other colleagues share the same view that you have. I am sure you interact with them, you work with them. Do they think that there must be racial balance in the judiciary and if there is an opposing view how strong that view is and what are you going to do to correct that because I believe that if we share the same view as our Constitution says it is easy to run the justice system collectively and defend those who need to be defended in this country and respect the Constitution as we have drafted it? What is your view on that?
Judge Moseneke: Mr Mahlangu, yes, thanks. Indeed we have come a long way. Something I have forgotten, you are a law man yourself but we have come a long way yes. It is good to see you. Yes, indeed you were a judicial officer. I do think that too much is made of the argument that there is resistance to transformation in the judiciary. I simply do not think so. I think most judges do embrace our Constitution and its values and I do think that they take seriously the oath of office and I do think, on balance we have a country in which you can legitimately expect a fair trial, a fair hearing and you can expect honest deliberations by judges and I think they will generally act with integrity and with independence and judges, like all human beings, quite often respect the right to do their work properly within the space that is allowed by the law and the Constitution so I think you are going to find that we will make that hurdle. I think the real point that you are seeking to probe may well be what form should transformation take in the judiciary. What are the challenges that sit there? I mean that might be the real ….but to clear the decks I think judges in this country generally are committed. They are honest. They are hard working. They go way beyond the call of duty to make sure that they deliver what they are required to do. I think most judges would hope that whatever transformation happens it happens within the precincts of the Constitution and that it is the Constitution that should guide that process. I think there will be concern if people are overlooked over often, over time, I think Mr van Heerden alluded to that in passing but as I understand, given the statistics of this body, if one goes and looks at the number of people appointed and I speak subject to correction. If somebody said there were just as many white people as black people appointed if you take it on average over the duration of the life of this body I don’t really think there are judges who resist the notion that …..nor can they because the Constitution requires a representative judiciary so it is a constitutional injunction that has to be met. What remains an issue to be debated is a commitment to the values of our Constitution and I am yet to meet a judge who says they are not bound by it. I think they all understand that they are all bound by it and that there are no options because it is our supreme law. So I do think that as I said in the beginning that much is made of the fact that there is some level of resistance and I do not quite think there is and if there is clearly, I think, a body like this has a responsibility, the Portfolio committee, the judges themselves, all of us collectively would have and lastly, I think, the point should be made if we appoint people as judges we should trust them. We should trust them. You don’t entrust so much power in the hands of people who accept their roles as judges and you have to trust them otherwise you are going to create levels of tensions which are entirely unnecessary and I do think Mr Mahlangu that as we go along and we appoint more and more people and we get the kind of balance that we require, that the Constitution requires, some of the initial perceptual problems will be resolved. I know in the beginning of the Constitution some judges never even referred to the Constitution. They never said a word about it and some judge were used to the way they lived in the past, it was exclusively a boys club you know with a particular race group which excluded girls and blacks and lots has changed and I think people accept it that that is the way it is going to be and I don’t think there are pockets of judges who sit there saying we are going to resist the Government. I think increasingly they are embracing our society.
Mr Mahlangu: Thank you judge.
Anonymous person: I would like to ask the Judge a question. This is a public hearing.
Judge Chaskalson: I am sorry only members of the Commission can ask question. You are here. This is a public hearing but I am afraid the only people with standing to ask questions are members of the Comnmission.
Anonymous person: Can I ask an advocate to ask questions?
Judge Chaskalson: No, no advocate can come. Only members of the Commission may. I am sorry but that is the rules of the Commission, the way it functions.
Minister Mabandla: Judge it is not a question it is a comment and coming from the Executive I think I should really make this comment, and to say that I listened very carefully to your responses. I must say that it gives me such confidence in the future we are covering together that we have men and women indeed of integrity on the Bench, that while seriously protective of their independence they are committed to the national agenda of building a normal society, of bringing about, in fact, entrenching the values of the Constitution. In other words creating a constitutional state. I can only wish you well and thank you. I think that your responses to questions of transformation were all encompassing, were thorough and you actually dealt deeper and dealt with substantive issues that relate to transformation in a manner that can only inspire me from where I sit and hope that in fact we will be able to carry on from where my predecessor from the good work that Arthur and the other leaders of the judiciary in the past have contributed and it augurs well for the future of our country. In a sense I am just declaring my commitment with working with yourself within the boundaries set by our Constitution and the norms and standards that we continue to set ourselves.
Judge Chaskalson: Judge Moseneke do you have anything more to say to us?
Judge Moseneke: Chief Justice thank you for the opportunity and to all Commissioners I, having been here this morning, I have said much. I must confess to some level of intellectual exhaustion. It was a privilege as always being here and I really hope to go to some rest and some lunch after this but thank you ever so much and to the Minister and to you and to all the members present.
Judge Chaskalson: Thank you then Judge Moseneke.
The Constitutional Court has made reasonable
effort to ensure this is a proper reflection of
the candidate's interview with the Judicial
Service Commission. However, the nature of the
recording and transcription process means that
accuracy cannot be guaranteed.
