Judicial Service Commission Interview with Prof. Yvonne Mokgoro
Centre For Constitutional Analysis
Human Science Research Council
Wednesday 5 October 1994
Judge Corbett: Professor, I notice from your curriculum vitae that, certainly when the curriculum was drawn up you were busy on an LL.D degree, have you completed that or is that still ...
Prof. Mokgoro: No, no, no it is still progressing.
Judge Corbett: Still under way?
Prof. Mokgoro: It is still under way.
Judge Corbett: In one of your publications, I do not think it is a publication, but in one of the papers that you listed in your CV it evidently dealt with, I have not seen it I do not think it has been published, "Lay Participation in a Future Judiciary". Would you care to just elaborate a bit and indicate what the general thrust of the paper was and tell us a bit more about it?
Prof. Mokgoro: Well against the background of what has been accepted as the legitimacy crisis that the South African judiciary is suffering from, a number of proposals have been made to restructure the judiciary in such a way as to restore that legitimacy and that confidence that
South African society has to have in its judiciary, and amongst others it has been accepted, I noted in that paper,that some form of lay participation has to accompany restructuring endeavours, but in South African terms we have never really pinned down the nature and the form of lay participation that we would need to have. There has been, I noted in the paper too, a subtle debate within legal circles about this particular form, but nothing specific has really been identified and I made the point in that paper that South African lawyers generally whenever they mention the need for lay participation in the judiciary always confined themselves to whether or not they would need to restore the jury system, and unfortunately that is the limitations to which they have confined themselves and in trying to provoke debate I brought to the attention of, actually it was a paper that I read at a conference and it has now been published in a compilation of papers by Nadow, and in trying to provoke debate around this issue, I put forward a number of proposals in the form of various forms of lay participation,
amongst others once more in trying to revive the debate around the need to restore or not to restore the jury system. I made some proposals about the need to look at some continental systems of lay participation for example, the Danish composite system where positive aspects of what may be seen as a jury system and lay assessor system are combined. I made proposals about lay Judges being appointed with Judges during the adjudication process, but looked critically at the South African situation of assessors where it has been discovered that Judges do have a role in appointing assessors and my point was that that should never happen, otherwise it tampers with the independence of the assessors. The idea of introducing assessors to sit with Judges is to get community involvement in the judicial process and therefore introduce some kind of, besides the legitimacy of the process, some kind of enhanced independence, and I suggested in that paper that some form of selection process which does not involve officers of the judicial system, particularly the Judge who sits in a particular case should be devised in order to appoint
assessors. Looked at lay tribunals the role that it can play and very important looked at an enhanced role that traditional courts can play in a future judicial system as a form of lay participation looking at the current role and functions that customary law courts play within traditional societies. The informal court system, the adjudication process which focuses on reconciliation and where in customary law systems the win-lose situation of the adjudication process is absent, and the fact that ordinary people form part of the adjudication or adjudication structure, and I also looked at the infamous community courts and suggested that maybe we would need to look at those despite the controversy that surrounded them around the 1980's, look at them, revisit them and try to extract the positive aspects of those community courts because they were seen as community courts, they were owned by the community and the communities saw those courts as their courts and this is what we need to do with the South African judicial system. Get the community, the people, to own the system and understand it and perhaps if we do that
with modified customary law courts, modified community court system and try to take those positive aspects make them part of our judicial system and then we will be able to involve society in our judicial system and they will be able to identify with the system and maybe in a way reinject that legitimacy and trust in the judicial system. So essentially that is what it is.
Judge Corbett: May I just ask you dealing first with the lay assessors, did you contemplate this for criminal cases only, or did you visualize it operating in civil cases as well?
Prof. Mokgoro: Both criminal and civil. Both criminal and civil; I must be honest you know that conference was a little disappointing in the sense that I did not manage to get the necessary debate around the issues. That conference did not debate the issues. My idea was to throw in some provocative suggestions and I hoped that the conference would discuss, because we had a very diverse section of the legal circle there, academics, Judges, attorneys, advocates, legal researchers and I did not really provide the answers, I made the suggestions and I hoped the conference
would discuss and come up with suggestions. Okay? But I contemplated in both criminal and civil cases.
Judge Corbett: Now what would the role of the lay assessors be in the decision making process?
Prof. Mokgoro: Well, they would decide on matter of fact, and the Judge would decide on matter of law and ...(intervenes).
Judge Corbett: Would the Judge have a say on questions of fact as well?
Prof. Mokgoro: Of course. Of course the Judge would. And then eventually in criminal matters the assessors would also have a say in sentence, but they would be guided by the Judge all the time.
Judge Corbett: Supposing the matter coming before the court was purely a question of law, what would happen then?
Prof. Mokgoro: Well, I guess a matter cannot wholly be purely a question of law. You need facts to apply the law to and ...(intervenes).
Judge Corbett: Well if we could take an obvious example, an exception taken to a pleading.
Prof. Mokgoro: Well I guess in that case it would be the function of the Judge to make a decision.
Judge Corbett: So it would be confined to the trial aspect?
Prof. Mokgoro: It would be confined to the trial aspect I think.
Chaskalson J: Prof Mokgoro I would like to raise with you issues, the issue of customary law and the tension in the Constitution between the Bill of Rights, customary law and at a later stage the tension between the constitutional principles and customary law; I am not asking you for your view as to what the Constitution means or as to how the trouble should be resolved. I wonder if you could talk to us about what you see the tensions has been, or if there are tensions, if you see there are tensions if so what they are and how the whole issue around customary law, the formal Constitution and the formal law might play itself out over the years to come. Just to inform us generally of what issues need to be thought about and how things might develop.
Prof. Mokgoro: If you look at the status of customary law currently, it is quite different from, I mean in terms of its relation to the rest of the legal system, it is quite different from what it used to be until this new Constitution. Previously
customary law was regulated through the Black Adminstration Act and therefore had ordinary legislative status. But with its recognition and continued application constitutionalised in Chapter 11, my view is that it now has constitutional status. In other words any legislative reform in regard to customary law will have to comply with the Constitution or its status in the Constitution, and to my mind the reformation of customary law now has been made more difficult than it used to be. Although customary law in the past had been regulated by simple legislation and interpreted by the courts, it has not really, in my view, developed as sufficiently as it was supposed to, because if we look at current social practice, traditional social practice, it has progressed if I could say that, much more than customary law itself has. And unfortunately despite this obvious dichotomy between social tradition and its current progression and the fact that customary law has lagged so much behind social tradition, when customary law issues come up before a court of law, it is the customary law itself which is applied. In other words that
customary law which has lagged so far behind social custom or social tradition, current social tradition or social custom, it is the customary law itself which is applied. I will give you an example. If you look at the position of women in rural areas particularly today, where you find that women in rural areas constitute probably most of the population in those areas since the male sector of rural society have generally moved through the job situations to the urban areas; women are left generally to manage families, and you find that communities are managed, community life, family life is managed by women. Women therefore factually have a lot of say over for example acquisition of property and commercial activity around family property. But if questions of ownership, succession et cetera or family property arise, then if customary law is applied, the recorded customary law is applied. That which has lagged so far behind, and this causes problems, factual problems. So when the Constitution was drafted these were the issues that were taken into consideration and as you probably know, women were quite vocal about it through
the women's movement, including women, organised women's movement in the rural areas. What we got out of the Constitution therefore is the fact that customary law has in a way been, the recognition of customary law, that constitutional recognition has however been subjected to the Bill of Rights, and if we look at women's position particularly, which is particularly untenable under customary law, then Section 8, the equality clause, in the Bill of Rights seems to trump customary law. And you might argue that there should really be no problem, because if a customary law matter comes before a court of law, and it is found that for example a factual untenable position of a woman gives problems then it will be decided in terms of customary law. However, if you look at the situations of Africa you will find that cultural values are protected under the Constitution and as I say the continued recognition and application of customary law is protected, at the same time the equality clause under the Bill of Rights seems to take precedence, but then if problems arise the courts of law have to deal with the situation and decide
whether the recognition of customary law, that provision of customary law, whatever the problem is takes precedence over the equality clause; obviously you would say the equality clause takes precedence because it is part of the Bill of Rights. But then the sensitivity of the matter would probably not make it as easy as that. And one would expect therefore that constitutional tension might arise when the matter comes before a court of law. And ideally enabling legislation could clarify the situation or if a court of law has to deal with the problem one would expect that as I say the equality clause would take precedence since it is part of the Bill of Rights. But then I think it depends a lot on a balance of values, here, the preservation of culture and here the need to equalize the position of women and as I say I would expect the equality clause to take precedence as opposed to the preservation of culture, because to my mind if culture for its sustenance depends on the unequal treatment of some members of the cultural group who descend particularly from the prevailing culture, then that aspect of culture has
no place in our legal system.
Chaskalson J: Can I leave the question of customary law and ask you to address the question of language. I see you yourself speak seven languages. The constitutional provisions around language do you see any difficulty with their application and the sort of problems which could arise there?
Prof. Mokgoro: I think a lot of social problems can arise. The Constitution seems quite clear that the equality of languages is protected, but the implementation of that protection depends on whether it is practical, whether it is affordable. Now that seems quite clear, but if you look at that within the context of the history of languages in South Africa, the privileges that the two languages English and Afrikaans have enjoyed in the past, and the fact that if there has to be equalization of languages and we take it literally, then the loss of privilege might cause problems. However, I do not think it has to be interpreted literally that all languages have to be treated equally all the time. I think the practicability aspect and affordability aspect has to be taken seriously. This I think is meant just
to put a duty on the State to provide whenever it can for example translation if a citizen demands formal set-ups to be informed in terms of his or her own language. If you look at a court situation a trial for example, if the litigant insists on being tried in his or her own language well that should not be a problem, because we have always had it in our courts of law, then it should happen. If formal information has to be obtained in his or her own language then I think the State should try its best to comply and I do not think the idea is to all the time have 11 languages treated absolutely equally all the time. But I guess the situation would dictate what the particular situation is, what can be done within or under those circumstances, but I think the idea of treating languages equally is absolutely required. Especially because of, as I say looking at the history of languages in South Africa, the fact that some languages suffered more than others and language being part of culture making it also a very sensitive issue I think that needs to be respected.
Judge Corbett: Thank you. Yes Mr Bizos.
Adv. Bizos: Prof Mokgoro, other candidates for this
post have told us about the attitude of African women to polygamous marriages. What I want to ask you is, as a question of fact and in your empirical experience what proportion of African women in our country would you say are prepared to accept a polygamous practice applied to themselves?
Prof. Mokgoro: Can I say honest it will be very difficult for me to sit now and tell you that this proportion of women would be for or against it. I can only speak for women I have met in situations where I have interacted with them. For example women's organisations okay, and if I take those organisations as being representative of a number of women, I would say to you that invariably in forums, women's conferences and personally when I meet with women, rural women, I would venture to say a large proportion of them are against polygamous marriages. I have had for example the opportunity again to sit with rural women at a personal level over this past weekend at a funeral in the rural areas of the erstwhile Bophuthatswana and I have spoken about the issue amongst others and, I spoke to four women we had a conversation with
four women and all four of them told me about the disadvantages of polygamous marriages and why they think polygamous marriages should be done away with. So I am not able to say to you so many women, but in my experience more women have indicated and expressed ideas against polygamous marriages than women who have expressed ideas for. I have met women who have expressed a favour for polygamous marriages, but I have met more women who speak against it than, I have interacted with forums of women who speak against it than for it.
Adv. Bizos: How do the women that favour it, reason out their acceptance of the practice how do they, I do not want to use a pneumatic word, but it comes to mind how do they rationalize it?
Prof. Mokgoro: As far as I have observed a number of times they have expressed their favour for their own personal reasons, and one favourite reason is that there are so few men that if they do not have a polygamous marriage they might not be married. And I think those are just, as I even say to them selfish reasons. Okay?
Adv. Bizos: You spoke about the views of the women that you meet at conferences. I would
like you to assume that sooner or later circumstances may arise either in relation to maintenance or the custody of children whether a customary union constitutes adultery for the purposes of divorce, that one or other of these groups of women would bring the matter to the court. Now I do not want you to express an opinion which may compromise you if you are appointed to the Constitutional Court, but to ask you this. Do they, do they merely as a fact argue that the core values in the Constitution in relation to equality are not consistent with polygamous marriages. Is that a point of view?
Prof. Mokgoro: Well amongst others, there is the point of view that to permit a multiplicity of partners in a marriage for one gender and not for the other in our system, goes against the equality clause. And that is usually a rare motivation for the eradication of polygamous marriages. Usually among women it is a social reason, social situation where the disadvantages of polygamous marriages are expressed, but I do not rule out the possibility that women may want to make a point about the unconstitutionality of polygamous marriages; and I am sure they
can if properly motivated and as I say it depends on how it is motivated. A point can be made.
Adv. Bizos: Assume that such a suit is brought, in your view would it be a matter for the Constitutional Court or a matter for the Legislature to try and regulate the matter?
Prof. Mokgoro: You see once more I think we should not lose sight of the fact that there are certain aspects of our legal system, customary law particularly, which should in the first place really have been left to social tradition; but unfortunately customary law has been legislated upon it has been made part of our legal system. And as I have tried to show you earlier that customary law has really lagged far behind current social tradition, which ideally makes it desirable for women particularly that those aspects of customary law which impact disadvantageously on them need to be eradicated as soon as possible, and because of this dichotomy between social tradition and customary law, reform to those aspects, especially that aspect of customary law, would be rather radical. Radical and very sensitive, and if a Constitutional Court for example has to
deal with it, and if I take that the Constitutional Court will, if I assume that the Constitutional Court will enjoy utmost respect and authority in South African communities, it would probably be ideal that once and for all a Constitutional Court should deal with it, but unfortunately it would be so radical and so sensitive that I think we would rather leave it to the Legislature to deal with it. But if issues come before the court of law about this, one would at least expect the court to send a clear signal to hopefully a responsive Legislature that certain aspects or this aspect is rather unconstitutional and needs to be dealt with appropriately by the Legislature.
Adv. Bizos: I want to deal with another topic. I notice that you were on Lawyers for Human Rights Committee in the Western Transvaal in Mafikeng in 1990? Was it an easy function to perform in that environment Prof Mokgoro?
Prof. Mokgoro: Definitely not. Definitely not. It is a pity I have to say so myself, but it took a lot of courage. The situation was exceptionally oppressive and repressive. Here we were the whole of South Africa, 1990 post February 2 1990,
very excitedly the whole of South Africa was moving towards newly created ideas in South African terms towards democracy, and here was erstwhile Bophuthatswana taking us exactly decades back. At that time in Bophuthatswana it was like 1985, 1986/85 in so-called South Africa, and that was the first executive of a newly formed Lawyers for Human Rights. At the same time we had also put up the first structure of the Mafikeng Anti Repression Forum which we called MAREF. And I also served on that; and at the same time the ANC had also just been formed and ...(intervenes).
Adv. Bizos: Unbanned I think rather than formed.
Prof. Mokgoro: Actually it was really banned but it operated despite. Now all these three organisations worked hand in hand in that MAREF came up in response to the repression that was exercised on the ANC really, because a number of people were detained and tortured, lost their jobs, whether or not some of them, whether or not they were slightly associated with the ANC. A number of civil servants were dismissed from their jobs in terms of the so-called Section 3 of the Bophuthatswana Internal Security Act,
and we as MAREF were there all the time to put out this fire. So we took up the cases, referred them to Lawyers for Human Rights or to individual attorneys, and there was interaction between all these three organisations all the time, and not many people were prepared to do that. But some of the people who were involved, a number of academics at UniBop found it necessary to get involved and they suffered, continuously detained too, and it was not easy, definitely.
Adv. Bizos: Did you take an active role ...(intervenes).
Prof. Mokgoro: Oh yes.
Adv. Bizos: In trying to put things right, that were wrong?
Prof. Mokgoro: Definitely. I was part of MAREF, I was part of Lawyers for Human Rights and at that time too I was part of the ANC Women's League and I was working as head of Justice for Women, but my role as head of Justice for Women did not only, was not only confined to activity within the ANC. Actually to be honest the ANC they also worked as a human rights organisation, because they dealt with these problems, these problems of repression for everybody. People dared
not join the ANC in the first place so that everybody who had problems, particularly Section 3 problems, Section 3 of the Internal Security Act, would go to the ANC, people would actually say I will have to go and report to the ANC they will help you. Report to the ANC the ANC would refer them to MAREF and MAREF would refer them to Lawyers for Human Rights or raise funds for their legal defence. We tried very hard to get them reinstated, but it was like knocking against a brick wall, because unfortunately the courts would decide against these litigants, because they always decided that despite the Bill of Rights that Bophuthatswana had, the courts always decided that the President had the authority to dismiss ...(intervenes).
Adv. Bizos: My last question to you Prof Mokgoro is that if I understand your curriculum vitae correctly your actual practical experience in litigation or acting as a lawyer is limited. Would you agree with that?
Prof. Mokgoro: Very limited. Very limited, yes.
Adv. Bizos: Would you consider ...(intervenes).
Prof. Mokgoro: Actually, sorry let me just go on, I never practised as a lawyer. I worked
as a prosecutor in the magistrate's court.
Adv. Bizos: Yes.
Prof. Mokgoro: That is the practical experience I have of litigation ...(intervenes).
Adv. Bizos: For the rest is has been academic and now for the Human Resources. Would you consider that a serious disadvantage on your qualification to be a member of the Constitutional Court?
Prof. Mokgoro: Not a serious disadvantage. I worked in the magistrate's court as a prosecutor and as a maintenance officer with maintenance cases, and for the rest of my legal career I have been an academic doing legal research, even teaching law, and I do not think that should pose a serious defect in the sense that my legal analysis skills as an academic, as a researcher, would I think stand me in good stead. The practical experience would also be advantageous, but I think the lack of extensive practical experience should not, because if we look at the functions of the Constitutional Court it will deal not only with the analysis of fact, it also deals with analysis of law and although fact and law cannot really be separated, the intellectual ability to analyse is
also quite essential.
Adv. Bizos: Thank you Chief Justice, thank you Prof Mokgoro.
Judge Corbett: Prof Mureinik?
Prof. Mureinik: Prof Mokgoro I have heard on the academic grapevine that at an occasion in Pretoria a week or two ago you gave a speech, I am sure I have got the gist of it wrong, but it sounded very interesting, I understand something to do with the duties of an individual in the Constitution. The version that I heard had you saying something like the Constitution has perhaps overemphasized the rights of the individual without looking at the duties of the individual. Can you explain to us what your views are on that question, what the thesis was that you were putting forward?
Prof. Mokgoro: I think the question came up with somebody mentioning the fact that there is a lack in South African terms of a human right culture, popularly amongst people generally, and there is a need therefore to teach the general public about the Constitution and about human rights, and this has to be the duty firstly of the legal profession to do and I raised the point that, because the issue was the African Charter of Human
Rights and people's rights, and I raised the point that while we are doing that, it is also absolutely necessary not only to emphasize in educating the general public about human rights, not only to emphasize the rights aspect of human rights, but also to emphasize the duty aspect of human rights and I do an analogy with the Charter, African Charter for Human Rights and people's rights and that charter is quite refreshing in the sense that not only does it emphasize rights, it also makes a point about people having duties in order to realise their rights, duties against the rest of the community from which they expect their rights to be respected, and I think we need to do that more. The Constitution and then I made a point that this is the case especially with, in private situations. Although we cannot ...(inaudible) that people also have a duty against the State for the realization and implementation of their right, and people need to know more than rights have concomitant duties. We cannot have all the rights and other people have all the duties. We need to understand and make it clear to people that rights go
hand in hand with duties. I also made a point that that is easier, that would be difficult with State-citizen relationship, because in State-citizen relationship when you look at rights it is usually expressed in a negative way in a sense that the State is precluded from trampling on rights, but that is easier when we deal with individual private relationship in a family situation for example in an employment situation. It is important for people to know that if I have to enjoy rights I also have duties towards those who have to respect my rights, and I think this is not sufficiently done in popular education.
Prof. Mureinik: Are you saying that the Constitution should have included duties in addition to the rights, should have been included in the Constitution itself?
Prof. Mokgoro: Well, I think I also made the point that the Constitution perhaps in a way does, if you look at the limitation clause. Indirectly it does, but the ordinary person in the street does not understand that. It is perhaps okay for us academics and for us lawyers and for those people who understand that limitation to rise implies a duty, but
it would have been more expedient for ordinary people to know and see that. And I think I made the point quite clear that it is difficult to do that, especially in the sense that this Constitution primarily directly focuses on the relationship between State and citizen and not horizontally as between private citizens.
Prof. Mureinik: If you were to improve this Constitution with a view to, if you were to improve it with a view to making it approximate the African Charter to a greater extent, what specific duties would you have included and would you include in the Constitution?
Prof. Mokgoro: I think I would, I have not really thought about it. I would probably, on second thoughts I think it is also done with the socio-economic rights of children, in a way the two duties are mentioned I would look at it in the employment situation and I think whenever rights are expressed instead of having a separate clause at the end of the Bill of Rights for example which obscurely indicates what duties are, I would probably try to have the specific duties which express limitations to a right, accompany the right all the time
and make it quite clear, make the connection quite clear between the duty and the right. Wherever rights are expressed in the Constitution. Thatwould probably be too elaborate and laborious, but maybe that is an idea.
Prof. Mureinik: You say that a limitation to a right somehow corresponds to a duty. Could you just explain that, I did not follow it.
Prof. Mokgoro: If you look at the right to strike let us say just as an example, the right to strike or let us say the right to form a union or belong to a union and you look at the limitation clause which says this might be limited by, maybe limited by a law, and amongst others you may even want to say while you enjoy a right to form a union or belong to a union, there is an equal right on others to belong to a union and therefore you have a duty not to preclude others from belonging to a union. Just for argument sake. As I say, it may be laborious and rather elongated but that is the idea that I am trying to bring across.
Judge Corbett: Sorry, yes?
Senator Radue: Thank you Judge. Professor, in January of this year you were part of a panel of experts that went across to Germany to
the study the German Constitutional Court. Could you elaborate a little bit on that experience and was it valuable? Have you learnt something?
Prof. Mokgoro: I think it was very valuable. It was fascinating in the sense that I looked at the role that the Constitutional Court in the German judicial system plays, and one thing that fascinated me as particularly a jurisprudence academic from a South African background, where a point is usually made that a court of law has to remove itself as far as possible from the political situation in a particular jurisdiction, and I discovered that the German Constitutional Court is in fact a political organ. And the Germans were quite comfortable with that. They appreciated, they are excited about it and the Constitutional Court in the German jurisdiction actually plays that role, it is part and parcel of a political process, and it was quite fascinating to discover that in the German situation the Constitutional Court is actually appointed so to say politically, and despite that it manages to be independent. It was quite fascinating.
Senator Radue: Do you ...(intervenes).
Prof. Mokgoro: I have always, sorry, I have always made a point that there is no way that the legal system itself generally can be divorced from the politics of its jurisdiction, and it was quite refreshing to get a confirmation of that perspective.
Senator Radue: Can I just follow that up then and just ask you whether you are in fact a member of a political party and if so, what party.
Prof. Mokgoro: Oh yes.
Senator Radue: And would you terminate your membership if you were to be nominated or appointed to the Constitutional Court?
Prof. Mokgoro: Absolutely. I am a member of the ANC. As you see on my CV I was a member of the Regional Executive Council, the Regional Executive of the Northern Cape, ANC Women's League in the Northern Cape and I was head Justice for Women, and I have just described my involvement with the ANC, and most definitely if, to answer your question, if I have to be appointed to the Constitutional Court I would resign as a member of the ANC, but to my mind that will only be an open expression of my commitment to independence. A lot will also have to
be relied on my actual independence, sense of justice and commitment to human rights, to the democracy in this country, and as I say that will only be an open expression. We will also have to rely on other aspects of being a Judge of the Constitutional Court.
