Moseneke: An intrepid justice for the people

Radical Realist Moseneke bows out with a message: the constitution is our weapon, writes Carlos Amato

There is no strict separation of powers between Deputy Chief Justice Dikgang Moseneke's prodigious mind and his prodigious heart.

On Friday, after saying his final words to the Constitutional Court - "God bless Africa, and God bless her people" - Moseneke wept. A sudden, choking sob, quickly controlled.

It was oddly majestic that this great orator, who has spent his career devoting language and reason to the service of justice, should conclude it with the sound of wordless feeling.

But Moseneke has always specialised in the improbable.

Arrested on a charge of terrorism at just 15 and jailed on Robben Island in 1963, Moseneke spent the 10-year term finishing his schooling and obtained two degrees.

What would he say now to that intrepid Atteridgeville kid, having become the foremost interpreter of a constitution he co-designed?

"It was a bit risky, lad," he told his young self on Friday.

"You took the chance of your life. The apartheid regime could have crushed your little skull. And you survived. But hell knows, it was close to fatal.

"And that was true also when I was an attorney, an advocate and an activist. Close shaves. An uncomfortable balance between being the abiding officer of the law and an activist undermining the same system."

block_quotes_start And could that boy have imagined what might have become of him, and of this country? block_quotes_end

If you’re young, you have to be militant. That has to be put to positive use

"Frankly, not," said Moseneke. "At the beginning of the sentence, I thought: 'This is it.' Look, 10 years is 10 years. It's long. In the first week of the sentence it looks truly dark. No light, no tunnel.

"As the days rolled by, one gathered oneself and started grafting, and took refuge in grafting. It can be done. And then the tale started unfolding."

The tale is long and crammed with feats of resilient vision.

From the moment he left the island at 25, he set about breaking into the twisted citadel of apartheid law, then helping to raze it and build something beautiful in its place.

All will be revealed in his memoirs, due to be published in September.

And it's a tale that puts Moseneke in a unique position, as a revolutionary jurist, to address the rage of militant born-frees who challenge the constitution's transformative legitimacy.

Moseneke sees his legacy as the reaffirmation of the radicalism of that document. The three major judgments he wrote on land rights cases show that the inadequate return of land to black people cannot be blamed on South Africa's supreme law, which provides for expropriation with compensation.

Political will and bureaucratic muscle are the missing links. And, for Moseneke, it's essential that young radicals respect, as well as exploit, the immense progressive power of the rule of law and procedural change.

"If you're young, you have to be militant," he said.

"The debate must be how that militancy gets canalised. That energy has to be put to positive use ... So you can't destroy things and ravage everything, and we have to find some basic rules. And yet demand accountability and fairness, and a society that equalises in a fair way. That's what I demanded when I was young.

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"I remember having debates with young people about whether Nelson Mandela sold out. And I said: 'No, he did not.' The boulders that he had to move, he moved. But there was no way he could stage a socioeconomic revolution in tandem with a negotiated settlement for transition to democracy. That is agenda two.

"We are in a project to move away from business as usual, because there's so much here to change. In rougher language, as Gandhi said, unless you train people and put them in good spaces, they're going to slit your throats. It's only a matter of time. It sounds horrible, but it's true," said Moseneke.

"The ruling elite will be confronted by angry citizens, and we are starting to see some features of that. So we have to go back and reaffirm the ideal, the goal. We shouldn't let our guards down. Unfortunately, not everything is helping in that direction currently."

Interpret that last remark as you will.

But during Moseneke's farewell ceremony on Friday, President Jacob Zuma was the elephant outside the room.

The president's name was never mentioned, but several speakers, including Chief Justice Mogoeng Mogoeng, spoke frankly about the thwarting of Moseneke in 2011, when he was the natural appointment to replace Pius Langa as chief justice, and the grace with which Moseneke accepted the setback.

It is thought that Zuma blocked Moseneke to punish a remark the deputy chief justice made at his 60th birthday party in 2007.

"I chose this job very carefully. I have another 10 to 12 years on the bench and I want to use my energy to help create an equal society.

"It's not what the ANC wants or what the delegates want - it is about what is good for our people," he said at the time.

At a farewell dinner hosted by Mogoeng in the deputy chief justice's honour, Moseneke repeated those sentiments.

However, his tears on Friday were about gratitude and pride, not sadness.

"It's a rare satisfaction," he said. "I wouldn't want to do it again. I gave it my best shot.

"I don't think I can improve on this," he said.

sub_head_start  Humour, hard work and equality are in his brief sub_head_end

"He has a very soft spot for females. This is obviously informed by the fact that his mother was a huge inspiration in his life. At one point he had only one female clerk and he looked at us all and said: 'Is this my chamber? How did it happen that I have three males and one female?' He doesn't give hugs to guys - only to females. It's good, because it shows he's serious about transforming this profession, which has been dominated by males." - David Modiba

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"I wish people knew the things my judge says in chambers. On the bench he's all business. He might crack a joke here and there, but the really nice jokes are in chambers. He's hilarious. It's a comfortable and enabling environment." - Molebogeng Kekana

"He has proved you don't have to be in politics and address rallies to be a person of the people. Even in a courtroom, with only judges and advocates present, you're still addressing the nation. The nation still listens to you." - David Modiba

"He works extremely hard. We can't not keep up the pace, because we see the man leading by example. He starts early, and he keeps us working late." - Anthea Christoffels

"He has always had a diverse group of clerks, from all races, from marginalised universities as well as top universities. That's his modus operandi. He lives diversity and transformation." - Hilton Packies

"He's a complete South African. He can speak all 11 languages, with perfect accents. Some other judges, when they speak another language, can sound a bit coconuttish. But I was told he once presided in the Pretoria High Court in perfect Afrikaans." - David Modiba

"He carries with him this presence of wisdom and knowledge and insight. And he empowers youngsters to take the baton and build on what his generation have built." - Michelle Toxopeus