An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
It is with immense relief that I read the news that the ANC has now retracted its earlier unwise and intemperate attack on Deputy Chief Justice Dikgang Moseneke. “Having listened to Justice Moseneke’s account of his speech and the context of his remarks, the ANC accepts that no ill was intended,” an ANC statement said.
I first met Deputy Chief Justice Dikgang Moseneke in 1986. I was a newly politicized student experiencing the horror of a first-time holiday job at a conservative law firm in Pretoria and when I heard that an ex Robben Island political prisoner was a colleague of my sisters at the Pretoria Bar, I asked her if she could not arrange a meeting.
We had coffee in his chambers, and callous, wet-behind-the-ears white student that I was, I asked the now Deputy Chief Justice about his time on Robben Island. Instead, he told me about his deep admiration for Steve Biko – a man whose tragic story I had only recently became aware of and whose writings I did not know because it was not much discussed among the white lefties who aligned themselves with the United Democratic Front (UDF).
I was a bit overawed during the short chat with a real life hero of the struggle who had met Nelson Mandela on Robben Island and when Advocate Moseneke asked me about my future plans I mumbled that I was thinking of becoming a journalist because the lawyers office did not seem the right place for me.
“No, he said, “no, that might be a mistake. We need good human rights lawyers in this country and it would be worth while to do something good with your law degree that would help the people of South Africa.”
I was struck by a kind of inner peace and dignity that seemed to exude from Advocate Moseneke, as if all the horrors of apartheid and the petty everyday indignities suffered then by black South Africans did not touch him. He seemed – even then – to act like a man who knew he possessed an inherent human dignity that no one could take away from him.
Although I only met the Deputy Chief Justice once or twice after our encounter in his office, and then only in the most cursory of ways, I have always been impressed by this deeply serious man and his commitment to fairness and justice which shines through in his always sharply reasoned judgments. Although I do not always agree with the outcome or the reasoning of his Constitutional Court judgments, I have immense respect for this towering legal mind.
It was therefore with shock and dismay that I read of the attack on Deputy Chief Justice Moseneke by the National Working Committee (NWC) of the ANC for comments he is reported to have made at his 60th birthday party last week. According to The Times:
Moseneke reportedly told guests at his birthday party in KwaZulu- Natal that he had dedicated his life to working for an egalitarian society. “I chose this job very carefully,” he was quoted as saying. “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 [to the Polokwane conference] want; it is about what is good for our people.”
The ANC NWC responded to these reported remarks by saying that it took a dim view of opposition parties trying to belittle the delegates to the ANC 52nd National Conference and affirmed the need for transformation of the legal system. Then it continued:
In this regard, the NWC was shocked that the chorus from opposition parties was joined by Deputy Chief Justice Dikgang Moseneke on the occasion of his 60th birthday. His reported comment shows disdain for the delegates to the ANC National Conference, and highlights the difficulty that many within the judiciary appear to have in shedding their historical leanings and political orientation.
For anyone who believes in our constitutional democracy (and the need for political parties like the ANC to be subject to the discipline of that constitution) the statement of the NWC was deeply troubling and irresponsible.
The statement of the NWC could be read in three different ways. First, the NWC statement could suggest that – like many other “untransformed” judges in South Africa – Deputy Chief Justice Moseneke still had an apartheid style mentality and that he was therefore part of the problem of the untransformed apartheid judiciary. This is absurd – as anyone with even a vague knowledge of the jurisprudence produced by the Deputy Chief Justice would attest. His judgment in Minister of Finance v Van Heerden in which he set a stringent test for the overturning of affirmative action measures, is a case in point.
Alternatively, the statement could suggest that The Deputy Chief Justice still had a bit too much of that Steve Biko stuff in his head – after all, at some point he was the deputy leader of the Pan Africanist Congress (PAC) and an exponent of black consciousness. The NWC could have meant that he had thus not shed his “”historical leanings” and “political orientation” and had failed to take on the orientation of the ANC – which is the ultimate aim of transformation.
If this is a correct reading, it would mean that there are some ANC NWC members who have an extremely narrow view of transformation and see the state and the ANC as more or less one and the same thing. according to this view, transformation requires all institutions to come into line with the ANC’s vision of our society and negates the constitutional principle that different visions of how to achieve a society based on human dignity, equality and freedom must compete in our democracy.
Third, the statement could have reflected the view of some in the NWC that in order to protect Mr Zuma from conviction, it would be necessary to fundamentally undermine the judiciary to such a degree that if Mr Zuma is convicted, his conviction would have no legitimacy in the eyes of his supporters. This would be part of the so called “Stalingrad option” for Mr Zuma’s defense in which any action – no matter how destructive or dangerous – would be justified to ensure that he is not sent to jail. I suppose it is unnecessary for me to comment further on what I think of this view.
In any event, in the end, after a meeting between the Chief Justice, Deputy Chief Justice and the Deputy President of the ANC, the ANC confirmed “its confidence in the integrity of the Deputy Chief Justice, and […] its confidence in the courts to uphold the law and safeguard the rights of all citizens”. This means that people in the top echelons of the ANC, like Deputy President Kgalema Motlanthe, may not share the views of the more hot-headed members of the NWC. Let us hope in future that they take the leadership to ensure that such absurd and destructive statements are not made again.BACK TO TOP