Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
18 August 2011

Transcript of JSC interview with Justice Mogoeng 2009

Transcript of interview with – JUDGE PRESIDENT MTR MOGOENG 21 September 2009

Q: Good afternoon, Judge President.

A: Good afternoon, Chief Justice and Commissioners.

Q: Welcome to this sitting of the Judicial Service Commission.

A: Thank you.

Q: We thank you for coming. We are discussing positions in the Constitutional Court, four of them. And your name has been put forward. You have consented to that?

A: Yes.

Q: You are the Judge President of the North West High Court?

A: That is correct, Chief Justice.

Q: When were you appointed, Judge President?

A: In 2002, I think October, November 2002.

Q: And before that, of course, you were a judge in that Division?

A: I was a judge in that division and in the Labour Appeal Court.

Q: When were you appointed a judge in that Division?

A: June 1997.

Q: Now, Judge President, could you inform the Commissioners a little about your legal career, up to the point when you were appointed as a judge?

A: Yes. With your permission, Chief Justice, maybe before I do, let me apologise that I was sitting in when the interview of Judge Maya started. I didn’t know that I was supposed to but just before Patricia De Lille, MP, put a question to her, I was advised that I shouldn’t be sitting in. So it wasn’t deliberate. But coming to the question that you have asked me, I started as an interpreter during the university vacations in (Mogoase?). It wasn’t for too long, it was for about three months, I think. And then when I completed LLB, I was appointed as a prosecutor by the then Bophuthatswana Department of Justice because they had partially funded my studies at the university. So I was a High Court prosecutor from 1986, I think, until February 1990 when I went to do pupillage at the Johannesburg Bar. After completing pupillage, I practised for a while in Johannesburg and decided to go back home to practice in Mafikeng. And I was practising there as an advocate until I was appointed to the bench in 1997. But I must also indicate that while I was a prosecutor, I was also a part-time senior lecturer at the then University of Bophuthatswana. That’s about it, really, except for joining some legal bodies and so on.

Q: What did you lecture in?

A: Criminal Law and Procedure.

Q: Now of course we are discussing the Constitutional Court.

A: Yes.

Q: Have you ever acted in the Constitutional Court?

A: Never before.

Q: You have never been invited?

A: I have never been invited.

Q: What is your motivation? Why do you want to go to the Constitutional Court?

A: You know, sometime back, I can’t remember the year, I was approached by Justice Ian Fulham and Freds Brandt of the SCA to on a regular basis make a presentation to the newly appointed judges and orientate them on constitutional law. And I was also asked to do the same exercise to the aspirant judges. So that sort of generated interest in me, you know, to, as active as I can be in the matters relating to constitutional law. But more importantly, Chief Justice, this is what motivated me, I’ll tell you now. I have been a judge in a corner of a corner, done everything possible to share what I know with my colleagues, the magistracy, the prosecutors, legal aid board people by way of training and capacity building. I have for instance, I have for instance as part of this exercise, invited Justice Sandile Ngobo and Justice Freds Brandt to come and train magistrate. Maybe just to go a little bit ahead of myself, I’m trying to demonstrate that I have made every kind of contribution that I believe a person in my position can make in my province. And that the time has come for me to now make a much more meaningful contribution on a larger scale. And I believe the Constitutional Court affords me that platform. What I did when I invited Justice Ngobo and Justice Freds Brandt was to say in the course of considering the reviews and the appeals, we have picked up serious problems when it comes to, among other things, judgment writing. Can’t you help us with your skill to come and train our magistrates on judgment writing? Can’t you come and help us with your skill to come and expose our magistrates to the role of a judicial officer in a constitutional democracy? Can’t you, Justice Freds Brandt, come and expose our magistrates to how they can confidently run a civil and a criminal trial? And they did that. We have, through my leadership of the Provincial (Case Law?) Management Forum, also been involved in joint training with magistrates in sensitivity and leadership training. We have during our annual conferences as well brought together judges, magistrates, prosecutors, legal aid board official, even people from the Social Development Department and Traditional Leaders. We came together and said what is it that our justice system is not functioning as effectively as it ought to. We brought our heads together, people from across the country, even at times like last year, pleaded with us to invite them. They came and that was beneficial to everybody. There has been tremendous improvement in the performance of our people. So finally I have also, during the last two weeks of January been going around South Africa with a judge from the United States of America because I had identified a serious problem. Our courts are not functioning as effectively as they should particularly at a magistrate’s court level. There is a problem with case flow management. The public is complaining about the many postponements. The public is complaining about the many delays before a judgment is passed. So I said, I have been exposed to the American system for some ten days. I have seen that it works and as judicial case management, what is it that we can do to improve the system rather than join those who are complaining? So having gone through this and all other things that I may not have enough time to share with you. I believe that once I’m appointed to the Constitutional Court, that will give me a much better platform to pour out this passion that I have of improving the system for the benefit of the taxpayers who pay us, even better.

Q: Commissioners? Minister?


Q: Thanks, Chief Justice. Judge President, you are telling us that Mafikeng is too small for you now.

A: I am saying that, I am saying that I have done what I believe I could do. And I have sensed about three, four years back, Minister, that I have probably overstayed my welcome there. I found myself, without aspiring to any position, training my colleagues in case something happens in the Case Law Management Forum and even in my own position. So it’s not small in a negative sense, it’s small in the sense that I believe that some people could possibly benefit from the little that I have been able to learn over the years as a judge.

Q: So this right that you want exercise now of administrative action that you want to take, under what conditions can it be reviewable?

A: Which administrative action, Minister?

Q: The ones that you want to take now of going to the Constitutional Court, if you contrast it with Section 33 of the Constitution? A: Administrative action? I’m sorry, I don’t understand the question, Minister.

Q: I’m actually asking, under what conditions, actions in terms of Section 33 reviewable?

A: Well, I must confess that I have not recently considered that aspect. But the bottom line is this, whenever an administrative decision has been taken, and I’m speaking broadly, and the person affected by the administrative action negatively is aggrieved, and all existing, internal remedies have been exhausted. Then it will be open to that person to take the appropriate administrative action.

Q: Can I revive you memory with the case you decided in Shoprite Checkers v Rainbow and Others?

A: I must confess, Minister, I haven’t read that judgment recently, yes. But if there is a specific thing, I would be able to tackle it.

Q: Okay.

QUESTIONS POSED BY MS DE LILLE Q: Thank you, Chief Justice. I just want to get some more clarity under your – my most significant contributions to the law and the pursue of justice. There’s the case of BMW Financial Services v MB Malagoetse. You make a statement there, … Judge that the case deals with what needs to be done by credit providers to give substance to those provisions of the National Credit Act. I would like, as a very short briefing here, if you can give us some more detail there. Then in the comment by the National Forum for Advocates, I don’t know whether they have spoken to you before they made this comment. They say that: “Although he is clearly an enthusiastic, popular and effective judge, he has not done any legal publications and does not state what the subject of his LLM was.” Were you given an opportunity to respond to these comments? Thank you.

A: No I was not, to start with the last question, I wasn’t given any opportunity to respond to the questions, to the comments. But in all fairness to them, they must have done everything possible to ensure that their comments reach me in good time. Going to the first question, I beg your pardon. When this case came before me, it reminded me of the many instances in which credit providers seem to be just too quick to repossess houses, to repossess vehicles and whatever property people might have bought on credit. And this was one of those cases. And I said, my goodness, this person has missed one instalment and have subsequently been paying regularly. And the notice that had previously been sent to him to say that if you’re not careful, if you don’t pay, we’re going to repossess your vehicle, was not even compliant with the provisions of the Act. But more importantly, Honourable Commissioner, I was worried that although the Act makes provision for things like counselling, instead of the credit providers going to the people and saying, to their creditors and saying, by the way there is provision for counselling. If you want to know where you can contact the counsellors, these are the numbers of the counsellors. Which of course is not an easy thing because I learnt from television subsequently that the counsellors are based in Cape Town. And from the look of things there weren’t many counsellors around the country. I realised that some credit providers simply went through the motion in their attempt to act in terms of the Act by informing you what your rights are, what opportunities you have within the Act that you can pursue in order to avoid the repossession of your property. So something had to be done to waken them out of their sleep that the spirit of the Act must be embraced so that when you notify your debtors about a possible repossession of their property, it is a genuine act. You are not just going through the motions, particularly during the difficult times, the economic times that we’re finding ourselves in. So essentially that was it.

Q: Thank you, Chief Justice. My attention has been drawn, may I just also declare that I’ve known you from the time that you started your practice in Johannesburg. My attention has been drawn to paragraph 20 of your questionnaire in which you disclose that you own 50 head of cattle, 55, far from it for me to deprive you of the other five, 55 head of cattle. If you were to be appointed to that position as a result of my recommendation, what will happen to these cattle?

A: You know, you remind me of what Honourable Van Der Merwe asked me about cattle the last time I was here. He said that is the surest and quickest way of losing your money. But if I were to be appointed, this is more of a hobby than anything else. So I would probably sell them or give them to family members, it’s not a big deal, really. It’s a refreshing hobby.

QUESTIONS POSED BY JUSTICE NGOEPE Q: I just want to go back to the issue which was asked by the Minister about whether you think you have outgrown, you feel you have outgrown the place where you are. Let us properly contextualise it because it’s a very difficult issue. That’s one of the reasons why … (interjection)

A: I missed the first words, though.

Q: I’m saying that I want to contextualise the issue raised by the Minister about when he talked about you having outgrown the place. And I’m trying to contextualise it properly because it is a problem with something which nearly, although I was very reluctant, nearly made me apply to the Constitutional Court. Because if I am to stay, remain where I am now as Judge President, where else do you go? And if I remain, I’ve got to remain until I retire, by the time I retire I would have been Judge President for 16 years. And on my calculation if you had to remain where you are until you’re qualified to retire at the earliest moment, you would have been Judge President of that court for 26 years. Not to talk of being a judge of that court but just being Judge President of that court before you qualify to retire because you are appointed a bit early, you would have been Judge President for 26 years. Now would you say that that is good for any court, for somebody to remain in that one position for 26 years, you know, to become fossilised into that position? Is it good for the institution itself, in your view?

A: Generally, no because for as long as you are the head, broadly, it is your philosophy about that court that is going to be followed. But also in my case it’s even more special and unique. I have heard the Minister, either in Parliament or on television, our Minister, complain that there is not a single woman Judge President in the country. Now if I were to be appointed to the Constitutional Court, the most senior woman in my Division is Monica (Mashangulweyo?). That woman was practising law when I was doing, I forgot the grades now, we used to call it form 7 during those days. 1977, she was already practising law. She has been a leader in the regional court before I even – long before I became a judge. She was a lecturer, a senior lecturer in the university. She has it all. Now if we want to transform the judiciary and avoid the practice of the parliamentarians during the judicial procession when we enter only as heads of courts saying boys choir or male choir. This, my elevation presents you with a golden opportunity not only to demonstrate commitment to transformation but to also give, inject new blood in the running of that court and the judiciary as a whole. I thank you for the question, my brother. In fact, my colleagues already call her, Judge President, long before I even applied.

QUESTIONS POSED BY MR VAN DER MERWE Q: Thank you, Chief Justice, no, I’ll leave the cattle this time. What language is spoken there? Is it Setswana?

A: Setswana.

Q: Now does it happen that some of the trials are done exclusively in Setswana?

A: Well, thank you for the question. You know, it was done recently and in principle I support it. But now I think the timing couldn’t be more wrong and I’ll tell you why. We as courts are functioning under extremely tight financial constraints. It is difficult already to have a proper interpreter rather from Setswana to English. Now you’re complicating the situation even more. When you hold the proceedings in Setswana as it happened recently in Zeerust, to have the record translated from Setswana to English, where are you going to get the translators from, competent translators? And it must not just be a person who knows English, it must be the kind of person who is familiar with the language of the court and be able to interpret with that spirit in his belly or in her belly. So we’re going to incur extreme costs by, as I believe, running ahead of ourselves because the resources are not enough. Already the Ministry of Justice has asked the regions, in fact has already cut the budget of the regions. We don’t have sufficient resources. I think it is imposing yet another burden on the burdens that we are not able to cope with already by introducing that system. Maybe sometime in the future, I don’t know. But I think it’s premature.

Q: Yes, just finally. Judge, if you’re worried about getting out of your area, I suggest you become a politician because many people will vote for you when you speak like you do.

Q: Mr Moerane?

QUESTIONS POSED BY ADV MOERANE Q: I differ with my colleague, Mr Van Der Merwe. I think you should join the Ministry. I think you’ll make a very good preacher, if you are not already a lay preacher.

A: I am.

Q: It definitely shows. Judge Mogoeng, what do you regard as the most pressing challenges to the judiciary today?

A: You know, transformation, and I’m going to elaborate, if you permit. Race and gender, I don’t think you need to be told anymore about those aspects or I will move beyond that. We need to transform our courts in the sense of ensuring access to justice, of ensuring access to the courts. The President has spoken about this during the opening of Parliament, the State of the Nation Address. And even when he was addressing the judges, the Chief Justice has touched on it and I think the Minister. Let me explain myself. When we had our conference last year, the year before last on Restorative Justices and non-Custodial Sentences, some of the people we invited were Traditional Leaders, the Executive of the House of Traditional Leaders and their members. So that they could tell us one, where we are going wrong. And, two, what is it that can be done to transform the traditional court so that instead of heaping up everything on the magistrates courts. And instead of our people in an economic recession having to take buses, leave their commitments, abandon everything and travel long distances to get to courts, you simply revamp the traditional courts that have the potential to do an excellent job. You revamp them, you resource them properly so that people simply wake up from their homes, walk to the courtroom and have their matters disposed of. So it is important to transform the traditional courts. It’s one of the things that I’m very passionate about because the traditional courts, the Traditional Leaders and I have been interacting regularly. (Tape 26a) Two, transform your small claims courts. They can’t be held after hours. What if I live in a distant village and I want my matter to be heard. Why should I come under cover of darkness and be robbed by those who have no respect for the law? I think you need to have fulltime people there for the sake of access to justice, access to the courts. Let those people be properly trained not just be quickly orientated so that they can dispense proper justice. Let the courts be properly staffed not by somebody who is here today and tomorrow he is not there. Let there be a deepening of the understanding of what an ideal community court is so that when we establish community courts we are not just experimenting. We’re taking it beyond the Hatfield Court, we’re taking it beyond the Cape Town Court, we take it beyond the (Fezeke?) and the other court Mitchell’s Plain Court. Let’s deepen the understanding, let’s go out there and train people, expose people properly to what this court is all about so that as we spread them across the country, in order that justice is accessible to the people, we know what we are doing we are not experimenting, that is the one point. I hope you don’t mind I thought about these things and jotted some points, I hope you don’t mind it I look at my points here.

Q: No, not at all.

A: I think in line with that you could also find a way as the Judiciary of strengthening our ties with the university. We have done that in my province, I have regular meetings with the dean and the faculty of law. Whenever we have meetings or conferences of interest we make it a point that they come and they present. And we also bring the students in numbers, so that by the time those of them who are interested in practice join practice have a fair understanding of what practice is. And because we are close to the university we invite them to come as regularly as possible so that they have a touch of practice. Law clinics we have realised as cases that are handled by the law clinic come to our courts that there is a disaster there, people don’t understand what they are doing. So we’ve not only seconded a judge to the Board of the Faculty but we have also undertaken to make sure that we speak to those who are in a position to assist, to help them train and properly orientate those of their people who are often willing to assist the people who have nowhere else to go but to approach the law clinic for assistance. The other point that is crucial judicial case management, I’ve been involved in case flow management for a long time, there are many postponements. The preparation that ought to precede the hearing of the matter is virtually non existent. If you look at the pre-trial conference minutes people are just going through the motions. So I believe that from the office of the Chief Justice, the head of courts. case flow management must be so embraced that it is not going to be localised to a district or a province. The Chief Justice, the Director General, the Commissioners of police and corrections and even the Director General of Social Development and Health because we’ve got problems with probation officer’s and social workers, they must on a regular basis together with the Minister meet and say our justice system is not where it is supposed to be. What is it that we can inform the provinces and the other people within the provinces to do to make sure that there is proper preparation before matters are heard, there is a strict postponement policy, there is a strict monitoring of the cases from the time a notice of intention to defend is filed. From the time you know that your accused person has appeared before court a judicial officer ought to take over. And either telephonically or by calling people to his or her chambers say, people we can’t do business like before now, it has not worked. The time has come for the third arm of government to demonstrate that it is part of government and lead. We can’t leave it to the practitioners to dictate the pace of the finalisation of matters, what are we leaders for? I believe judicial case management which as I said I was going around with Judge Davis from America holding workshops about across the country. Which, I am humbled to say, I was asked by my colleague to identify somebody to present at the National Lead Judges Conference, Judge David Campbell is the answer. And unless it comes from the top we will keep on being enthusiastic today, flat tomorrow, the public complaining in newspapers and in other media and nothing of significance happening. So please, if I were to beg of the people here anything, commit unreservedly to judicial case management. And I may add something else, and I’ve said this I may bore some people, I think the Judiciary urgently needs mechanisms and structures, internal mechanisms and structures through which to address our internal problems. We have been caught napping for far too long, problems have arisen which ought to have been dealt with by the leadership of the Judiciary of which I am part. But because we don’t have structures and mechanisms in place, and I’ve been preaching this gospel for some time, to make sure that when a colleague has a complaint against another we do not allow it to find it’s way to the media. We are family this is what I’ve been telling people in our province, we are family. I don’t know of any responsible and decent family that runs to the outside world the minute a problem arises at home. We’ve got to have avenues, internal avenues to resort to when judge so and so or magistrate so and so, by the way I want to talk about single Judiciary as well, when magistrate so and so is alleged to have done something wrong, we’ve got to put our heads together and say what can we do? And I believe where there is a will there is a way, I was telling my colleagues on Saturday I think this needs urgent attention and I am going to pray more for it to happen. Another aspect as I just hinted is a single Judiciary, at the moment as you would know, Adv Moerane, the Chief Justice calls us to a meeting and we go there out of courtesy. I’m not aware of any law or any rule that says that we must obey him, nothing at all. I’m not suggesting that the powers of the heads of courts should be removed from them, no. But I believe that as part of creating a single Judiciary you’ve got to clothe the Chief Justice legally with the authority over all judicial officers so that he becomes our judicial father. I believe that you’ve got to clothe the Judges Presidents with the authority over the regional court president and other magistrates there, over the cluster head and other magistrates that fall under his or her jurisdiction. Why? We are faced with a situation now where regional court magistrates and district court magistrates can come to me and complain about the wrongs that are being done by their seniors and I can do nothing but sympathise.

Q: Summarise now.

A: Okay, I’m sorry. In a nutshell the Judiciary is the only arm of government that is not properly co-ordinated from national to province and even within the province. And I think the establishment of a single Judiciary without calling magistrates, judges, or do anything cosmetic is critical at this stage.

Q: Amen.

Q: You mentioned the National Judges Conference, did you attend that?

A: I beg your pardon?

Q: Did you attend the last National Judges Conference?

A: I was, in fact (Sandile Ncgobo?) and I are mandated to make sure that the resolutions passed there are implemented.

Q: What is the purpose of a judges, National Judges Conference?

A: I believe fundamentally the purpose of that conference is to do a self introspection. To say as the Chief Justice said in his paper, are we some kind of an elitist group divorced from what is happening on the ground or are we part of the people that we are serving? I believe it is at a conference like that where we’ve got to examine ourselves and say, do we interact with the community or don’t we? And let me explain my – or maybe I’ll be accused of preaching alright, that is it. It is the opportunity that we have to force staff collegiality to say, colleagues, this is what is dividing us. What is it that we can do to make sure that we are as united as we should be? I believe it is also an ideal forum at which to discuss things like judicial case management which was discussed there. To say, you know, we’ve been doing these things this way, has it really worked? What is it that we need to do to ensure that we do not lose the credibility that the justice system cannot survive unless the Judiciary enjoys that credibility before the eyes of the public. And then to say we’ve raised concerns, we’ve suggested solutions, here are the solutions, let us not just put them in a nice document that will gather dust. What are we going to do to make sure that when we next meet we would have implemented the resolutions that were passed and we are taking our performance a step further. It is essentially about ensuring effectiveness and efficiency within the Judiciary. What is it that we need to do to be more effectiveness, to be more efficient? How far have we been able to contribute towards the transformation of the Judiciary, have we marked the mark or have we performed below standard? And if we have to the extent that we have fallen short in some respects, what is it that we can do to either try to enjoy the confidence of the public or maintain the confidence that we’re already enjoying.

Q: And etc, etc.

A: Etc, etc.

Q: Justice Mogoeng, I’m told that the last National Judges Conference was not well attended, in the sense that there were some judges who were conspicuous by their absence. Can you comment that?

A: It is quite true and, you know, just as a way of commenting I think one of the critical things we need to do in this regard is to beef up our leadership capacities. We need not neglect the need for leaders of courts, heads of courts to be trained on a regular basis on issues relating to leadership so that we can address the problems that we have inherited that are refusing to go away. We are not yet –

Q: Can I just ask –

A: As united as we should be.

Q: Can I just ask was the conference not well attended?

A: It was well attended but it could have been better, it was well attended.

Q: Carry on, I think there is an aspect to Moerane’s question, perhaps you should grapple with that aspect.

A: Should I continue or should I wait for the next question, I didn’t hear it, Chief Justice?

Q: The thrust of the question was not so much those that attended but those that did not attend, who were conspicuous by their absence?

A: Yes, that is true. One Judge President said before the conference even started certain judges in my division, certain judges are surprisingly all on holiday, they have committed to some holidaymaking. And it was strange because our history made it a bit suspicious that only those of the judges in his division were absent. I think it’s something that we need to work on more, I’m very optimistic. I believe that for as long as we continue to grapple with this problem in the country as a whole then it’ll cascade down to even the courts.

Q: Was there a correlation between the absentees and racial classification?

A: Not at all, not at all, it was predominantly attended by black people.

Q: So there was a correlation?

A: I beg your pardon?

Q: You say it was attended predominantly by black judges, where were the white judges?

A: Well, most of them in one division at least had committed to some holidaymaking from what I was told, in one division. I remember saying to this Judge President you’d better talk to your judges even more, find out what the problems is.

Q: Was the one white judge who is the head of court present?

A: Well, at the time I think, I stand to be corrected, I think Justice Traverso but I don’t remember she was Acting at that time, I’m not sure. Dennis Davis is a head of court I don’t remember that he has there.

Q: Thank you.

Q: Rea Leboga. Prof?

Q: Judge President Mogoeng?

A: Yes, Prof?

Q: You’ve talked about a lot of things and to do a lot of things and you’re very enthusiastic about a lot of things. But we haven’t spoken very much I think about your knowledge and especially experience in court as regards the application of constitutional law because you are striving now towards the highest court in constitutional matters. And I see that you state here in my most significant contribution to the law and pursuant of justice, I believe that my most significant contribution to the law and to pursuant of justice has been through among other things the five cases then you cite the five cases. And it seems to me but very briefly that three of them were concerned with constitutional maters, can you perhaps give us an indication as to your experience in constitutional matters and what you really think you can contribute to the Constitutional Court when you get there?

A: Well, as I said, Prof, for a number of years I was afforded the opportunity to orientate newly appointed judges and aspirant judges on constitutional law, that forces you to prepare. That engenders a certain passion within you about constitutional law, it becomes one of those things that, one of those areas of the law that you will be thinking about and reading regularly. Now you only deal with what comes before you, you probably know that the North West High Court is, I think, the only court in the country that is yet to get a huge chunk of areas that fall within the province in which it operates. We are still without Brits and this town around the dam, I forgot the name now, Hartebeespoortdam. We are still without cities like Klerksdorp and Potchefstroom which obviously generate a lot of work. So your exposure to constitutional law depends also in terms of cases that you decide, depends on the cases that come from you. I’m not about to push a constitutional issue into a matter that has got nothing to do with constitutional law. But I believe that within this limited scope in which we operate in that small court I have, when the opportunity arose, done the best that I could to demonstrate what I could do given a chance.

Q: Can you perhaps just give us an example of where you applied constitutional law? And I also want to ask you did you ever have a judgment in which you said that the common law is deviating from the spirit, purport and object of the Constitution and therefore I’m going to develop the common law?

A: Well, starting with the last question I don’t remember dealing with common law in that fashion. And going to the first question, if you look at the (Lesapo?) case I think the significance of that case should not be understated. That is the case that pioneered the right of access to justice. It is from Lesapo that the Constitutional Court began to seriously deal with issues relating to access to justice. And that was not after my appointment as a High Court Judge, that should inform you that given a chance I certainly, and I say it with all sense of humility, have what it takes to make the kind of contribution that this country deserves from a Constitutional Court judge.

Q: Chief Justice, I have a problem, may I ask a question?

Q: You have a problem, Mr van der Merwe?

Q: Yes, can I voice it?

Q: Yes.

Q: What is now hanging in the air is the perception that white judges have boycotted the National Judges Forum, is that what we are implying that the white judges went on holiday and there were very few of them there? There is that perception now that white judges have boycotted that, am I correct?

Q: Mr van der Merwe, there was a question and there was an answer. Do you want a response from the questioner or the responder?

Q: I think I need an answer from both the Judge President and Mr Moerane because between them that impression was created. And I’m concerned about it because at this stage things are going well in the Judiciary and this thing may be a wrong impression.

A: Thank you, Chief Justice, I’ll do my best. In my division the only white judge did not attend, he sent me a though the day before and said he has stress. So at least he gave a reason why he didn’t attend. I know that in one division, I don’t want to single out the division because I don’t have the permission, the holidaymaking was mentioned. In many other divisions the white judges there did not attend, I’m not accusing the white judges. And in fact if you listen to my answer I was trying to be as diplomatic as a judge can be, I was trying to run away from saying white. So I think there may well be a reason which we as leaders need to examine and deal with, I don’t think it’s that we cannot handle as leaders of the Judiciary, I can’t take it there on that.

Q: One of the objectives of that conference, and I was in charge of that conference, one of the objectives was to foster unity in the Judiciary. And of course one thing that serves unity is frankness, is confronting problems, is dealing with those problems and correcting them, but not dividing and not being divisive, in a spirit of being constructive. That is my dream for the Judiciary and I would like that dream to be built on so whatever remarks are being made should be made in that spirit. So I don’t want something to be blown apart here for any purpose whatsoever, I would like us all to combine in building a unified Judiciary in South Africa, otherwise we all, all of us we will have failed in the project we are trying to achieve. You are excused, sir.

A: Thank you, Chief Justice and Commissioners.

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