By Nomfundo Manyathi-Jele

The Deputy Chief Justice, Dikgang Moseneke has retired from the Bench of the Constitutional Court. On 20 May, a special sitting was held at the Constitutional Court where Justice Moseneke delivered his final judgment (Federation of Governing Bodies for South African Schools v Member of the Executive Council for Education, Gauteng and Another (unreported case no CCT209/15, 20-5-2016) (Moseneke DCJ)) to mark his retirement.

Included in the guests that attended the special sitting were former presidents, Thabo Mbeki and Kgalema Motlanthe; human rights lawyer, George Bizos; and various representatives from different legal entities.

Former presidents, Thabo Mbeki and Kgalema Motlanthe, recently attended the special sitting at the Constitutional Court, which marked Deputy Chief Justice Dikgang Moseneke’s retirement.

Who is Justice Moseneke?

According to the Constitutional Court website, Justice Moseneke was born in Pretoria in December 1947. He attended primary and secondary school in Pretoria. At the age of 15, while in standard eight, Justice Moseneke was arrested, detained and convicted of participating in anti-Apartheid activity and was sentenced to 10 years’ imprisonment, which he served on Robben Island. He was the youngest prisoner to be taken to Robben Island.

Justice Moseneke studied for his matric, as well as two degrees while in jail. He obtained a BA in English and political science, as well as a BIur degree while in jail. ‘He later completed an LLB. All three degrees were conferred by the University of South Africa’, his biography on the website reads.

‘[Justice] Moseneke started his professional career as an attorney’s clerk at Klagbruns Inc in Pretoria in 1976. In 1978 he was admitted and practised for five years as an attorney and partner at the law firm Maluleke, Seriti and Moseneke.

In 1983 he was called to the Bar and practised as an advocate in Johannesburg and Pretoria. Ten years later, in 1993, he was elevated to the status of senior counsel.’ Justice Moseneke was the first black advocate to be admitted at the Pretoria Bar.

Justice Moseneke also served on the technical committee that drafted the interim Constitution of 1993.  ‘In September 1994 … Moseneke accepted an acting appointment to the Transvaal Provincial Division of the Supreme Court. Before his appointment as Justice of the Constitutional Court, in November 2001 Moseneke was appointed a Judge of the High Court in Pretoria. On 29 November 2002 he was appointed as judge in the Constitutional Court and in June 2005, Moseneke was appointed Deputy Chief Justice of the Republic of South Africa,’ his biography reads.

Tributes

At the special sitting representatives from numerous entities paid tribute to Justice Moseneke. Chief Justice Mogoeng Mogoeng said Justice Moseneke’s life should be an inspiration to South Africans. ‘It is difficult to know what to say and what lessons to draw from a life so well lived. But one of the most profound lessons to draw from, is his life,’ Chief Justice Mogoeng told a packed Constitutional Court.

Chief Justice Mogoeng said Justice Moseneke was a great leader from whose life every South African should learn from. Justice Moseneke was overlooked for the Chief Justice position three times, but he took it in his stride, Chief Justice Mogoeng said. ‘He went through so much and was unquestionably qualified and experienced to be the next Chief Justice. He knew it too, that he was qualified and experienced to take over. I was impressed by what he said regarding that issue, that it is an honour for him to become a judge, a judge of a high court and more so, to become a Deputy Chief Justice,’ said Chief Justice Mogoeng.

Chief Justice Mogoeng praised him for not being a bitter man after his suffering when he came out of prison. ‘He returned to Pretoria, and sharpened his legal skills. He worked in the same Pretoria Bar that had refused to admit him. In the words of an American: “Ask not what your country can do for you, but what you can do for your country.” Let us be selfless, let us be content with the little we have, knowing that there are more who go to bed without having eaten,’ he said.

Various persons from the legal profession also paid tribute to Justice Moseneke, including chairperson of Advocates for Transformation, Dumisa Ntsebeza, who told the full Bench that the occasion was like no other. ‘His has been a life lived in full … from a political rebel to a justice in this court. He had battles against Apartheid even after his release from prison, when the then Transvaal Law Society refused to admit him on the basis that he was not a South African, but a resident of Bophuthatswana … but he soldiered through.’

The President of the Black Lawyers Association, Lutendo Sigogo described Justice Moseneke as a ‘great son of the soil. The humble servant of the people of South Africa.’ He said that he lacked appropriate words to describe the role the outgoing Deputy Chief Justice played in the transformation of the country.

‘His judgments are not influenced by emotions, prejudice and stereotypes. In his judgments there is no favouritism or fear … [Justice] Moseneke will leave a void in [the] court, which will never be easy to fill … What is however pleasing, DCJ, is that you are not leaving us forever. You will always be available when South Africa needs you … Today you are only retiring from active service as a judge,’ Mr Sigogo said.

He added that the country looks at Justice Moseneke as one of the strongest judges in this court, ‘a towering legal mind’. ‘DCJ this retirement takes you from the court room and puts you directly at the dispensary of the people. With your sharp mind please engage in the national discourse and make your voice be heard,’ he pleaded.

Deputy Chief Justice Dikgang Moseneke and his wife Kabo Moseneke at the special sitting to mark Justice Moseneke’s retirement recently.

Speaking as the President of the National Association of Democratic Lawyers (NADEL) and Co-chairperson of the Law Society of South Africa, Mvuso Notyesi described Justice Moseneke as a courageous man. ‘At the tender age of 14, you must have been a courageous man to choose the side of the oppressed and champion their cause. It must have taken a special wisdom – at one’s risk – since the wrath of the oppressors who were subject to no restraint, awaited. The pain and suffering of your people, coupled with the vision of a free society in which all would enjoy the universal freedoms, compelled you to reject and abandon the life, which the majority of your age group elected to live. Prospects of solitary confinement, long imprisonment, torture and long separations from your parents became a path to endure, for a cause of the majority and the future of your people,’ he said. He added: ‘Your response to the call by the masses to assume the responsibility of the Bench was an attestation to the commitment you made for the freedom of your people. As I understand it, your personal importance or position were never a consideration. Guided by your conscience, you easily agreed to leave your lucrative practice and other responsibilities which brought personal wealth and riches. Your commitment to our people and the life of South Africans as promised in the Constitution, is fortified in your numerous written judgments.’

On behalf of the General Council of the Bar, advocate Jeremy Muller, SC said that the news of Justice Moseneke’s retirement had been received with reluctance to admit that an end of an era has arrived. ‘Your contribution to the work of this court has been immense and it is difficult to single out any one judgment,’ he said.

The Director of Public Prosecutions in South Gauteng, advocate Andrew Chauke from the National Prosecuting Authority (NPA) thanked Justice Moseneke for his service to South Africa. He said that the NPA would not have succeeded in its endeavours if it was not for the guidance and assistance that Justice Moseneke gave it. He congratulated him and wished him well.

Deputy Minister of Justice and Constitutional Development, John Jeffery, said that the executive had come to know Justice Moseneke as a ‘highly principled, fearless and outspoken jurist – one who never shies away from speaking his mind, one who pronounces on the law without fear, favour or prejudice, a man who is not afraid to speak truth to power,’ adding that: ‘It is his ability to comprehend the human condition, to see human beings as human beings, not as mere parties to litigation, which makes Dikgang Moseneke one of the most respected and astute legal minds in the history of our country.’

On behalf of Parliament the Chairperson of the National Council of Provinces, Thandi Modise said Justice Moseneke is a man who first set foot inside a courtroom at 14 years old as an accused for wanting to set South Africa free. It is the same foot that has left an incredible footprint in our court system. There is no judge anywhere else in the world who can boast of such a record; a once accused and a prisoner and now not only a judge but a Deputy Chief Justice.

Justice Moseneke responds

Responding to the tributes Justice Moseneke said that the pain and adversity in his childhood prepared him ‘for a life-long commitment to conduct that will bring true and full liberation of our land and all its remarkable people. The sojourn on Robben Island set me on a course of constantly asking: What are the features of a good society? Out of all that emerged two cardinal lessons.  First, you cannot merely dream about your revolutionary ideals.  You have to take real and concrete steps to pursue legitimate ideals.  The second lesson was that I was my own liberator,’ he said.

Justice Moseneke said that he knew when he came out of Robben Island that he had to make a choice; either to go into exile or to remain a combatant in the domestic struggle.  ‘I chose to do things the way I know best.  To become a lawyer of remarkable excellence, of unfailing integrity and of commitment to the broader struggle of our people in all their kinds, shapes and colours for an equal and just society,’ he said.

‘To that end, I wanted to become an attorney even if I was a convicted terrorist.  I did everything to achieve that.  I litigated against the Law Society to let me in.  I went onto the Bar Council, which had a race clause that excluded black people.  There too I kicked the door open.  I was very determined to become a spokesperson for our people in difficult times in our troubled past,’ he said.

Justice Moseneke said that he was a senior counsel with only ten years of practice at the Bar after five years of practice as an attorney. He added that he was blessed with near perfect health. In the 15 years of service on the Bench, he has never taken sick leave, the only time he was away from work was for a week, after his son passed away.

Justice Moseneke concluded by addressing his colleagues: ‘I urge you to remain on this hallowed Bench not unaware of what a privilege it is.  You must recognise that we are standing on the shoulders of giants.  You must promise that you shall remain true and faithful to all that you have been, as a colleague.  You must promise to defend fearlessly the independence of the judiciary, the rule of law and the full realisation of the basic rights that our Constitution affords to each one of our people.  You will be very much part of the transformation enterprise and the democratic project to make our country reflect the text and living spirit of our Constitution.

Fidelity to our oath of office is important, not because we are important but because without it, it is not us, but our people who will suffer.  By our people, I mean the full diversity, poor and rich, white and black, female and male, urban and rural, the marginalised and the powerful all deserve our unwavering protection, which our Constitution demands us to provide. After all, you are the ultimate guardians of our Constitution for and on behalf of our people.’

Justice Moseneke told De Rebus that there were many challenging times on the Bench. ‘I am not sure which would be the most. It is always a challenge when you have a very difficult and complex case. An example is the Glenister case.  It is a famous well-known case but was such a challenge getting to the outcome that we got to.’ And his best moments: ‘There were many, such as writing judgments, you know I love writing.  I love sitting down and writing things. Those were definitely my best moments on the Bench,’ he enthused.

Deputy Chief Justice Dikgang Moseneke’s mother, Karabo Moseneke said that she was very proud of her son.

Words from Justice Moseneke’s family

De Rebus had the opportunity to speak to Justice Moseneke’s 90-year-old mother, Karabo and his wife, Kabo. His mother shared how it was to have more than one son at Robben Island.

‘Today I am feeling good. All the tributes from everyone gave me such pride. We have gone through thick and thin, all five of my boys were picked up at schools and universities and taken to Robben Island. But look at them now. They went back to school and I am so proud of all my boys.’

She added that it was terrible having them at Robben Island. ‘For all those ten years, I never had Christmas at home, I spent it at Robben Island. It was difficult to see Dikgang as a prisoner because he was still young. The warden told me that when I am at Robben Island I am not allowed to cry because it breaks Dikgang so much.’

When questioned what it was like being married to the Deputy Chief Justice, Mrs Moseneke said that he was not the Deputy Chief Justice at home. ‘He was my husband and the father to my children.’

Final judgment

In his final judgment, the Constitutional Court ordered Gauteng Education MEC, Panyaza Lesufi, to determine the feeder zones for public schools in the province within 12 months from 20 May. Currently a child falls into a school’s feeder zone if the child’s home or parents’ workplace is within a 5 km radius of the school. According to the judgment, the Constitutional Court, found traction in Equal Education’s (who joined the case as an amicus curiae) attack on the constitutional validity of the default feeder zones on the ground that they unfairly discriminate by perpetuating Apartheid geography.

Nomfundo Manyathi-Jele NDip Journ (DUT) BTech Journ (TUT) is the news editor at De Rebus.

This article was first published in De Rebus in 2016 (July) DR 7.