May 18, 2020 | Season 1, Episode 6 | 50:43
- Justice Dikgang Moseneke talks with David F. Levi about his life, from being imprisoned on Robben Island at age 15 to serving as a justice on the Constitutional Court of South Africa, the nation’s highest court.
- Justice Moseneke discusses his experiences as a modern-day “founding father” who helped draft South Africa’s interim constitution and oversaw the nation’s first post-apartheid elections.
- Levi and Moseneke also talk about some fundamental differences between the South African and American legal systems; Moseneke’s personal and professional relationship with Nelson and Winnie Mandela; injustice, the rule of law, and South Africa’s future as a democratic nation.
This transcript has been lightly edited for clarity.
Levi: Hello and welcome to “Judgment Calls.” I’m David Levi, director of the Bolch Judicial Institute at Duke Law School. My guest today is Justice Dikgang Moseneke, the former deputy chief justice of the Constitutional Court of South Africa.
At the age of 15, Justice Moseneke was arrested for anti-apartheid activity. He was imprisoned for 10 long years at Robben Island alongside Nelson Mandela and other future leaders of South Africa. While in prison, he earned an undergraduate degree and a law degree, and when he was freed, he became a leading lawyer in South Africa representing a broad range of clients including political prisoners and opponents of apartheid. As apartheid ended, Justice Moseneke helped draft South Africa’s interim constitution and helped to oversee the country’s first democratic elections.
He became a justice of the new Constitutional Court in 2002 and was named the Deputy Chief Justice in 2005. He retired from the court in 2016. Justice Moseneke is the 2020 recipient of the Bolch Prize for the Rule of Law, which recognizes extraordinary dedication to the rule of law. I can think of no one more deserving of this honor. What a privilege and a pleasure it is to welcome you here today, Justice Moseneke.
Moseneke: Professor Levi, it’s a total privilege to be here, to be a Rubenstein Fellow, and indeed to be a recipient of the Bolch Prize.
Levi: You have published a marvelous memoir. One of the themes is evident in the book’s title, “My Own Liberator.” I’ve read the book and it’s a wonderful book. I highly recommend it. Can you explain the title?
Moseneke: Yes, indeed. The core theme of the book is individual agency as well as collective agency, and that agency, I want to suggest, extends to the steps that one would take to liberate oneself from whatever oppression one might encounter in one’s life. In my case, the oppression was apartheid and colonialism, and this book really celebrates the obligation to free oneself from oppression and to join hands with others to achieve a just society.
Levi: You say at different times, “You can’t offload this to someone else.” In other words, this is something that can’t be done for you, but you have to do for yourself, ultimately.
Moseneke: Indeed, as I often say, you cannot outsource it to another. If you find yourself in an oppressive situation — and this was not political and socioeconomic oppression — the view I took and the view that many of my comrades took was that we ought to organize ourselves to fight the injustice of apartheid, and it’s something that you can’t give away. You can’t leave it to others, otherwise, it will just never get done.
Levi: It’s very tempting to begin your story at age 15 when you were imprisoned on Robben Island for the next 10 years. But as you structure the book, there’s a whole family history before that. And could you talk about that a bit because you have a very interesting and — one might say — successful family.
Moseneke: Yes. Thank you. I mean as you saw, it was important for me to understand my own roots. One of the things that oppression does is to try and obliterate your humanity as though you have no origins. You have no connectivity of no kinsmen and women, and therefore, you have no past worth talking about.
And I sought just to make the point that I can recall and that my forebears right back to the 1800s, the end of the 1700s, and with research, I came to find out who they were, which draws me back to my grandfather, having recited who his forebears were, who became a teacher and later minister of religion and who gave all of his children access to a college at which they qualified and some of them moved on to university. So I describe how my grandmother and father were seminal figures in putting together a family, and that’s how I was born into a family of a mother was a teacher, father was a teacher, and with siblings who by and large had the benefit of, of education. And for my part it was obvious, the only thing I could do is to work hard, and I acquired a secondary education.
Levi: This combination of Methodism — because your grandfather was a Methodist minister — and education is so appropriate because here we are at Duke, whose origins were as a Methodist university and was part of that impulse in the United States. There are other, other universities here as well.
Moseneke: Indeed, it’s a privilege to be at Duke. I had no idea that it’s so beautiful a place and campus, and I was even more flattered when I was told the chapel was really part of the entrepreneurship, religious entrepreneurship, of Methodists who had a hand in the early parts of Duke. So, it’s quite a privilege to be here, and I acknowledge, without being Bible clapping the formative role that Methodism played in my life. I was at a Methodist boarding school; I had Methodist teachers and, yes, in the book I do say that and acknowledge that.
Levi: So all of this was interrupted when you were arrested in your high school years and sent to prison, which is not an experience that most of our leading judicial officers have had. For 10 years, which was a very long time, you were in a political prison. Can you describe that for us? You do so well in the book. It’s so multi-faceted.
Moseneke: Thank you. I had no option because Robben Island — a little island seven miles by three, four miles — a tiny island just off Cape Town. It’s location reminds me much of Alcatraz in relation to San Francisco for the American audience. And it was always a destination for political dissidents. So when we got there, we were continuing a long tradition of colonial powers imprisoning people on an island. And there, we were with the uprising of the 1960s in South Africa, all taken from an island, and [it] became a blessing because it was a political prison, or prison for political prisoners. And as you’ve heard me say it a good few times, that gave us space to regroup, to reassure each other that we are part of a just struggle and to reassure each other that we are our own liberators.
And that was a little mishap. If you get arrested, obviously, you aren’t going to continue with the work to depose a government. But we vowed that when we left, we would do that. We would continue to do that. But we did other more important things. We studied, and we debated the features of a just society. What are the elements that would do well if you want to reconstruct apartheid into an open democratic nonracial and nonsexist society? What instruments do we require? Then we didn’t quite know that we are preparing to write an incredible constitution in time. But yes, Robben Island became a university, and I always remind people that Nelson Mandela was there for 27 years, almost three decades, and seeing it in that light, my one decade just pales into insignificance because I wouldn’t have survived as long as he did, but he did and came out to be our leader.
Levi: You took a number of undergraduate degrees while you were imprisoned on Robben Island and one of them was in law. Why?
Moseneke: In my second book, I speculate about what I would have done, what I would have been had I not gone to prison and I thought I probably would have become a doctor. My science marks and grades were quite sparkling. They were quite good. But once I was on Robben Island I knew I must put away the idea of being a scientist or a doctor or advancing the sciences. It’s easier to study long distance and after hours law than it would be any of the sciences. So I started off by studying political science and English literature. I always liked reading from childhood, so it came near naturally that I would have a three-year major in English, English literature and political science. I was a political prisoner, and I wanted to know what all these philosophers of many years — starting from Aristotle and Plato, and St. Aquinas, and all of the thinkers through the ages, to the more recent thinkers, like Jeremy Bentham — I wanted to know what they had said about the nature of society. And that became quite natural that I’d do a BA degree in English and political science. Law, why? Well, the decision was to go and fight the system and I thought, one, I wouldn’t get a job easily if I had to work with somebody else, two, the law would be a very valuable instrument to undo apartheid, to expose its legal deficiencies, and that’s what I chose to do.
Levi: So that was a big decision for you. And it may not be clear to our listeners that many of your comrades who left Robben Island they actually left the country and became freedom fighters elsewhere, taking up arms, and you decided to go this different route. And you and I’ve discussed this, you used the rule of law against the rule by law. And maybe you could talk about that because it’s so interesting.
Moseneke: Yes, and the option was to, as you’ve rightly pointed out, to go into exile and fight from the borders, plant bombs, and do a number of things that insurgents do against an unjust regime. The other was the one that I took, which was to become an internal insurgent, if you like. And I had to choose the means, and the means I chose was lawyering. And you must ask immediately as you have just done, Professor Levi, how do you become a lawyer in a society which opted to use the law to oppress and to exclude others in the way that apartheid did? And my selection was apartheid is really constructed and the fruit of the law, but [the fruit of] law that is unjust and law that is incapable of bringing or generating a just society.
My duty was to find the gaps, the loopholes, the procedural lapses to try and argue and give interpretation to words that would favor and give release to the victims of apartheid. And in a number of cases, and as I said earlier, I wasn’t alone when a brigade of progressive lawyers who wanted to show apartheid for what it is. So every case, I mean, if the defendant gets convicted and gets piles of years in prison, it would have been an event in itself, an organizing event. So there are two parts to it, the one is to bring relief by exploiting the inevitable imperfections of a regime like that where the law tries to cover everything but it can’t and it never does. And the other part was to use it as a platform to articulate a different society. So often I would stand up and argue, “Your honor, or my Lord, or my lady, this is a draconian law. It imposes the following hardships on the people who are before you, the defendants, and in fact there was no option but to act in a particular way because the law did not create such an option.” So every time you argued opening argument, closing argument, you actually had an opportunity to pillory the system to show just how unjust and unfair it is. And that was part of the joy. You tell, as you do it in open court — you tell the whole world and you use the court to organize even more people to resist and discredit apartheid.
Levi: You had to fight your way into the bar. And this whole aspect of the apartheid regime is fascinating because it shows, I think, what you call the “schizophrenia” of the ruling elite.
Moseneke: Yes, indeed. They hoped to be seen as civilized, considerate, and reasonable women and men. But predominantly men, the apartheid was run mainly by men because they also were so patriarchal towards their own women. But they’d always hoped that they would be seen with kind eyes for in people who care for the law. And often when you studied law, for instance, I learned that quite early in my studies they would recall, for instance, Roman Judas, like Justinian, like they would call up Roman emperors who had codified that part of the law. So they had admiration for Roman law and Roman-Dutch [law]. It was introduced into Holland and was annotated by people like Grotius and all of those thinkers in Holland in the 16th and 17th centuries. So they saw those as their ancestors and that they were the progeny of those legal thinkers.
So they would pretend that they actually are having a rule of law when it was rule by law. So every time you pointed to an injustice, you pointed to ineptness, you pointed to unreasonableness, of course, it’s a considerable embarrassment to them. And as you know, I told you about my admission. They argued to the law society or the bar council association said, “He can’t get be admitted. He’s an ex-con. He’s a formerly convicted person who has been in prison for 10 years. So he can’t be admitted to the bar.” And my argument was that no, I know who should have been in prison, not me. But frankly, I did not commit any act of dishonesty, unfaithfulness. I was convicted for expressing a view about what an open, just, and democratic society should look like. If that is a crime, it’s still a crime today, but it says nothing about moral turpitude, about my integrity. It stays intact. At best, your honor, it could be said we have a different view of the world, but it can’t be said I’m a dishonorable man, and I got admitted.
Levi: Do you think they wanted to take that back later?
Moseneke: I think that they heard the argument and they knew that apartheid was an injustice.
Levi: You first came under Nelson Mandela’s influence when you were in Robben Island, he was quite a bit older than you. You had a wonderful relationship with him and Mrs. Mandela. Could you talk about that? There’s some sort of interesting twists and turns in that relationship.
Moseneke: Oh yeah. When Mrs. Mandela was outside and the husband was inside in prison, she had several occasions where she required legal protection and defense. Well, if you knew her you would know that she was an activist and the militant one at that.
And as I’ve described her very respectfully in other respects, she was near fearless and she had a husband, of course, sitting in prison, and she’s bringing up her small children. She was Nelson Mandela’s second wife and she was very young when Nelson Mandela went to prison. And the two children she had to bring up alone. So that part often gets forgotten, and I was close to it and defending her, so I was also alive to her personal burden. The media often wanted to dismiss her as a volatile human being, and so on — political conservative people — but the truth is she carried quite a burden and her husband in prison for 27 years, and you’re a young bride. She had some challenges.
So he, Nelson Mandela, asked me to take up cases for her. One such example would be the Stompie Trial where Mrs. Mandela was accused of having had a hand in capturing and being complicit in the murder of a small, a young boy, and Judge Bizos and I were counsel in the matter and we had to fight to keep her out of jail, which we succeeded to do at the express request of Nelson Mandela. Yes. Over the years, while he was in prison and immediately after they came out, there was a considerable closeness that developed between us, and he seemed to have a view that I’d be a good troubleshooter if there’s something to be done, if there is somebody who can do it. As you know, he historically invited me several times to come in, do big things that he wanted to, or boulders that had to be rolled out of the way. He would invite me to do that, ending with me being, of course, an executor in his deceased estate.
Levi: You, I think at his request, represented Mrs. Mandela in their divorce proceedings.
Moseneke: Oh, yes. I’m not sure. Maybe it’s not at his request. At that time, he may have wanted me to appear for him because then I was a fairly established lawyer and I’d come into my own. I was punching with the big boys and girls. So it was Mrs. Mandela who reminded me that I was her counsel and not her husband’s counsel. And the fact that he’s now president was not enough for me to switch allegiances, and I appeared for her.
Levi: And that might’ve been a little bit awkward given the eminence and how revered he was by you and others.
Moseneke: And he was already president of South Africa at the time, so it was quite awkward indeed.
Levi: Well, he had a number of big roles for you that he wanted you to take on. You were a constitution writer. I don’t know if that was his specific request. And you also oversaw the first democratic elections and we know from our experience with contested elections that they often don’t go down all that easily. So let us talk about those two things. They’re both very, very big experiences, the first being the drafting of an interim constitution. How did you become involved in that?
Moseneke: Oh yeah. There was a need to put together a team of eight people who’d be responsible for writing the interim constitution. Think about it. Conflict, both internal, external. Nelson Mandela gets released from prison. We start to have negotiations to terminate the apartheid system and introduce a democratic one. And that would do only if we actually have a democratic constitution. So it was necessary to write a democratic constitution that would provide for elections. The first elections ever were under apartheid. Elections were always racist and exclusionary, so it was necessary to write up an interim and the parties negotiating would cut deals and agree, and we would be tasked with the duty of writing the formal interim constitution. And yes, I was invited into the committee by Nelson Mandela, and I was one of the few very senior African lawyers who had gone through the mill and the drill, you know, we’d been there right through the struggle, and who, therefore, would have had the benefit of legal training, but also training within the struggle and patriotism and loyalty to us a democratic course.
So it was not a difficult pick to make. It took us a good six months to nearly a year writing out the interim constitution, so there is a massive privilege. Think about it, starting off, as I often say, as a slave and working your way through imprisonment and all of that ending up on top of the pile of lawyers and then being invited to come and write a new constitution for your country. And I recognize that to be an enormous privilege. It’s not often that in the same struggle you start from the one end and move through the full gambit, the full scale of movement. And when he invited me to do that it was a very big privilege.
Levi: And by that time you were one of the, you’ll be modest, but you were one of the top lawyers in the country. I think any lawyer, though, asked to become one of the drafters of a constitution would feel the weight of history and of future judgment perhaps. So it’s a very great honor. How would you prepare yourself as you worked through this task? Did you look at other constitutions? Did you consult with constitutional scholars from other lands? How would one go about this?
Moseneke: Yes, there are a variety of things that we did. All of us were green to writing a constitution. We had one constitution — it was the apartheid constitution — and that was not a place to look at; that’s exactly where we would have to turn our backs on. And therefore, well a number of things.
One of these was to have initial seminars on the kind of just society we have in mind. Two, there were a lot of inputs from political actors who are yet, of course, to go to elections and be tested. They had views about how South Africa should look like. Let me give you an example. It was a big debate about federalism and unitarism, of having a federal state, a la America or Switzerland, I’m just thinking about the big federations of the world, or Germany in part, which is a mixed system. Or having a unitary state, as the United Kingdom generally. Or is it a confederacy? So it opened up time to learn a lot about structures of states.
Two, we looked around the world. I remember compendiums of complete constitutions of the world, research collections. And it was before the days when the web was so powerful and you could find anything on the web. So you would have compendiums of different constitutions. And that’s when I realized that they actually are quite varied and many go very limping because they don’t have everything that you need. We needed to write everything down. We’re coming out of a horrible regime and people wanted a, what we call a never, never again constitution where none of these defects and fault lines of society would be repeated. We looked at India; we looked at Canada; we looked at the U.S.; we looked at a number of countries on the African continent, Ghana, Nigeria, the bigger ones, the more established ones, Botswana.
We looked at Eastern Europe, and most of them were just trying to pull out of the Russian orbit, like Romania and Latvia and Lithuania and Belarus, and so on. So they themselves were not developed democracies. Of course the common cause was that we wanted to be a democracy, open democracy. So we looked around. Then there was a time then to sit down and make difficult decisions. But it’s fascinating. And a real privilege, starting from what would be the name of this country, and it was the first debate. This is how open-ended it was. We could have called it anything. In fact, of the three or four suggestions on the table. South Africa prevailed. I would have called it something else, which I won’t tell you now, but South Africa prevailed. When you start anew, you want to have a new name. You know what I mean? You don’t want to just keep your name, but somehow the lot that wanted the name kept won. But having said that, it was a systematic slow process where we have parliamentary sovereignty or we’ll have constitutional sovereignty or constitutional supremacy. If so, what kind of judicial review? Should there be judicial review? And if so, by whom should the review be done? So you can see that it was a slow-brewed process of really thinking afresh, if you like, brick by brick, stone by stone, what our society would look like. A big privilege.
Levi: So you come through that experience and you’re a busy lawyer and you steal a few days to go on vacation with your family. And what happens?
Moseneke: Yeah, just at the end of the grueling writing, accompanied by my wife and I and our kids ran into the bush. As you know, we have wonderful wildlife parks in South Africa, and we went to the Kruger national park and we thought we were all gone until — as I described in the book — a ranger came to me with a walkie-talkie and said, “Excuse me, sir. There’s somebody who wants to talk to you.” And I said, “How could anybody know I’m here?” And he said, “Sir, I think you want to take the call.” I said, “Why would I want to take —” and he said, “Sir, this is Mr. Mandela.” And of course.
Levi: You took the call.
Moseneke: I wanted to take the call. He had done all sorts of things until he connected on a radio, walkie talkie. And to me, it was all complicated stuff, but there it was. And he said to me, “Dikgang, I think you must pack your bags. Where is your lovely wife? Tell her I’m asking (he was really commanding) you people to come to Cape Town by tomorrow. We’re having a meeting with Mr. de Klerk and Judge Kriegler. The four of us have to meet tomorrow to talk about something very important. I have another assignment for you.”
Levi: There it was.
Moseneke: There it was, on my way. Take my kids and get them out of the water, and come on child, we’ve got to go. And then we went on an airplane down to Cape Town because indeed there was a meeting at Tuynhuys, the presidential [house] like the White House [but] in Cape Town, and F.W. de Klerk was there, and Mr. Mandela, and Johann Kriegler, and myself. He was going to be the chair. He was a sitting judge in the apartheid regime, Johann Kriegler, and I was senior counsel. As I say, I wasn’t a judge yet, and we were the team that was going to lead the elections, and I was Mr. Mandela’s pick and he was F.W. de Klerk’s pick who would lead the elections. Now a bigger assignment you don’t get; a bigger call by history you don’t, you don’t run into.
Levi: Because that first election is so important to establishing the legitimacy of the government.
Moseneke: Absolutely. Starting with who would run it, people would want to know, who the heck are they, why would we have to heed them, and so on. So that’s an enormous task. Suffice it to say we pulled it off, and just a glorious moment to be able to say, “And the winner is Nelson Mandela and the African National Congress.” So it was, it was a remarkable moment. None of us had run elections before. And people who don’t have accepted elections run by the past government, not by any means, need it to be independent arbiters who are and seem to be so. And I tell a little bit about all the travails of the elections in the book, but in the end, we managed to pull it off.
Levi: And people felt it was fair and accurate, and that’s what mattered.
Levi: And then you took a time in business. You had a very impressive business career for a number of years, which we’ll defer to another time. And things were going quite well for you there and you were very interested in what you were doing and very good at it — the development of this new company, a telecommunications company. And so that’s — it was very interesting to you as a person of the future. And you got recruited to go on the bench. Tell us about that.
Moseneke: Yes, I was having fun and I’d made up my mind freedom meant going out, not worrying again for poor people and not worrying for the struggle. And we had freedom and we had just established it. We had to make it a reality. And I thought I’d given my best shots, you know, and therefore I was entitled, and I was in my 40s, early 40s. So I thought I was strong and ready to take on the world and the world was my oyster. And having gained some level of noticeability, I thought I’d be able to make transactions and deals and enter the economy.
Perhaps let me start with Thabo Mbeki who became president, the second president after Nelson Mandela. He was very anxious to have a representative judiciary. One of the challenges of transition was you can’t have a transition and retain all of those judges. And my second book, I talk about the wrestling that happened at that time. You cannot wake up and fire all the judges because you had no substitutes. One of the ironies of the transition, and we wrote in the constitution that everybody who holds judicial office shall continue to do so as appointed to the same terms and conditions as before the introduction of the new constitution. So we preserved continuity because we had not trained enough people to become judges on day one.
So it really meant you needed your countrywomen and men to hold fort and to continue doing their work. And it also was good for cohesion besides the fact that you could not fire them day one and not bring the courts to a standstill. So there are two sides to it. We needed continuity. The courts must continue to work. But at the same time, we needed space to train newer and other people to come in and assume roles as judges. But my sin was that I was ready. Having practiced for all the years and as a senior counsel, and I was obvious judge material. So I was hard-pressed to go and accept an appointment. I resisted and resisted until, of course, as you know, the president at the time Thabo Mbeki, then Arthur Chaskalson who became our chief justice and was chief justice then, and he wanted a succession plan. He wanted somebody like me and others like Justice Ngcobo, Justice Yacoob, Justice van der Westhuizen, to come onto the court as the second wave of judges and who’d be more representative and more diverse because the first lot were predominantly white males. Predictably that was the only reservoir, the only pool.
And when I resist resisted Arthur Chaskalson, having fun, he asked Mr. Mandela to give me a call.
Levi: Ah, that was dirty, underhanded.
Moseneke: Underhanded, and he was chief and he wanted, you know, younger lawyers that he thought…and remember, we had written the constitution together, the interim constitution, Arthur Chaskalson, I succumbed when he said, “Dikgang, your people need you.” Those are heavy words to come from an old man and a leader, “Your people, your people need you.” So I succumbed to resign from all the corporate positions to take a massive drop in my income and otherwise from a corporate world to a judge.
Levi: So many judges can identify with that. It’s, of course, a great honor, and you were up to the challenge. It’s a 15-year term. You eventually became the deputy chief justice and acting chief justice and should have been the chief justice. Maybe we’ll talk about that in a moment. But what stands out for you during that time? Was it a very fulfilling time for you on the court and why?
Moseneke: You know, when I look back I couldn’t have asked for better, much as I was taken out of the corporate worlds kicking and screaming. I was having fun because new South Africa was open, possibilities were endless. With a bit of hard work and brain, you know, you’d have gotten very, very far. I don’t know if I would have been happier if I had made more money than, you know, than the opinions that I had the opportunity to write. The building blocks that I helped to put up there for a new fresh jurisprudence. Just the joy of getting more and more people around the world and courts and acknowledging that we are new, but we are on the right track. And that, of course, was demonstrated by more and more and more judges around the world visiting our court. And occasionally we’ll get flattered in jurisdictions where they would cite our opinions, a young court as we were.
And we got visitors, an American audience would know this, we got Senator Barack Obama, who in time became the president, he was not then. But he found it and had come to know that the Constitutional Court where I worked was a place to go. And when he became president, I was suitably flattered, of course. Justice Ruth Bader Ginsburg came and became a justice in residence. And for a good two or three weeks, she was there. She was holed up in our court and with office space and library and very much living around us, and being very much part of us in our tea rooms and so on, and the common room. How privileged could you be? Justice Stephen Breyer came out to visit us, and so on.
So you’re beginning to be that court, which was to go to, and I had the privilege of writing to my heart’s content on just about every issue that confronted the courts. And that would have percolated from the bottom, from all the courts through the appellate court until it came to the highest court in the land. And, of course, the honor that came with it, and, of course, the regard and recognition and respect. I don’t think any money would give you any of those things. So yes, it was such a privilege, and I began to get invitations from around law schools — not only in the U.S. but other law schools around the world — who would have wanted to come and visit for varying periods. We were ourselves surprised, that is true of Richard Goldstone; that is true of Albi Sachs, is true of Edwin Cameron, or Yvonne Mokgoro or Johann…so our judges were sought after.
Levi: A very distinguished group.
Moseneke: Yes, indeed. We went around the world to go and do a variety of things at a conference or half a semester, a full semester and so on, sharing what we are doing as a judicial corps.
Levi: Were you ever tempted as a draftsperson of the interim constitution to say, “Well, let me tell you what I had in mind when I agreed to this” — or was that, would that have been bad form?
Moseneke: It would be totally bad form. Arthur would have had the same temptation and one or two other people who were part of the follow-up constitution, which was redone later on. But let me tell, no, somehow we sought to disabuse ourselves of the notion that we had a hand in the drafting and modesty requires no less.
Levi: You wrote some major opinions. Is there any one in particular, now, from this distance, that stands out in your mind?
Moseneke: I wrote probably a trilogy of opinions on what Americans would call affirmative action, what we call restitutionary measures, and setting out and explaining our notion or substantive justice. The difference we draw between equal protection of the law, or you call it protection under law, and remedial measures which are necessary to equalize society. And we did not have to rely on precedent because the constitution was very explicit about the power of the state to be able to do that. But as you’d know, being a very experienced judge in your own right, there’d be disputes about whether a measure is in fact an ameliorative measure. Is it a restitutionary measure or not? And have I been legitimately kept out? So you had a series of white litigants would come and say, “I was improperly not promoted.” And does this fall within remedial or restitutionary or affirmative action measures as permitted and authorized by the constitution? And it followed me to write that and to set up the jurisprudence, which is taught generally now in our law schools. And the second one was to write around issues of corruption, executive corruption.
Levi: Well that might bring me to my penultimate question. So there was a time when you should have been appointed chief justice, and I know this is a story that you’ve covered in your second book, which is not out yet but will be I think in the later in the spring. What can you say about that?
Moseneke: Well, plainly I’d hope to be chief justice. It would have been an incredible fairy tale. Small little boy in a depressed neighborhood rises to become the chief justice of a democratic South Africa. It would have been the cherry on top. I’d be less than candid if I said I did not desire it. I did.
When it was clear that I would not become, having been overlooked three times, as I often say, not once, not twice, but three times, the opportunities to promote me to be the chief. So I became deputy chief justice for three chief justices. It was not easy to swallow, but I did, and in fact, very quickly discovered the joy of being freed from the administrative burden of being the chief and the joy of not having to interact with politicians and departmental officers and the budget and all of this stuff that goes to being a chief and ran into what was probably my golden era on the court because I wrote opinions from here to high heaven, which are predominantly unanimous opinions, which meant that I had some level of intellectual leadership on the courts for which I was quite grateful that I had a meeting of minds with my colleagues on the courts. And we’re blessed with that, that most of our judgments were, in fact, unanimous and occasionally splits, but very rarely. So yes, that gave me enormous satisfaction, which continues to happen now when I go to law schools and I find that they are teaching a lot of the opinions that I had the privilege of penning together with my colleagues on the court.
Levi: That’s very gratifying I think for any judge. Well, on these podcasts, I like to end by asking the judicial officer, such an eminent person as yourself, who has been your judicial hero in your life? And I know you’ve probably had many and it’s hard to choose one, but if you had to choose one, maybe two, who would they be?
Moseneke: Let me think again. One would be South African and perhaps another would be American and yet another might be British, but certainly Arthur Chaskalson stands outs, Chief Justice Arthur Chaskalson. He has penned a remarkable opinion on the death penalty and why it is inconsistent with an open, democratic society striving for social justice as ours, and many other opinions thereafter. So I see him as a giant, and I know I might be slightly prejudiced. He recruited me. He got me onto the court and basically had a lot to do with my own own career. Certainly the UK Lord Denning. I’ve read a lot of his judgments, and I fancied myself writing as clearly and thinking as clearly as he did, and [his opinions] are a lot closer to home being sort of a common law jurisdiction in that sense. Again in the U.S., I won’t pretend to be entirely neutral on that issue, but it’s certainly Justice Ruth Bader Ginsburg. I saw her doing it again just yesterday in the minority opinion about the shooting over the Mexican border. So yes, she would be the justice I would admire certainly in this jurisdiction.
Levi: Well, I think the admiration flows in both directions because, as you know, she will be one of the speakers at our prize event when you are awarded the Bolch Prize. Justice Moseneke, it has been such an honor to talk with you. Thank you for your work to advance and defend the rule of law. Your leadership and example extend far beyond the borders of South Africa.
This has been another edition of Judgment Calls. I’m David Levi. Thank you for listening.