Deputy Chief Justice Dikgang Moseneke on the Judicial Function


Thirty years ago on August 17th 1982 Ruth First, a well-known anti-apartheid activist was assassinated while she was exiled in Mozambique. Fast forward to today and Deputy Chief Justice Dikgang Moseneke speaks of the effect Ruth and others had on our society and the judicial function as it stands.

Moseneke began his address by stating how he has noticed that those bent on changing the world, like Ruth First, require courage of principle which all starts with a vision. It was the vision of a non-racial non-sexist and equal society that led to South Africa as it stands today with the high principles of our Constitution, which is indispensable for judges like himself.

“It seems to me that as a judge I must hold dear and cherish the collective vision of the people I am required to serve. I must know and understand the high principles that animate it. Even more importantly I must commit without reservation to help migrate society from its dim past to a just social order. Fidelity, therefore, to the Constitution ­- the supreme law – and other laws of our country, is indispensable,” said Moseneke.

What comes next in the address seems to be a vocalisation of what many in South Africa think today. Moseneke says that it is the rule of law that the country needs, not mob rule and all public power needs to be sourced in law. Not only does public power need to be legitimate, he adds that the people appointed, himself and other judges included, need to be sufficiently competent to be effective in their public duties and to help defeat the triple burden of unemployment, poverty and disease.

“If public officials are incompetent to give effect to their public duties, are incapable of effective and honest use of public resources, our vision of a good society would come to nought. Our transition would abort. We cannot compromise on the competence and certainly integrity of those who ought to help society move to a better space.”

Making the Vision Real

Moseneke points out that beyond a vision, concrete and credible steps are required to make it real. The same is true of judicial function. Judges need to do what needs to be done and realise the vision by showing fidelity to the law.

In many ways, they have done just that he points out. South African courts have shown in many cases that they will not tolerate inequality and discrimination. That the health care of South African citizens is important. That children need to be protected and domestic violence needs to end. That the workplace needs to be a safe and fair environment. Indeed, our courts have done many things right, but Moseneke does still have some regrets.

He regrets that the judicial function can only be reactive and is limited to a specific case and its own peculiar set of facts. He points out that judges are essentially referees, keeping the players on the straight and narrow but can’t actually be a part of the game.

The second regret Moseneke points out is the low level of access to courts of the South African population. Aggrieved citizens cannot afford access to justice on a massive level, whether they be from a low income sphere or middle income sphere. He points out that while Legal Aid does do the best job they can in increasing access to courts, they still lack the resources to make it a reality for many citizens.

Finally, Moseneke’s third regret and possibly the biggest – the number of people in South African prisons. Prisons are overcrowded with prisoners awaiting trial; many will wait around two years while the number of people going in increases daily.

Must Continue To Educate and Train the Young

Moseneke finished his address by reminding South Africans that while much of the battle has been fought, we must not simply put down our weapons of truth and democracy because there is still a way to go.

“Judges, and certainly all of us, cannot now back-off from our bounden duty to educate and train the young, to transmit to them the very best values of our long and heroic struggle. We must keep our collective vision well in sight. We must garner the courage and comfort to speak out and act on it. We must require our public functionaries to pursue in truth a better life for all.

The price we are to pay for social activism is small indeed – nothing comparable to Ruth First’s supreme price. We must be truthful and rigorous in the pursuit of a more equal and just society. We must have the courage to call it right in the most difficult circumstances. That is so because our collective vision is not open to debate. Its primacy is well settled by a long line of virtuous struggle.”

Full Document of Dikgang Moseneke’s Speech is available on the CityPress website.

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