“It was not the role of an ordinary judge,” says retired Gauteng judge president Bernard Ngoepe of his time as one of three judges on the Truth and Reconciliation Commission’s (TRC ) amnesty committee.
“You listened to somebody about how he tortured people, how he murdered people, how he threw their bodies into the crocodile [infested] river. How he was sitting under the shade of a tree drinking some beers out of a cooler box while people were burning, and thereafter you say: ‘You have told the truth, now you are absolved. You have been given amnesty, now you can go home.’?”
Ngoepe says it required a “paradigm shift as a judge” to be on the committee that granted amnesty to people for full disclosure of apartheid crimes because, in the course of a judge’s ordinary work, a sentence, not absolution, would have followed these confessions.
“You had to have an understanding of what the process was all about … You had to know what this nation is all about, and this nation [at the time] was all about knowing the horrible past and out of it reconstructing a new nation.
“In other words, putting the past behind you … And I took that spirit right up to when I was the judge president [of the high courts in Pretoria and Johannesburg],” he says.
Ngoepe, who headed the division from 1998 until his retirement in 2012, is South Africa’s first tax ombud.
Recalling the forgiving and acceptance of apartheid crimes by millions of black South Africans, he dismisses having any residual ill-feelings towards the judges who were “abrasive and inappropriate” to black lawyers when he appeared before them as a practising advocate during apartheid.
Of one judge, he said: “I am the judge president. He used to shout at me when I was still an advocate, and the like, and now he is working under me. To me, it’s not a problem. I know how to deal with that kind of person, having gone through all that.”
Sitting in the boardroom of the tax ombudsman’s temporary offices in Pretoria, he is measured and careful about the words he chooses and the views he expresses. His eyes appear to lose themselves when he relives the past.
But they become steely when he talks about the chasm that exists between the country we are and the country we had hoped to be when he and others were working on the Constitution in the early 1990s.
“We have not attained the kind of South Africa we all wanted to,” he says, recalling the days spent furiously drafting a vision of the future.
“Poverty is still too much, unemployment seems to be getting worse and we seem to be getting a disturbingly increasing number of people claiming qualifications that they don’t have … We could have possibly, with less corruption and nepotism, improved the lives of many people in our country.
“I’m not saying, by now, we should have eliminated all poverty; I’m not saying by now that we should have employment for everybody; but I am just saying the situation could have been better alleviated if we had practised our democracy properly and in the manner in which we should have.
“The duty to get there falls on every single one of us — the politicians, the police, prosecutors and even the judiciary.”
He adds that every pillar of our democracy, from the executive to chapter nine institutions, such as the public protector’s office, need to work constantly at achieving and maintaining integrity, credibility and the public’s confidence, and that active citizens are vital for oversight.
At 67 years of age, Ngoepe, despite having negotiated a three-day working week, shows no sign of letting up. His curriculum vitae includes having served on the Military Appeals Court, on the Magistrates Commission and on the Judicial Service Commission. He also chaired the commission into the 2001 Ellis Park disaster, when stampeding fans caused the deaths of 43 people during the Soweto derby.
He chairs the appeal board of the Council for Medical Schemes, and the appeal panel of the Press Council of South Africa.
In his latest job for about a year, Ngoepe says he has received a “cocktail of complaints”. His office is mandated to deal with “administrative and service issues” relating to the public’s engagement with the South African Revenue Service and “not with issues of dispute relating to liability. ‘You owe me, I don’t owe you’ — that is a matter for the courts.
“There was a need for this kind of office to come into existence taking into account the complaints we have received.”
He is adamant that citizens’ interactions with the taxman must be addressed properly.
With corruption levels high and the increasing perception that public money is being siphoned off for personal gain, does he think cracks are beginning to show in the compact between the state and South Africa’s small tax base, which also pays for private healthcare, security and education in some cases?
“Paying tax has never been a pleasant thing, even under the best of circumstances, since time immemorial,” he says. But it “becomes worse” when there is a perception that public money is being misused, wasted or lost to corruption.
“That is a legitimate concern and I think it is the responsibility of every taxpayer to entertain that kind of concern … Not many people mind paying tax if it is going to subsidise bread, education, universities and the like. But a problem arises when there is a perception — true or otherwise, which is beside the point — when there is a perception that money is being misspent.”
Raised in a Lutheran family in Ga-Matlala in Limpopo, he says he never aspired to become a lawyer until he was in matric and felt “inspired” by some of the few black lawyers in the country, such as HM?Pitje — and the then Springbok Radio programme Consider Your Verdict.
“Cases were presented and then someone would make a verdict. I liked that programme so much and I think it was instrumental in swaying me towards studying law,” he says, captured for a moment in the past.
He breaks from his reverie and focuses on the present and its problems. A few months ago, advocate Geoff Budlender, while speaking about the state of human rights in South Africa at Stellenbosch University, made a provocative suggestion: perhaps it was time to “draw a line in the sand” over alleged corruption, such as the arms deal, and offer those willing to walk away from public office amnesty.
Would this be viable?
“I don’t know whether, if we do that, we would be able, as he hopes we would, to turn over a new clean page … All that would be in vain unless we, as a people, begin to understand that there are certain things that are wrong and we need to accept that they are wrong. Unless we accept that, we are going to have a recurrence,” he says.
“Unless people are prepared to say that corruption is wrong, it is unacceptable and needs to be dealt with, regardless of their station in life, unless there is that acceptance, you will not be able to solve the problem.
“You can draw the line and have a TRC about corruption and nepotism and other similar activities, but if people do not, within themselves, accept that corruption and nepotism is wrong then I don’t see us getting anywhere.”
Ngoepe is of a generation for whom right and wrong are clear. He refers to South Africa’s high crime rate, unemployment and staggering poverty, and asks: “Where does the fault lie?
“Shouldn’t we begin to look around and find out where the fault lies? It may be with some of us, it may be with all of us …
“Is there something wrong with all the citizens, is there something wrong with the police, is there something wrong with the director of public prosecutions? Is there something wrong with the executive? With our parliamentarians? Those are the questions we should be asking ourselves.
“The conditions under which we are living in this country are not reconcilable with the quality of the Constitution that we have.”