Too much is being made of claims that there is resistance to transforming the judiciary, Justice Dikgang Moseneke told members of the Judicial Services Commission in Cape Town on Thursday.
”I don’t think so,” said Moseneke of the resistance claims, adding that most judges embraced the Constitution, its values and the ”constitutional injunctions” — such as transformation — that need to be met.
He said a collective response was needed where resistance was encountered.
Moseneke, appearing before the commission after being nominated by President Thabo Mbeki to the post of deputy chief justice, took the opportunity to say that judges need to be trusted.
”If we appoint people as judges we should trust them”, otherwise it will create unnecessary levels of tension.
Moseneke told the panel that his first experience of a courtroom was in 1963 when he was 15 years old and in standard eight. He had been arrested by the security police for political activity at his school. He was charged with sabotage and sentenced to 10 years imprisonment. He served all of his time on Robben Island.
”Law appeared in the distant future,” said the man who matriculated, obtained his BA and later BJuris degree while incarcerated.
Moseneke then went to work for an Afrikaner law firm and was later one of the founder members of the Black Lawyers Association.
He was also a member of the technical committee which helped draft South Africa’s interim Constitution.
”[It was] one of my privileges … quite a special moment … a fundamental vindication of what one stood for, what one was striving for.”
Moseneke said he was ”minding my own business” when he was approached by Pallo Jordan on behalf of former president Nelson Mandela to help transform the business sector.
He helped restructure state enterprise Telkom before being head-hunted to lead pioneering black empowerment group Nail (New Africa Investment Limited).
Nevertheless Moseneke, who presently serves as a Constitutional Court judge, said he had always intended to serve on the bench.
When Mbeki telephoned him to offer him the position of deputy chief justice, he did not hesitate in accepting.
Moseneke said the next decade would present special challenges as the country moved out of the ”initial political liberation honeymoon”.
On the independence of the judiciary, Moseneke said this was a ”no-go area, uncompromisable”.
”Clearly there is no one definition of what institutional and substantive independence of the judiciary means,” said Moseneke, adding that debate on the subject was healthy for a transitional state such as South Africa.
He said the test for substantive independence was fairly simple, relating as it did to judges in a particular jurisdiction being hampered or influenced in a manner in which they arrived at a decision in the course of their tribunals.
Moseneke said the more difficult question related to the forms of support given to courts, and how non-administrative staff are appointed.
”It is a grey area and a matter which is going to require quite careful planning.”
He said a model could be found where judges were not converted into administrators and which did not allow interference from the executive arm of government. – Sapa