‘Unfortunately, a lot of people will be disappointed, because once those judges come to the [Constitutional Court] bench they’ll realise their master is the Constitution,” says Judge Yvonne Mokgoro.
It was clearly a general caveat against the growing use of South Africa’s highest court as a political football.
One of the “class of 1994” appointed to the court under President Nelson Mandela, Mokgoro’s term ends in October. She is the judge who encouraged junior colleague Judge Bess Nkabinde to report Cape Judge President John Hlophe for allegedly attempting to “improperly influence” the Constitutional Court.
Her replacement — and those of three other judges — will fall to a newly constituted Judicial Service Commission (JSC) under the next government, potentially presenting an opportunity for political interference.
Of the 23 JSC members appointed under the Constitution the president appoints four, the justice minister has one seat and 10 must come from Parliament. Only three may be nominated by opposition parties.
“Our Constitution is a modern document — it’s so detailed that if you steer away from it you’ll probably have to leap away from it,” said Mokgoro in an interview with the Mail & Guardian.
Mokgoro (59) came to the Constitutional Court in an unusual way. Before 1994 she was a specialist researcher for the Human Sciences Research Council.
Her arrival at Brampark — the court’s temporary home before moving to Constitutional Hill — was marked by a disconcerting experience harking back to the apartheid era.
Unfamiliar with Johannesburg’s concrete jungle, the mother of four asked her eldest son to drive her to the court to prepare for her first day at work.
“I remember we drove on the M1 and Thati looked in the rear-view mirror and said: ‘Ei Mama, there’s a police van following us.'”
The police stopped them and dragged them to Brixton police station on suspicion that their car was stolen. They were later released without an apology.
“Judge [Johann] Kriegler blew his top. He picked up the phone and told somebody to ‘never, ever …’,” Mokgoro says.
Kriegler sings her praises. “Kate [O’Regan] and Yvonne [Mokgoro] were the two judges with probably the least professional experience, living in a country with a gender ceiling. To see them blossom, develop and grow is one of the most rewarding reflections on the 10 years,” he says.
It was magnificent to see the combustion that happens “when talent is exposed to opportunity”.
Mokgoro has an activist background. As a youngster in Kimberley, she stood up for a group of men arrested by the apartheid police for loitering — and promptly spent a night in jail after being thrown into the paddy-wagon herself.
The next day Pan Africanist Congress stalwart and lawyer Robert Sobukwe, who secured her release, inspired her to take up law in the fight against apartheid by telling her she should consider becoming a lawyer.
Born on October 19 1950 in Kimberley’s Galeshewe township, Mokgoro studied law through the University of Bophuthatswana and the University of Pennsylvania in the United States. She also lectured at the University of the Western Cape and Pretoria University. She is married to former North West director general Job Mokgoro.
Mokgoro was initially reluctant to join the Constitutional Court, telling those who encouraged her: “I’m an academic right now and all I want to do is engage this new Constitution.” She relented only when “people said to me: ‘Yvonne, you preach change from outside. Do it from right inside.'”
Among the ground-breaking judgments she and the court’s other judges handed down was in the famous Makwenyane case – its second ruling, on the emotive issue of the death penalty — and recognising same-sex marriages.
“I remember the media hype around Makwenyane and surveys showing that South Africa is divided [on capital punishment]. I said: ‘This case is going to make or break the Constitutional Court.'”
It is a source of pride to her that the court handed down a judgement “of such intense significance and to see that South Africans, with untold dignity, accepted it”.
Mokgoro admits she will miss the court and will probably continue reading all its judgements, but she will now focus on teaching law at universities here and abroad.
She will also be able to devote more time to her work as chair of the South African Law Reform Commission and of the council of the University of Venda.