Where to now for SA?

2014-11-16 15:00

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Deputy Chief Justice Dikgang Moseneke talks about where SA is heading

While delivering a speech this week, Deputy Chief Justice Dikgang Moseneke tried hard to be a jurisprudence expert with only a fleeting interest in matters political, academic or economic.

“I propose to stick to my knitting. I must remind myself that although I am a child of our revolution for a just society, I am a sitting judge in the service of all our people and their democratic state,” he said.

After all, he was speaking to a mostly political and academic audience attending the Mapungubwe Institute for Strategic Reflection (Mistra) and the Thabo Mbeki African Leadership Institute conference on “20 years of Democracy in South Africa: Where to now?”

The conference was attended by South African intellectual giants such as Mistra executive director Joel Netshitenzhe, former Constitutional Court Judge Albie Sachs, former Parliament speaker Frene Ginwala, left wing activist Mazibuko Jara and economist Iraj Abedian.

The conference took place at Unisa in Pretoria, where Moseneke must have felt at home because he acquired three degrees through the distance-learning institution while he was imprisoned at Robben Island.

Moseneke is no typical judge – he spent a considerable part of his life as a political activist for the Pan Africanist Congress of Azania (PAC). After rising as high as deputy president of the PAC, Moseneke quit politics and focused on a legal career.

But his speech showed that he remains an activist at heart – maybe now just a judicial activist.

Moseneke repeatedly quoted leftist intellectual icon Frantz Fanon in his speech and openly veered towards the political when he shared his views about how political power is structured and, more importantly, how it should be reconfigured to move towards a more democratic dispensation.

Here are some key points from his address.

Property clause and expropriation

In 20 years, our courts have not resolved even one case of land expropriation under the property clause by government for a public purpose.

In the same amount of time, the courts have not once been called upon to give meaning to the property clause in the context of land expropriation or to decide on what a just and equitable compensation is.

One would have expected that a matter so pressing as land use, occupation or ownership would predominate the list of disputes in the post-conflict contestation. Sadly, urban homelessness persists and apartheid spatial patterns remain.

On land reform

Current statistics on land redistribution show very little movement away from apartheid patterns of the use and ownership of land. Only a small percentage of land restitution claims have been finalised. The bulk have yet to reach the courts.

Access to justice

Litigation in our country has become the preserve of those who wield public power and purse, and of those who can pay for it out of available resources.

The ever-bulging court roll at the Constitutional Court tends to be dominated by state litigants, followed by business enterprises and labour matters.

All three classes of litigants are funded by a collective purse.

A trickle of disputes is prosecuted by public interest law firms for vulnerable classes of citizens. Superior courts in our country are confronted by an avalanche of litigation from powerful interests in the land.


There is indeed force in the argument that mere race or gender may not be an accurate index of social exclusion and disadvantage.

We know that one of the trophies of the national democratic phase of the transition is that the African middle class has shot up from 1.8?million people to 5.7?million.

That may indeed to be an indicator of a more equal society, until one locates 5.7?million people within a population of 52?million. Then the black middle class peters out to a mere 10% of the population.

Workplace justice

Properly so, courts have refused to sacrifice workplace justice after claims or promises of economic growth that a so-called open labour market will bring to us. That may or may not be so, but that is not for judges to decide.

Review of presidential powers

I suggest that in the next two decades, we may have to revisit the dispersal of public power.

A careful examination of the powers of the national executive chapter in the Constitution displays a remarkable concentration of the president’s powers of appointment.

The vast powers of the appointment of the national executive bring to the fore the debate about whether the democratic project will best be served by a powerful central executive authority. This uncanny concentration of power is a matter that we may ignore, but only at our peril.


Courts are being used to settle political scores: we need to rethink our democratic processes in a manner that permits peaceable conflict mediation.

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