Strong words from Mogoeng

2011-12-28 00:00

CHIEF Justice Mogoeng Mogoeng yesterday decried “a new and unfortunate trend” in the judiciary, whereby some retired judges broke ranks and viciously criticised their colleagues on the bench.

In a eulogy delivered at the funeral of Land Claims Court judge president Fikile Bam, the chief justice also called for the African traditional justice system to be embraced rather than “relegated to a historical footnote”.

Bam, affectionately known as Bra Fiks, was laid to rest in his village near Tsolo in the Eastern Cape, in a special funeral attended by leading members of the country’s judiciary and politics.

The 74-year-old jurist and former Robben Island prisoner died in Johannesburg this month after a long battle with cancer.

Hundreds of mourners gathered at the Bam farm at Goqwana village for the special official funeral (category 2), an honour the president bestows on distinguished citizens.

While President Jacob Zuma did not attend, former president Thabo Mbeki and his wife, Zanele, as well as Graca Machel, wife of former president Nelson Mandela, were present.

Other mourners were Justice Minister Jeff Radebe, Public Protector Thuli Madonsela, former Safety and Security Minister Charles Nqakula, Defence Minister Lindiwe Sisulu, Eastern Cape Premier Noxolo Kievet, UDM leader Bantu Holomisa, Cope leader Mosiuoa Lekota and Cape Town archbishop Thabo Makgoba

The judiciary was represented by Mogoeng, Supreme Court of Appeal president Lex Mpati, former chief justice Pius Langa, KZN Judge President Chiman Patel and one of his predecessors, Vuka Tshabalala, as well as other judges president.

In his wide-ranging speech, Justice Mogoeng paid tribute to Judge Bam’s role in transforming the judiciary and pledged that the bench would continue with this mission.

Judge Bam had given meaning to the concept of an “activist judge”, by ensuring the Land Claims Court was accessible to the poorest of the poor through restorative justice and by changing the rules of court, he said.

Criticising those who looked to the developed world for jurisprudence, Justice Mogoeng added: “Our preoccupation should not be with catching up with legal developments and practices in the Western world.

“It should rather be about recognising that Africa is a poor continent, with special needs that require special and extraordinary solutions — particularly for the poor.”

Answering his critics, who believe the Constitutional Court will be more executive-minded under his watch, the chief justice emphasised the judiciary’s independence.

The judiciary was not one that pursued “popularity or approval or is beholden and partial to, or afraid of anybody — be it the executive, the legislature, the opposition, the rich and powerful, the lobby groups or the media”.

Nor would it allow itself to be led by public opinion, otherwise it would be betraying its constitutional mandate, he said.

While acknowledging there was room for constructive and collegial criticism, Justice Mogoeng expressed unhappiness with the way some judges and magistrates had criticised their colleagues in public.

“We do get concerned, though, when it begins to look like the only thing some of them ever say in public is to criticise their serving colleagues and do so viciously without offering alternative solutions to perceived wrongs.

“This new and unfortunate trend of a few serving and retired colleagues being quick to go public about whatever concerns they may have about the system or their colleagues cries out for a more careful reflection and introspection.”

Earlier Mda Mda, a Xhosa historian and, like Bam, a member of the Unity Movement, told mourners that Bra Fiks had not compromised his ideals.

“Fikile had leadership qualities that many need in South Africa today, including government.

“He was not about himself, but he was an achiever on merit.”

Download the speech as a Word Doc - Click Here.

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