Book Extract | It must be the law that regulates relationships in society, not the wishes of the powerful

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All Rise: A Judicial Memoir by Justice Dikgang Moseneke


Book: All Rise: A Judicial Memoir

Author: Dikgang Moseneke

Publisher: Pan Macmillan 

This is an extract from All rise: A judicial memoir by Dikgang Moseneke, from around the time Zuma was elected.

Just about the time Jacob Zuma was elected president of the African National Congress I celebrated my 60th birthday – I was born on December 20 – with family and a select group of friends.

In fact it was a joint birthday party, shared with Peter Vundla, whose birthday was close to mine.

I have recounted the celebratory event in My Own Liberator but it bears repeating here because of its relevance.

Peter and I both made speeches. In mine I chose to walk down memory lane up to the point I became a judge. I said I was privileged to be a judge. It was a job I had thought hard about and chose carefully, understanding that I would perform the judicial duties to the end of my working life.

Then there came the judicial mantra: ‘In my calling it is not what the ruling party wants; it is not what the delegates want; it is what is good for our people.’

I will explain the underlying ethos of what I said in a moment, but it must wait until I tell you the aftermath of this statement. The Sunday Times carried my remarks prominently the following day.

I pause to observe that our Constitution did not provide for the ‘recall’ of a sitting president by his own political party, or anyone for that matter. There are constitutional provisions for ending the term of a president prematurely. There are two obvious options

Pius Langa called me, asking if I would be available for a meeting with Kgalema Motlanthe, then the newly elected deputy president of the ANC, and Mathews Phosa, then treasurer-general of the ANC, at the court on the Monday morning.

The four of us knew each other quite well, so first many pleasantries were exchanged. They then pointed to the concern of some members of the ruling party who understood my statement as an interference in politics when, as a judge, I should not do so; my reference to what was good for our people, it was felt, insinuated that the ruling party did not do what was good for our people, when they were the representatives of the people.

I acknowledged that it would be unfortunate if members of the ruling elite understood me that way. I conceded that it might have been less of an issue if I had not talked about delegates at a time when the contest for power in Polokwane was so real and heated.

But I made my position clear that as a judge I was duty-bound to do what the law demanded of me and not what the ruling elite and its supporters might demand.

Read: Dikgang Moseneke: 'There were plans to weaken the judiciary'

Impartiality is a central pillar of the judicial role. Judges have a duty to mediate the vertical power relations between citizens and their government or, to use different terminology, between the ruler and his or her subjects.

If judges were to uphold only the wish of the ruler, whatever the law stipulated, the weaker subjects are damned. They are likely to get the worst end all the time.

It must be the law that regulates relationships in society and not the wishes of the powerful. I was doing no more than reciting a judicial chant which I hope young lawyers, judges and other wielders of public power will add to their toolkit of things necessary to advance a just society.

Public good and justice must precede the private or political preferences of people who hold public power. As they jostle for public power, the law must constrain their conduct.

The chief justice, our two esteemed guests and I drafted a short public statement as an outcome of the meeting. It was meant to calm the waters within certain quarters of the ruling party. But in truth the criticism by some that judges interfered in political matters kept on rearing its head.

This, as you would imagine, was a handy criticism in the arsenal of political supporters given the many legal hostilities that were to lie ahead. And they were indeed many.

Mr Pikoli had in the interim been suspended by Mr Mbeki on an unrelated matter, and Mr Mokotedi Joseph Mpshe, the acting national director of public prosecutions, decided on December 27 2007 once again to indict Mr Zuma.

That decision was followed by an indictment of 87 pages with 18 main counts of racketeering, corruption, money laundering, tax evasion and fraud. It appeared that many of the allegations were based on the same subject matter that was dealt with in the Shaik trial.

Dikgang Moseneke serves as the arbitrator in a dispute between the Gauteng provincial government and families of the victims affected by the death and torture of mental health-care users of Life Esidimeni, 2018. Picture: Moseneke private collection

The national director of public prosecutions thought differently, however. He insisted that the facts and circumstances differed materially because the evidence against Mr Zuma had grown and the legal impediments to charging him had been reduced.

On December 28 2007, only days after his victory at Polokwane, the National Prosecuting Authority served Mr Zuma with a charge sheet, ordering him to stand trial in the high court on various counts of racketeering, money laundering, corruption and fraud. The case went to trial on August 4 2008 before Judge Chris Nicholson sitting in Pietermaritzburg.

Before the hearing, on June 23 Mr Zuma made an application asking the court to make an order declaring that both the Pikoli and the Mpshe decisions to prosecute him were invalid in law and should be set aside.

Judge Nicholson held for Mr Zuma. He slated President Mbeki and his cabinet for meddling in Mr Zuma’s prosecution and held that three consecutive national directors of public prosecutions acted unlawfully in relation to charges against Mr Zuma.

Nicholson ruled that Zuma should have been given the opportunity to make representations to acting National Prosecuting Authority boss Advocate Mokotedi Mpshe before being recharged.

Read: I stand by my judgement - Judge who threw out Zuma corruption case

Nicholson J set aside the decision of the national director of public prosecutions to prosecute Mr Zuma.

On Saturday, September 20 2008, ANC secretary-general Gwede Mantashe announced that the party had decided to recall Thabo Mbeki from his position as president.

I pause to observe that our Constitution did not provide for the ‘recall’ of a sitting president by his own political party, or anyone for that matter. There are constitutional provisions for ending the term of a president prematurely. There are two obvious options.

One is to move a motion of no confidence against the president in the National Assembly. In that case the members of the majority party would have had to vote against its own president.

Impartiality is a central pillar of the judicial role. Judges have a duty to mediate the vertical power relations between citizens and their government or, to use different terminology, between the ruler and his or her subjects

The second option is for the president to be removed, or impeached, on certain grounds by a two-thirds majority vote in the National Assembly.

Mbeki chose to resign. He chose the route of least resistance, one that spared his political home the anguish of an open tear. Kgalema Motlanthe was sworn in as president on September 25 2008, to serve, or so it seemed, as a caretaker president until after the April 2009 national election.

The order of Nicholson J that set aside the decision to charge Mr Zuma was taken on appeal to the Supreme Court of Appeal by the national director of public prosecutions.

Former President Thabo Mbeki sought leave to intervene in the appeal on the ground that he had an interest in the appeal because many findings of the court below impinged on him negatively and he wished to have the record set straight.

The Supreme Court of Appeal declined to grant Mr Mbeki leave to intervene on the narrow premise that while it understood his anxiety to clear his name, his grounds for intervention did not go to the heart of the issues the appeal court had to decide.

In January 2009, the Supreme Court of Appeal delivered a unanimous judgment that set aside the judgment of Judge Nicholson in rather harsh terms. The judgment commended Nicholson for asserting the principle of the judiciary’s independence but added that he then ‘took his eye off the ball.

All rise: A judicial memoir by Dikgang Moseneke is available this month and retails at about R330


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