Episode 25 - Dikgang Moseneke: From Revolution to Justice

Today on the African Renaissance Podcast we mark 30 years of South Africa’s Democratic Constitution & Elections with the revolutionary, Robben Islander, Pan-Africanist and former deputy Chief Justice, Dikgang Moseneke.

Transcript

SPEAKER_02 0:00

I want to start with a big thank you for creating the time for us on the African Renaissance podcast. And I I I had the pleasure, charge, to read my own liberator, biographical, and spends a lot of time with your revolutionary journey. A person that wanted to overthrow the regime at 15 years. And then all rise. Very important. And I read all rise last night, so you know, and I couldn't. I think it's important for all of us to go through this. But how does a revolutionary, with the types of political and ideological persuasions that informed already at 15 years, your clash with the fourth most powerful military in the world, military regime in the world, that would condemn you to the Robin Island dark cells for 10 of your precious youth years. How does a person with that passion, who has gone through torture, who has seen the enemy in physical confrontation, one-on-one? And and who belongs, they say it's a radical part of the Pan-Africanist tradition, a Pan-African Congress member.

SPEAKER_00 1:54

Yes.

SPEAKER_02 1:55

How does a revolutionary become a judge, this neutral entity that can listen to every single different idea, even if it doesn't have merit? Are you able to take us through the actual ethos in those two wells that bring them together?

SPEAKER_00 2:22

Well, thank you for the question. And it's a privilege to be here. And it's a kind of discussion that we should continue to have. The easy part is the first part. I was born a slave, I was natured as a pan-Africanist. As a worldview, I'm not talking about party political, you know, uh, I'm talking about as a worldview. I started reading Du Bois, I started reading Padmo when I was young at school. I started understanding the variety of the Pan-African Congress from nine Congress from 1900 through right through to 1958. So as a young person, I always understood I'm a slave. I am oppressed by a global system of colonialism and imperialism, and my duty is to overthrow it so that in my adult years I don't continue to be a slave. So that formulation was uncomplicated. And I read Robert Mangalis Sosobukwe, who says your primary task is to rally and unite African people for the total overthrow of white domination. Uncomplicated. And thereafter to establish an Africanist socialist democracy. So those parameters were attractive. And they remain attractive, which basically is it remains and continues to be our task to overthrow white domination, and that we do by rallying the people and uniting African people. And we can debate about the definition of African in a moment. So as a child, soldier, the definition was uncomplicated. And after overthrow, the vision was to establish an Africanist socialist democracy. So those paths are quite clear. It has to be Africanist in the sense that it has to put in the center the primary interests of African people. So to be an Africanist, to be a socialist democracy, we mean to share. We mean to create an alternative to an exploitative capitalist society. And it will have to be a democracy where the people will always have a vital say about how we reorganize our ruptured lives after colonial incursion. And remember, it was not difficult because I was taught, and I hope you are still taught, from 1652 right up to 1910, no indigenous African people were ever taken to slavery. Because our people fought back. Whether you're talking Kosis Kukune, or you're talking, or all of our leaders at the time, remember fought back. It took 200 years to move from the Cape to the Care River and push African people beyond the Care River. So I understood there was a long struggle, and therefore there was historical, there was a historical trajectory from 1652 through to 1963 when I was arrested, and I was a young activist. And revolutionary fundamentally means taking a society from one backwardness point and moving it to a progressive point. And to do so with a near total change of the features of the one backward society, to one thus progressive. And therefore, as a young person, it was not difficult at all. Did it become difficult later, you know, with all the black consciousness movement people who came in, with all the people who were in the youth ASC Youth League before then, including O. Artambo, including Mangalisu Sobuko, including, you know, all of them had visualized this. That differences of history that are not significant, and they restate it in different ways. Whether you read the Freedom Charter or you can read the African East Manifesto, you're going to find the key trend is to liberate our people, to create a democracy where all of them would participate. In other words, to transfer political power to our people, and then to create a society that is just, humanist, fair. And that's why that speaks to democracy, that speaks to its socialist character, and that speaks to its Africanist character. In other words, putting our interests as primary in the way we organize society.

SPEAKER_02 8:05

To embrace that, Jane, it seems to me fundamentally informed by, you know, radical militant activism. And now I know you battled against very big guns, Matiba, Arthur Chuskelson, President Mbeki, who kept saying to you, dear come to the bench. Your people need you. Yes. What constitutes the balancing of those worlds? Surely the democratic society is there. And you gotta sit in that bench and wait for applications for it for matters. You are sort of in it but not in it. You wanna take the mantle, it seems to me you are a revolutionary. You're not a careerist. You want to take the mantle and go resolve this specific problem. You see it, you struggled, you workshopped it, you campaigned about it, you dreamed about it.

SPEAKER_00 9:20

You see, our transition was complex. We had not achieved total emancipation in the sense of military overwhelming our enemy militarily. And the big debate and complex debate, which often blow over the head of the young revolutionaries of today, was whether or not we seize political power and work for the rest to be added unto us. Remember it's Kamen Kuruma who in 1958 said, Go and seek ye the political kingdom, and the rest will be added unto you. Yes. That's a two-staged approach to liberation. It's an understanding that you must always be better off by seizing political power and seizing, I mean, uh seeking to do with it your ultimate bidding, which is to reconstruct society. So there was no way in 1994 where it would have been possible at all. And some people argued, for instance, some elements within MK and in APLA argued that we should continue fighting. And I'm very well aware of that because I was I was very active in the Pan-Africanist Congress of Asania at the time. And the other debate was: shall we find ways for a transition? But the OAU and the Liberation Committee all favored a transition. They just had the burden of carrying us, our forces and frontier wars that were at the time. So all of them supported the idea of a transition. So what remains is what kind of transition comes out of it. For me, the bottom line, total bottom line, there must be total transfer of political power. And that you'll do by having a one person, one vote. So the starting point in the negotiations must be, and some people are dithering around about qualified franchise and so on. And I remember saying quite clearly to President Becky, to President Mandela, to there's no way you can sell to our people anything short of every one of us casting a vote to throw out the regime. And that the numbers were simple. So let's leave the detail out. Once I was convinced that there was an opportunity to seize political power, I joined that process. I went to go and help write the interim constitution. I came in to run the elections. Can you see the trajectory? And I was there and saw the swearing in of a new government. Was it the total package that I would have settled for? No. But was it an important two-stage transition in our revolutionary lives? Yes. So it'd be totally silly to suggest that nothing happened in 1994. You've been a historical, you've been intentionally obtuse about the opportunity that our people had to become and create a democratic government. Which reminds me of something that Mr. Mandela said, which made sense to me. As you know, I had many sessions with him. I was one of his intellectual sparring partners every time. He always ordered me to sit here, come and listen to me. You know, until he passed on, as you know, he said, must look after me. I wanted to be my executor in my estate. That was the level of trust that he had placed in me. We differed on many things, and I said in the book, where he tells about the story about the willow tree and the pine tree. And saying some revolutionaries are the pine tree. When the storm comes, the storm takes it down. If you're a revolutionary, it must be like a willow tree and go and seek the water, go down, and avoid the storm when it comes. In that way, your revolution would continue. So it was important for us to understand. I made the decision, I'm not going to go to parliament, but I want to see my people democratic and ruling. And I'm going to remain a lawyer and make a contribution on the legal end. I have the skills. And by that point, I'd proven to be a reasonably good lawyer. I'm the guy who went to Comrade Zondo's sales when we were sentenced to death by Josh Leon. Happens to be Tony Leon's father. And Comrade Clanke and I were struggling to save his life. You were sentenced to death. And I used to go there to go and see them and to do petitions to make pleas for them to be, you know, not to be executed. Of course, they executed all of them. The regime of the town. So it was near natural that I would want to support a document that would at the bare minimum transfer political power to the African majority. And that would be a significant revolutionary milestone. And you may ask me immediately, but did you deliver everything that your revolutionary ideals required? Answer is no. And I write about it. Going to look at the last chapter of my own liberator. But the truth is that we could not, we could not at the time install equality and tools of equality in ways that we were taught all our revolutionary lives. And there are various statements over the years that tended to define our revolution. And it's clear that we're not going to achieve all of them, but there are certain things that we can achieve. A democratic government with institutions to police the exercise of that power. And to make sure that the people have the final say through a parliament of the people that will make the laws. And we would make sure that there are regular elections, would limit the term of those who are in power in ways that will give us rejuvenation, renewal, and to avoid abuse of power. So the objectives were quite clear. A people's democracy must be created. And we can have a debate about how we fared from 1994 to now. But it was a vital, it was a vital revolutionary moment to transfer power from a settler racist minority to a majority, to an African majority in particular, to a black majority in particular. And that happened. That's what 1994 created. I'll come back to and I want you, I know you want me to go and tell you how I became a judge, and I'm going to know how you became it, but how do you I'll return to this question, Judge?

SPEAKER_02 18:17

Maybe right there. There are extremely prominent people in society today, in the legal fraternity, some of which are veterans of our struggle, some of which you were within the island. Who would have us believe that you took a wrong decision to make our constitution or our democracy a constitutional democracy as opposed to a parliamentary democracy? And I want to read a part here in your book. Yes. Just because I think what you do in here is lovely from that point of view. This contestation about in a constitutional democracy are elected members or representatives ruling? Or we are ruled by a constitution and ultimately some 12 people who sit next to Hilbro. I mean, these are strong, strong fundamental campaigns today.

SPEAKER_00 19:36

That we should let's deal, let's deal with that.

SPEAKER_02 19:38

But I want to say some read first, and then we can we can about what you say about the courts. Yes. Courts enforced even patently unjust laws made by parliament. Their jurisprudence was inspired by positivism, a theory of law that teaches that law is valid because parliament says so, and it is always binding on the courts. Courts are obliged not to second guess or remake the law, but only to interpret and apply the law. In that way, apartheid judges, not like Pontus Pilate, the Roman governor of Judea, who was known for having presided over the trial and crucifixion of Jesus, washed their hands of the unfairness of the outcomes they ordered. In light of this phrase here, Judge. Are you able to give us a defense today against those who are calling for a parliamentary democracy?

SPEAKER_00 20:57

Yes, yes. Parliamentary democracy is actually unrevolutionary. It is retroaggressive. It seeks to place untremeled, complete power in the hands of the majority in Parliament. Without safeguards that would make democratic experience for the people truly progressive. Let me restate that. Parliamentary democracy is introduced in our country by colonial arrangements. It is what is observed in the United Kingdom and the externality to all the Colonies through it. If you secure a majority, your will will be done. If you made laws that people of African origin may not become voters, that law would stand. And that law may not be overturned at all. Why? Because Parliament says so. So in jurisprudence, in legal philosophy, that's called positivism. Once stated by Parliament, there can be no derogation. There can be no departure. There can be no except from that law. Remember in the olden days, Parliament ruled that women will earn always earn two-thirds of what men earned. That was law. Parliament ruled that there will be the death penalty. And there was no debate beyond that. Whatever other views might have been. And that executed how many of our comrades? Hundreds of them were killed by a regime that was resisting a demand for democratic change. So be careful what you're asking for. Be careful whether you want to place in the hands of a majority. If a majority can be able to can make a law that says two-thirds of the fiscus must be spent in the Western Cape, that is what it will be. There will be no room for review judicial or otherwise. And we lived through that system, we saw its oppressive outcomes, and there were deletarians. And we chose quite consciously that the people must remain and always make the law in parliament. But that law must have certain structures that does not allow the majority to go gung-ho against those who are not part of that majority. Tyranny. Tyranny of the majority is not, does not always translate to democracy. And this is something that we should repeat and remind ourselves and not be ahistorical about what parliamentary sovereignty means. In that system, judges would then do no more than rubber stamp, but the law does. All African males will carry passes. And if they don't have the passes on their person, they are liable to be thrown in jail without a warrant. That was the law. No, Robert Silkway will stay on Robin Island for as long as Parliament says so. And Parliament passed the law every year. Though he had finished his sentence to keep him on Robin Island. Okay. So tyranny could come through parliamentary arrangements which have no checks and balances in them. In that setting, you'll almost never have a motion of no confidence in any leader. Because the majority is there. Once the majority is there, that's the end of the debate. And there are no processes to check on them. Now let's go to that aside. Should judges create a judicial tyranny and says no. And I spent a lot of time to write about that. Only parliament makes law. Judges don't. Judges are called upon at the instance of a citizen or a body, whether or not the law violates fundamental rights and freedoms. Now, in modern societies, it's unthinkable that there would be no fundamental rights and freedoms. In a parliamentary sovereignty, you have no bill of rights, you know that. Because somebody has to test your right to freedom, to your right to whatever. And the courts have to test that, where the state has violated them. So when you call for parliamentary sovereignty, in effect, you're taking a bill of rights, a minimum rights that every citizen must be able to rely on, you throw them through the window.

SPEAKER_02 27:00

Are you able, Judge, maybe do that for us? Some of our audiences, I'd like on their behalf, to be as simplistic as possible. Why are the Bill of Rights this unquestionable regime of laws? Why should nobody, no matter how powerful, even if they've got 90% of the vote in the country that supports them, that they do not have the power to trample on those regimes of laws? Why did the liberation movement place so much significance on that set of so-called bill of rights?

SPEAKER_00 27:53

Let's start with the fundamental and the first of all rights, the right to dignity. Our experience and our historical experiences of people was that it our dignity was trashed. They thought we had none. And all behavior, all basically was targeted at the dignity of those that were oppressed. And today it's no news around the world. You can look at all the covenants around the world. The starting one is the right to dignity. We express in a variety of ways. It's not a neoliberal notion of the world. African people talk about Wu too. They talk about your presence, Sagbona, the importance of you as a person and your family and those things around you. We've observed that forever. They trashed our dignity, but we've always, as a people, have had something very central. I don't want to leave that in the hands of a parliament. We left it in the hands of 400 people in parliament, or two-thirds of them, or 51% of them, and they were trashed. Parliamentary sovereignty, you can trash those without recourse. So it's fundamental that in a democracy people's dignity should be in place. The right to equality. How could we suggest that parliament having sovereignty could make laws that treat people unequally? How could we say that it's progressive? But what is more, norms, forget about the West, norms, international norms, human rights law around the world will tell you that human beings are equal. And that's fundamental to our understanding of who we are, how society ought to be organized. Do you want to leave that to your parliament to change it? Do you want to do what we saw done in Israel the other day? Capital punishment meant only for Palestinians. Did you see that? Yes. Parliament can do that if it's untremelt. You get jingoism. Can you imagine a Trump with no limitations in what he can do with his majority in parliament? Sorry, guys. Don't take us there. It was revolutionary to say people elect you, you make the laws, as long as the laws don't trench these things that we consider all of us by agreement collectively to be fundamental to our humanity and our democratic experience and social justice. Those things ought to be written in there. Who wants to have an unfair trial? And may parliament make a law to say women, if raped, may not, they have no entitlement to wah, wah, wah, wah, wah. Particularly by their husbands. But by their husbands. And we were there before. Yes. Under apartheid, there was no notion of rape within marriage. In their parliament, that had to be amended. So sorry, guys. I mean, you know, countries make laws about reproductive rights of women and seek to dictate. So these are the minimum agreement by society that these things will not be violated. And somebody must police that. And the courts are usually called upon to police whether there's been violation or not. Because the executive and parliament cannot police that. And there are many things that courts can't do at all. Courts can't bring cases to themselves. They must be brought there by the executive, by the way. Courts cannot make laws, may only interpret them. Courts may not amend them, they may interpret them in ways that parliament may have to amend them if they violate fundamental rights. So you want to leave, I must leave my fate in the hands of a majority of a particular political party to decide on all aspects which are so fundamental as to be found in the Bill of Rights. No. So the progressive choice, the revolutionary choice, was you have a bill, and the bill must be justiciable. In other words, it must be open to testing. There's no way you could have a government that doesn't build toilets for children at schools. And say you can't test that in a court because parliament has said so. So we must be careful what we're asking for. And that is by no means progressive, not by any measure. If you don't like some of the judgments that come out of obviously that it's near natural, then you focus on how to improve your adjudication, how you improve the quality of your judges, how you do things that will actually strengthen the democratic practice. But if you take that away, you take freedom away. And I don't want to be ruled by men and women only. I want to be best ruled by laws. They're constant, they're predictable. You put forewarning of what the outcomes might be. And therefore, human beings, depending on who their leader is, where they are, and what they want to achieve, we might get a law that allows a death penalty only for Palestinians. No, no, no.

SPEAKER_02 34:10

Those who say these things sometimes refer to the constitution as un-African. You who you said in the drafting of the constitution, you were the chairperson of the IEC, which is a constitutional body, and you said in the Apex Court, and you are from the PAC. What do you say to this assertion that the laws you wrote collectively are un-African?

SPEAKER_00 34:47

Yeah, well, you diminish my role when you say I'm just from the PAC. I'm a leader of our people.

SPEAKER_02 34:53

Absolutely.

SPEAKER_00 34:54

And um political organizations are crucibles. Sometimes they fail, sometimes they succeed. So we should elevate it to ideas and our revolutionary ideas, okay? But if you mean by that that I'm a pan-Africanist, of course I am publicly pronounced, I am I believe in that Africa will rise and I think we will be better as a people. Now, let's talk about the charge that the constitution is un-African. I would want you to show it to me. You see, you see. Neoliberals have claimed just about creation of every entitlement that exists. Let's debunk that very quickly. I've talked about the right to dignity for a moment. I've talked for a moment about, let's talk about equality. In African societies, subject to the governance arrangement that there was, amongst the citizens themselves, there would have been no differentiation. There would be no difference. Nobody would have been more entitled to something on the other. And I speak subject to feudal arrangements and kingship, which should be criticized and which should not be accepted by any revolutionary. But think about the idea of the right to be heard. Can you imagine? You get called there, and you always have a right to be heard before pronouncements are made. In fact, I like some beautiful phrase in Sitsuana which says, when you're alone, of course you're going to win. So notions, notions of being head, sometimes pronounced as audi altarampartem, they're deeply embedded in the way we have lived, the way we have understood our roles. There's no way you call two people, young people fighting who are in a relationship, you sit here and say, What do you say? What do you say? But we're ready to attribute all those things to Western culture. Fundamental rights today are universal. They're to be found in every universal document that you like to look at. And these covenants, call them whatever you call them, but they've been adopted by the whole world in a variety of bodies. Socioeconomic rights have now become, you know, they're all adopted. And you can look, so so we are not doing the notion that this is a neoliberal statement of what people are entitled to is actually to diminish our own role, firstly in multilateral bodies, but secondly in our understanding of what is right and wrong as a people. Are there some rights that may be open to criticism? Of course there may be. But by and large, where we are now, the notion of a rights culture is one that has gone well beyond the narrow structures of the West, as some people say. You can take another option. Of course, you could go for a system that is rightless. You could. You could say this is where we're going to go. And we need to go and examine most of those societies and see how they have fared. You'll be surprised if you go to China, and I mean those examples are sometimes cited. There's a big thrust in socioeconomic movement forward. And I want to suggest that that is not inconsistent with the rights-based culture in which people can still have the main freedoms. I taught for a whole semester at Duke University. Half my class at LLM were from China, mainland China. They reject the notion that they are not a democratic country. They vote in ways which are different from them. They vote for representatives within the party in ways that are structured. But they go on to say that there's an amazing level of fairness in allocating public goods and social well-being. But think of a society where that disappears, oligarchs emerge, and they steal most of the national wealth. Something we've seen in a socialist country. So the presence of illegality, of gangsterism, of a collaboration between governments in power, that we need to have majority in parliament. And criminal networks in society is something that is engaging the world right now. I've just come back from a conference in Europe, where these trends are mushrooming around the world, where there's collaboration between legitimate elected parliaments and networks of wrongdoing in society. We should have governance bodies wide-eyed that seek to limit the exercise of power by men and women by virtue of the fact that they've been elected. They still have to comply with the law. And somebody must make sure that they do. Even they who have been elected must be called out. Which is part of our problem, part of our constitution, covenantly. Is that the governance bodies themselves have been infiltrated by impropriety, illegality, and misgovernance, which which threaten the very ideals that the constitution had held for.

SPEAKER_02 41:44

I want to take you, Jad, back to the island. And you correctly stated the the rule here is you were leaders of our people. You enjoyed the confidence, the trust in your bravery, in your sacrifice. You would have faced whatever many dangers of loss of life. Your families were put into considerable stress. You were in the struggle and you came up with these ideals you are explaining. We all know the incomplete, but there's a document that says, in order to arrive there, here are the ideals. You have to build an equal society. Sure. Now, Judge, how is it that people from the same background, the same island, would now tell us your constitutional achievement was a sellout? Why would they suggest?

SPEAKER_00 42:59

I think it's it's a political expediency. I think there's no serious engagement with those historical events. I don't think they understand the trajectory between a revolutionary struggle to that point, transferring power to the people, and all of these things say them in platforms, in parliaments, which were created by that transition. Okay? And and and there can't be any fighting with the idea that the power had to be transferred to the people. And once that's been transferred, we had to debate in what way do we restrict that power. We all have histories. We've been in exile. We've seen how political power sometimes, even out of government, is used or misused. Restraint on the exercise of power is something that is extremely. I don't buy the notion that people want untremeled power. What for? A parliament that has no limits. What for? To his benefit, to what gain. So understanding, after all the experience we have had and fought through a tough battle and came out on the other side, there was no way I would support an arrangement which gave unlimited power to anybody. And that is why we said, Mr. President, you'll have two terms. Thank you very much. Not more. Okay? Whether you have a majority or not in parliament. No, if you make laws. You can put it here, Jack. Oh yeah, on your side, yes. If you make laws, you can't make laws that differentiate between men and women that violate gender equality, that violate other fundamental equalities. We don't want a parliament that's going to tell people how to pray or not to pray, how to write to religious expression, to cultural expression. Those things are important. And you don't leave them in the hands of a few people called members of parliament. So parliamentary sovereignty is such a mistake. It's such a diversion. What we should be debating is what have we done with the political power that we acquired in 1994? There is a real debate that must be had. And and and and whether we have I decided I agreed to become a judge in the end. I invite you to go and look at the judgments I've written. Yes. On any of the topics, whether it's on gender and equality and fairness and respect of women. Restitution. Restitution. You can go and look at those judgments. You've got to look at land questions. You can look at those things are there. You've got to look at all the judgments around so-called affirmative action cases and who wrote them and what sits in there. Affirming our entitlement to equalize society. That's really what they are about. Because the Constitution requires us to achieve equality. It is careful words. It doesn't pronounce that we are equal. The achievement of equality, and it's a process which we ought to deploy all the political power we have, collectively and jointly, within the limits of the law, to create an equal and just society. To say I want a blank check. And it's not the leaders you are calling for blank checks. I wouldn't give them a blank check on my life. I wouldn't give them a blank check on my life, having seen what they have done in the past, even with the restrictions that we have. Think about procurement laws. We're very modern procurement laws, and people still breach them. Courts have to be called in to say, has procurement been laws been followed here? Look how often. And think about our country without an effective and working judiciary. So I chose to be one of those who would police the constitution and who would seek to achieve those ideals. Those ideals that we set out in our revolutionary ideals, those are the ones. And to try and keep the state in particular, the government, executive government, to the job at hand that has to be done. Think about a wild tender process without any adjudication and monitoring. Where would we be? So it's silly to suggest uncontrolled, untremeled, open-ended power in the hands of a parliament. You're asking for trouble.

SPEAKER_02 48:25

In the book, Judge, there's an interesting anecdote. You have called through uh, I think uh Justice Norbo. I may be mistaken between uh Justice Langa and Noble, but there's a conference, President Zuma is the new president. Yes. And you have a private moment where he has a statement about the judges, which at the time already terrified this explanation, if just given. He says him and Gaddafi, you know, we're city, and he was saying we can rule Africa. And he said, no, but in South Africa I can't do it because of those people called judges. I'm raising this um anecdote about 30 years of democracy, 30 years of uh constitutional democracy. Isn't it that this question of the independence of the courts constantly comes under tremendous attack, particularly from powerful individuals like the head of state?

SPEAKER_00 49:46

Yes.

SPEAKER_02 49:48

Again, I want to ask, and maybe in a much more complicated way than the Gaddafi example, God forbid we don't end up like leading. But independence of the courts vis-a-vis capital now. Because people, you know, say politicians are representing the people, the people who are really not checked in terms of their power, are the capitalists, are the owners of the means of production. No one is holding them accountable. So there's a group of people who sit in Stellenbosch who really run the country. And the judges, because of property law, because of the material conditions on the ground, even those people are not held accountable. Are you able to talk to us about even in an instance of the power of capital, the courts have independence?

SPEAKER_00 50:50

Oh yeah, uh I I understand the analysis and capitalist hegemony in society. I'm more than a judge, remember. I read Des Capital when I was in my teens on Robin Ireland, okay, and Adam Smith. Um and um there's an opportunity to learn a lot about legal theory and and ideology. And those things I learned together with President Zuma, who I lived with for ten years on Roman Island. The one thing that bind us all together was to create a just and equal society for our people, to be free from all of those discriminations of race, of gender, of origin, of all of that, and we'll find ways and means of ensuring that society observes those things. When you want to call for a soccer match without a referee, you're welcome. At least an example I should think of a rugby match, that's even more dangerous without a referee. Okay the referee must remain faithful to the rules. The players hopefully must, and therefore you don't want to blow often. If they act lawfully, then we don't need for you to blow the whistle, etc. If you want to beat up the referee, of course the match will naturally end with red cards and with confusion and with so society never goes on autopilot. I'll come the capital issue in a moment. Society needs to be regulated, and that's why there is a parliament that makes laws, that seeks to tell us, hopefully, benignly, hopefully within a democratic ethos, hopefully within an ethos to try and create an equal society. But there should be people who are elected to represent the people who would make laws that you don't show that. Your conduct isn't lawful. Somebody has to blow the whistle. So the discussion, the little anecdote with President Zuma, he was really, he was sitting with me in a holding room. And was showing his hand and saying, Gaddafi, you know, told him we can run Africa, and he said, hey, hey, hey. And he was talking to me, really, because I was in the forefront of the notion that we must have judicial supervision to protect our people. It's not about the power that judges have, it's about whether it is necessary to regulate power when it goes out of end, when it becomes inconsistent with the norm, which Parliament has set. When the constitution was passed by Parliament, a constituent assembly. So when he decried the fact that the judge, you can't do anything here because the judges are all over you, it's a popular, populist political thing that's being said. And I've often said with a smile those who say that often, it's amazing how often do they come to the courts. It's amazing how often do they cry foul and come and bring applications and require, because it is the nature of the beast. It's like plain soccer, you need a referee. You cannot, you cannot arrange a society in a democracy without. We can debate the extent of the judicial review powers of judges, but somebody must say that tender is lawful or not. Somebody must say this law treats women fairly or not. Somebody must say the state is executing its duty to provide water sanitation for children as schools. So it's inevitable, it's built, it's hardwired in how society ought to work. If you couldn't look at some of the things we have written, people like me, with that revolutionary background, was to emphasize that there are lines in separation of powers. And those lines ought not to be breached lightly. Judges should not incur into the terrain of parliament lightly. Parliament still should not be doing that in the judicial space and therefore in the executive space. But where complaints are raised and the constitution provides the power of scrutiny, the courts must certainly do that. They cannot stand back. Think about uh 30 years without the judiciary. Think about that. It's like a source says, so can I met without a referee? Okay, it would have been completely chaotic. So it is a nice complaint. Some talk about judiocracy, some I understand that. And judges themselves are very conscious not to want to but think about political parties fighting. Where do you think they run to? Etch it applications to courts, wake up judges to stop conferences. You know how often even all of those so-called revolutionary or the left run to course in or think about workers. We're talking about politics all the time. Without the labor relations act without the relief and the remedies that might be given there. Power relations, which are purely economic, are what I talk about and write about in the last book. I don't think we did enough to think through how to equalize society. And we left society economically and socially unequal. And that is the task of the new of the government that we have. It has even lost power and majority before it tackled those issues that were so fundamental. Once you have political power, you've got to move with full speed to deal with the inequalities that bothers your society. It didn't happen. 30 years later, it's political power that is splintered, that is split all over the show. So that mission may in some senses get compromised in that way. Capital has a lot of influence. Before the courts, frankly, it means that they can be able to come and argue their cases the way they can. But I don't think any judge sits there and say, this is a case on Stellenbosch, therefore, I don't think they do that. I don't think we do that. I never did that. I don't think judges actually do that. That they would have impact and influence on the political elite is obvious. Okay. And it's something that the judiciary per se cannot do anything about. That they would have influenced, and that is true of all. I mean, I've seen analysis of the wars that America initiates. Are very closely associated with the industrial, you know, war corporate military complex in the US. Supposed to create gazillion jobs, it's supposed to create big revenues, and they sell these arms to everybody who's fighting, including all those Gaul states and all buy arms from that American military complex. It's a very profitable complex. You can see the hand of capital there moving society and shifting around and moving and undermining multilateral arrangements around the world. In our country, it would be a surprise if big capital did not have an influence on how government works and performs its functions. But to wrap it up as total control of capital is to be a bit lazy intellectually and in a revolutionary sense. We should engage our people to understand the power arrangements within our society and from there to persuade them to exercise their vote in ways that will allow us to continue with that trajectory of liberation, which is to find ways to equalize our society in a humane, respectful, and democratic setting. That's the way we should go to. And that's what our revolution was about. That's where I started, and that's where I might end. We do still have at least 10 minutes.

SPEAKER_02 1:00:57

I want to ask you reflect in the book about the state of the judiciary, and you express a lot of worry on the magistracy. And there's been suggestions, Judge, on a unified court system. Sure. I mean, I I got some education when I was reading about the Supreme Court and the Constitutional Court at the contest in the beginning. Sure. Such that at the inauguration of President Bake in 1999, both judges were administering the oath. But isn't it that this system remains, at least at that level, the cool face of the justice system? Are these magistrates often overwhelmed with the case work which you put out? Is the resolution of the improvement not just of the quality of judgments, working conditions, and is this proposed solution about unified, you know, judicial system where you don't have the magistracy there and the high courts and uh I don't know what's the other part called, but this division. Sure. Is it one of the ways you could resolve the problems uh associated which you identify with the magistracy? If not, what are your other ideas about to remedy service delivery at that level? Sure.

SPEAKER_00 1:02:40

The delivery of justice is a big issue. I write about it there, and it remains that. In 1994, there were only about 200 judges in the whole country. They were all white males, and there was one white female. There was sprinkling of black judges in the homelands. The Townscape, Botswana Vender, there might have been. But that was an outcome of the abnormality of the time. But in essence, these judges were meant to minister the needs of capital and white population. So when there were big suits, when they were claiming money back, when they're suing you for big, the courts were there to be able to serve those needs, and they did serve those needs principally. If you remember, most of the cases between black and black people were in black courts, in the commissioner's court, in the so when we get there, 1994, the judiciary now has to serve 50 million people, the whole. Like all other offerings, public offerings and public services. We need something like between, I think, 5,000 to 10,000 judges at the high court level. I've just done a study for the state in which I produced a report to show them that we need to employ. Gauteng has used the same number of judges for the last 30 years almost. The slight increase. There's no relationship between the case flow, the case increase, the population increase, the increase in economic activity, the increase in disputes, and therefore, you know, need for outcomes. This means it's a big disparity. The graph moves like that. It never meets. So you you have as for the magistrates, they carry the brunt. 80% of the judicial work happens there. And so we've never resourced it properly and fully. And aside from ideological questions, you just need more magistrates. Magistrates, crypto, is we want to be judges. And there are systems in the world where you have judges here, judges here, judge. It depends on where you see there's a judge, but they're judges all the way. And that system is more logical, it's more synchronized, and it affords more respect to everybody.

SPEAKER_02 1:05:38

Yes.

SPEAKER_00 1:05:40

Some of the argument against this is that the magistrates will devalue judgeship. But it's a perceptual thing, and I don't think it has got merit in it. And the second thing is that statistically there's far more. Charges of misconduct at magistracy level than they would be at higher judiciary. Misconduct on the part of the magistrates. On the part of the magistrates. They get charged for a variety of things. Now we're seeing it emerging amongst judges. We had four cases, prominent cases out there, which are really deeply worrying. Because also of the heft and the complexity of the matters that judges have to do, they should be squeaky clean. They should really, really be top-end, squeaky clean, dedicated and committed to ethics and to absolute impartiality. Now, some people fear that the numbers and everything would likely go judge, judge, judge. Like the lady who was in court yesterday is a magistrate. But she could easily say she did the role of a judge. District court judge and regional court judge. They have it like that, state judge, and in other countries, it did like that. So I believe in integration. I believe in higher training and quality of magistrates. I believe they should be called judges. And I did a lot to improve when I was on the remuneration commission, the remuneration salaries to close the gap between magistrates and judges. So that's approach. If 80% of them are providing the justice service delivery, 80% of the resources should go there to support the magistracy. And we have to go and build courts around the country. There are not even enough courts where people live. We have not spent enough time to go and build to get to where the people are and to train magistrates and prosecutors and to make sure that they serve our people the way they do. If somebody has beaten you up in your home, you want to go to court to find a magistrate, you want to get the case to be done. And many people, many of our people sit at that end of the justice system. Of course, all of us look at the top end, but actually it really meets the tire, the time act at the magistrate's level. And we should do much, much more to offer proper services to our people. And two, this the delay, because of what I told you about the judges and their numbers, the court rules are clogged. The next cases will be heard three years from now on. If you're convicted now, there's an appeal is likely going to be completed in three years, three to four years, because otherwise you have to jump the queue. The pipeline of cases is high. South Africans use courts, and those who don't like courts and judges are not going to be surprised that they actually do need them. Because society tends to be conflictual. Aside from ideological things and so on, there are disputes, and disputes are to be resolved.

SPEAKER_02 1:09:15

I want to put you in a most uncomfortable position as a final you could have been, at least in the minds of many of the leadership of a generation just before you. He's like, hey, come. If you contested here, we wouldn't win against our people know your contribution, our people look up to you as a leader. So with respect, Judge, I want to put you, and you can obviously call me to order. No, no. Just be mindful, I'm unemployed. I would not be able to pay any band digges. If you were the president and you had the situation of a police commissioner in Corners who blows the whistle about a disbandment by the Minister of Police of a unit that is about to make arrests on suspected criminals on the 31st of December.

SPEAKER_00 1:11:28

Let's take two steps back. We don't have a culture of leaders falling on their sword. Justice Berenge should have resigned ages ago rather than put us through this horror. Okay. Can deal with the sexual ages, he's a leader in the judiciary. Descends on a young secretary, single mother, and she appears to be swaying along, but she's vulnerable. Her job potentially could be gone. So let's go back to what we're talking about. We're saying we ought to have a culture where people fell on their sword. We don't have it. We ought to have a culture where it is a serious allegation against somebody. The coped out could be, I'm not guilty until so proven. That is fine. And citizens can go that route. If you're a leader of society, you have a higher moral calling and obligation. Look, you have a pastor in a church, and the allegation comes that he has raped one of the young ladies in the church. Please help me. Do you think the pastor should come and preach the next weekend? The next weekend? Huh? The pastor must give you a break to work through the allegation. They must give you a break to investigate it and have an outcome. And if the smart pastor, he would resign the job if he thought there was any merit in it. Okay. And you see this in many other societies where people fall on their sword. We rarely see it in Africa. And the notion that I'm not guilty until so proven, it's a nicety, by the way, from the constitution, which is much maligned. And the notion is that people ought not to be condemned until they are heard. So allegations ought not to be enough. So it's a sound principle. But if you are a leader in a revolution, in a revolution, and you're going to make many decisions about people for people, and you're tainted for now, you step back on your own, you step back. And that should be a very strong culture in political movements, in civic movements, in government. Okay? And just the other day in the UK, there was some MP who was late three, four times at a parliamentary committee. And he resigned. He said, three times I've been here, you have told me not to be late to go on time. And he thought it was sufficient. Undermining of his role as an MP sent by the people to do work and has been late at parliamentary committees three times. He fell on his sword. Fell on his sword. And there's something that I would urge, and from that point of view, I don't even look at the identity of the person involved. I'm saying we go through these things. Presidents go through these things. Allegations against presidents in this country. They walk through the storm. And we get used to it and we forget about it. And we've done it so often. It's one of the weaknesses of our system, so often. And many of my colleagues who are judges, you know how long we have to wait. As they fight back and they push back, and they and society is the loser. Nice drama, nice podcasts, but in essence, we need institutions for the people. That's why courts are there. They're not for these big people who ultimately get thrown out or something like that. It's for people to get service and to have justice served. And so if there's something as important as that, we should have it in us. We the leaders. Who are supposed to be there to serve the people to bow out and give and allow justice a chance. But we're not doing it in this country, and the normal thing is I'm going nowhere, prove it. Motoso can do that. But we're not Motosa. We are leaders of our people, and we are driven by high values because we want to achieve with high ideas to achieve. I want to see all of us better than we ever were before. And taking political power is a very vital step. Abusing it thereafter is criminal. It's treasonable. Nobody should do that.

SPEAKER_02 1:17:31

Thank you so much, leadership.

SPEAKER_00 1:17:33

Yes. Thank you. Thank you, comrades.

SPEAKER_01 1:17:36

Thank you.

SPEAKER_00 1:17:36

You've got it. You've always wanted to interview me.

SPEAKER_02 1:17:41

And uh, I really would like our people to get themselves the copies. Very powerful stuff, and thank you so much.

SPEAKER_00 1:17:49

Thank you so much for doing this. Thank you. I'm quite happy.