Justice Dikgang Moseneke
“Even when I stepped into the robes to become a judge, I have always felt quite strongly that we are entitled to try and recreate society and move from that dark space into a better lit up space and surely improve the lives of people.”
A prisoner on Robben Island at the age of 15, Justice Dikgang Moseneke was a passionate anti-apartheid activist. After his release, he practised as an advocate and judge. During South Africa’s transition from Apartheid to Democracy, he contributed to the drafting of the Constitution and was intimately involved in running the first democratic elections in South Africa in 1994. Moseneke was appointed justice of the Constitutional Court and served as Deputy Chief Justice of South Africa.
Early Life and Career
Dikgang Moseneke was born in Pretoria on 20 December 1947. At the age of 15, he was detained in solitary confinement for one month without the ability to consult with a lawyer. In July 1963 Moseneke was convicted of sabotage along with 13 others. He was sentenced to 10 years’ imprisonment on Robben Island. Moseneke’s most important accomplishment while on the island was his education. During his incarceration, he matriculated and earned two degrees from the University of South Africa: a bachelor degree in arts, and a Baccalaureus Juris degree.
When Sharpeville happened, I was – what? Twelve, thirteen? And I hated to see dead bodies lying in pictures on the front page of Bantu World, or the World at that time, and I just hated it. I wondered why they were shot. All of that stayed with me, so by the time I was 15 in 1963, I think I had made up my mind that I was going to do something to free myself.
Dikgang Moseneke
Deputy Chief Justice of the Constitutional Court
The pain and adversity in my childhood prepared me for a life-long commitment to conduct what will bring true and full liberation of our land and all its remarkable people. The sojourn on Robben Island set me on a course of constantly asking: what are the features of a good society?
Dikgang Moseneke
Deputy Chief Justice of the Constitutional Court
At the age of 25 Moseneke was released from prison on 1 July 1973. He took a job as a law librarian and legal researcher and was later taken on as a full articled clerk at the Pretoria law firm, Klagbruns, Schewitz, and Partners. This was the first time that a black person had been enrolled as an articled clerk at a white law firm in the city. He then applied for admission as an attorney, which led to a legal battle with the Transvaal Law Society. He won the lawsuit and was eventually admitted as an attorney.
I had the blessing of a vast, varied and progressive law practice that was well aligned with my personal and collective mantra: that I was my own liberator and that our people are collectively their own liberators.
Dikgang Moseneke
Deputy Chief Justice of the Constitutional Court
Seeing no partnership offer at Schewitz and Partners, and despite numerous social and political constraints, he established Maluleke, Seriti and Moseneke in 1978, the first significant black law firm in the city centre of Pretoria. In 1982 Moseneke decided to go to the Pretoria Bar, a move into unchartered waters as the first black advocate at the Pretoria Bar.
During his interview with the Bar Council, Moseneke’s past political conviction was raised. Louis Harms reminded the panel that the constitution of the Bar had been amended. Any South African properly admitted as an advocate by the Supreme Court, whatever his political background might be, could be accepted. It was not the place of the Bar Council to keep Moseneke out only for the reason of his race or political history. Moseneke recognised that what Harms did was an act of courage during an era of racial orthodoxy. Harms stood up against bigotry when expedience could have better served his career and in 1983 Moseneke became the first black member of the Pretoria Bar.
I wanted to become an attorney even if I was a convicted terrorist (they said). I did everything to achieve that. I litigated against the Law Society to let me in, they didn’t want to. I went onto the Bar Council which had a race clause that excluded people who looked like me. There too I kicked the door open, very determined to become a spokesperson for our people in difficult times in that troubled past.
Dikgang Moseneke
Deputy Chief Justice of the Constitutional Court
Ten years after joining the Bar Moseneke was elevated to the status of senior counsel and also served on the technical committee that drafted the interim Constitution. In the beginning of 1994 he was appointed Deputy Chairperson of the Independent Electoral Commission, which conducted the first democratic elections in South Africa:
When I was at CODESA (Convention for a Democratic South Africa), I was appointed as an independent expert. I was in the technical team that wrote the interim Constitution. I had resigned from the PAC [Pan Africanist Congress of Azania] nearly two years by the time … I had made up my mind quite clearly that I was not going to pursue a career of politics … Politicians are moved by a desire for power, public power, and retaining the power, and they do all sorts of things … And yet there are dreamers like me who are cherishing and hoping for an idealised society which really in earnest seeks to open up and permit full accomplishment of people through their efforts and through collective arrangements.
Dikgang Moseneke
Deputy Chief Justice of the Constitutional Court
In September 1994, while practising as an advocate, Moseneke accepted an acting appointment to the Transvaal Provincial Division of the Supreme Court. Between 1995 and 2001 Moseneke left the Bar to pursue a full-time corporate career. He served in various positions including Chairperson of Telkom South Africa Limited, the African Merchant Bank, and African Bank Investments. He was also Chief Executive of New Africa Investments and Director of New Africa Publications. In November 2001 Moseneke was appointed as a judge of the High Court in Pretoria.
Appointment to the Constitutional Court
In 2002 Moseneke was appointed as a judge in the Constitutional Court, and in June 2005 as Deputy Chief Justice of the Republic of South Africa. He retired from the Court in 2016.
I cannot remember a case that was not challenging. The role of the judge is to resolve disputes and by the time the cases reach the Constitutional Court, that is an indication of how serious the issues being disputed are.
Dikgang Moseneke
Deputy Chief Justice of the Constitutional Court
Judgments of Interest
Abahlali baseMjondolo Movement SA v Premier of the province of KwaZulu-Natal and Others (2009)
The provincial government of KwaZulu-Natal (KZN) introduced the ‘Elimination and Prevention of Re-emergence of Slums Act’, known as the Slums Act. With the aim to eradicate shacks, the Slums Act allowed the province and municipalities greater ability to remove shack dwellers from their homes and place them in temporary housing.
Abahlali baseMjondolo took the KZN provincial government to court stating that the Slums Act was unconstitutional and violated section 26(2) of the Constitution – the right not to be arbitrarily evicted from their homes. Deputy Chief Justice Moseneke writing on behalf of the Constitutional Court found that the Slums Act was unconstitutional as it violated section 26(2) of the Constitution. He found that section 16 of the Act will make residents of informal settlements, who are invariably unlawful occupiers, more vulnerable to evictions should an MEC (Member of the Executive Council) decide to issue a notice of eviction under section 16.
In my view, to the extent that section 16 eliminates discretion on the part of the owner or municipality, it erodes and considerably undermines the protections against the arbitrary institution of eviction proceedings. It renders those who are unlawful occupiers and who are invariably found in slums and informal settlements liable to face eviction proceedings which, but for the provisions of section 16, would not have occurred.
Deputy Chief Justice Dikgang Moseneke
the Abahlali Basemjondolo judgment, 14 October 2009
Hugh Glenister v President of the Republic of South Africa & Others (2008)
In this monumental judgment, the Constitutional Court declared that the legislation which established the Directorate for Priority Crime Investigation (the Hawks) and dissolved the independent crime fighting Directorate of Special Operations (the Scorpions), was constitutionally invalid to the extent that it did not secure the necessary structural and operational independence for an effective corruption-fighting body.
In a judgment written by Deputy Chief Justice Moseneke and Justice Cameron, the Court made two key findings. First, the Court held that both the Constitution and binding international law agreements impose an obligation on the state to establish an independent anti-corruption agency. While the Constitution does not expressly mandate an independent anti-corruption unit, the Court reasoned that an obligation stems from the Constitution read as a whole. The Court pointed out that corruption threatens the rights laid out in the Bill of Rights, thus, it becomes clear that failure to establish a sufficiently independent anti-corruption unit culminates in failure to meet the obligations imposed by section 7(2) of the Constitution which requires the state to “respect, protect, promote and fulfil the rights in the Bill of Rights”. Secondly, the Court found that the Hawks did not adequately meet the constitutional requirement of independence. The Court found that the Hawks were insufficiently protected from political interference in its make-up and functioning.
There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.
Deputy Chief Justice Dikgang Moseneke and Justice Edwin Cameron
the Glenister judgment, 17 March 2011
Life after the Constitutional Court
In 2020, Moseneke was awarded the Bolch Prize for the Rule of Law from the Bolch Judicial Institute at Duke University School of Law in Durham, North Carolina, U.S.A. He has written two memoirs, My own Liberator and All Rise. He also chaired the high profile Life Esidimeni arbitration which investigated the deaths of 144 mental health care users. He donated his fees from chairing the arbitration to well performing law students of the University of the Western Cape.
Family and Personal Life
Moseneke is married to Khabonina and they have a daughter and a son. Moseneke lost one son to health complications in 2005.
In the words of others
Soon after I arrived, I dubbed Dikgang ‘the golden heart of the Court’. The Court’s feeling for justice, its commitment to equity and its striving to afford those litigating before it dignity and equality, coursed through his veins and arteries to enrich the lifeblood of all our insights and output and judgments.
Edwin Cameron
former Justice of the Constitutional Court
I was always warmed by his intellectual bias in favour of the weak and vulnerable while staying true to our developing and progressive constitutional jurisprudence, which came with both possibilities and limitations. A quality that most closely competes with his grit, industry and intellect must be integrity – that rare commitment to, always, do the right thing, however inconvenient or costly … His most abiding quality, if patriotism is a personal quality, is that he loves his country and its people above all else.
Tiego Moseneke
brother of Justice Moseneke
Crafting it (the Constitution) demanded focused intellectual energy coupled with a strong degree of engagement with the life of the nation. Dikgang contributed both the strong legal brain and the sharp set of life experiences that were needed. He had known the law at its most vicious, and yet had also dreamt most vividly of converting the law into an instrument for emancipation. He had guts, he had spirit, he wanted a wonderful new South Africa – and he wanted it deeply.
Albie Sachs
former Justice of the Constitutional Court
‘I have read your heads of argument and they are well drafted.’ That is what I remember the DCJ [Deputy Chief Justice] saying to a number of young nervous advocates appearing before the Court for the first time. This simple act would put the newbie advocate at ease. It showed me that the DCJ was aware that his presence on the bench matters, what he says matters and it showed me that he understood his power which he can use to intimidate or to inspire. More often than not, I have seen him choose the latter.
The DCJ has taught me to be fearless and indefatigable. It is because of black lawyers like him that I feel like I belong, the reason I have not given into my self-doubt, and most importantly he is one of the reasons that I believe that my blackness is not an indictment nor a hindrance to greatness but rather a source of vigour.
Lwando Xaso
former law clerk at the Constitutional Court
