Dikgang Moseneke

Dikgang Ernest Moseneke (born 20 December 1947) is a South African judge and former Deputy Chief Justice of South Africa.[1]

The Honourable Dikgang Moseneke
Chief Justice of South Africa Acting
In office 4 November 2013 – 31 March 2014
Deputy	Thembile Skweyiya (Acting)
Preceded by	Mogoeng Mogoeng (Chief Justice)
Deputy Chief Justice of South Africa
In office 1 June 2005 – 20 May 2016
Appointed by	Thabo Mbeki
Chief Justice	Pius Langa Sandile Ngcobo Mogoeng Mogoeng
Preceded by	Pius Langa
Succeeded by	Bess Nkabinde (Acting)
Justice of the Constitutional Court of South Africa
In office 29 November 2002 – 20 May 2016
Appointed by	Thabo Mbeki
Personal details
Born	(1947-12-20) 20 December 1947 Pretoria, South Africa
Spouse(s)	Khabo Moseneke
Children	3
Alma mater	University of South Africa

Biography

Moseneke was born in Pretoria and went to school there.[1] He joined the Pan-Africanist Congress (PAC) at the age of 14.[2] The following year he was arrested, detained and convicted of participating in anti-apartheid activity. He spent ten years as a prisoner on Robben Island, where he met and befriended Nelson Mandela and other leading activists.[3] While imprisoned he obtained a Bachelor of Arts in English and political science and a B.Iuris degree, and would later complete a Bachelor of Laws, all from the University of South Africa. He also served on the disciplinary committee of the prisoners' self-governed association football body, Makana F.A..[4]

Moseneke started his professional career as an attorney's clerk at Klagbruns Inc in Pretoria in 1976.[1] He was admitted as an attorney in 1978 and practised for five years at Maluleke, Seriti and Moseneke. In 1983 he was called to the Pretoria Bar. His application had sparked a dispute within the Bar which culminated in its abolishing its "whites-only" membership rule.[2] Moseneke practised as an advocate in Johannesburg and Pretoria and was awarded senior counsel status ten years later. Moseneke worked underground for the PAC during the 1980s and became its Deputy President when it was unbanned in 1990.[2] Moseneke also served on the technical committee that drafted the interim constitution of 1993.[1] In 1994 he was appointed Deputy Chairperson of the Independent Electoral Commission, which conducted the first democratic elections in South Africa.

Judicial career

In September 1994, while practising as a silk, Moseneke accepted an acting appointment to the Transvaal Provincial Division.[1] Between 1995 and 2001, however, Moseneke left the Bar to pursue a full-time corporate career, most famously as the chair of Telkom. In November 2001 Moseneke was appointed to the High Court in Pretoria, his hometown, by then President Thabo Mbeki. A year later he was made a judge in the Constitutional Court and, in June 2005, became Deputy Chief Justice. On 4 November 2013, Moseneke was appointed Acting Chief Justice during the long-term leave of Mogoeng Mogoeng.[5]

Moseneke is regarded as one of the strongest judges on South Africa's Constitutional Court. For example, he has been praised for his "towering legal mind" and "commitment to fairness and justice"[6] and described as "a most independent-minded and imaginative jurist".[7] Moseneke's judgments include:

• S v Thebus,[8] which upheld the constitutional validity of the doctrine of common purpose;
• Steenkamp NO v Provincial Tender Board,[9] which details the relationship between public- and private-law remedies;
• Masetlha v President,[10] which held National Intelligence Agency head Billy Masetlha was not entitled to procedural fairness when he was dismissed by then President Thabo Mbeki;
• National Treasury v Opposition to Urban Tolling Alliance,[11] where the Court refused to grant an interim injunction to stop Gauteng's controversial e-tolls;
• Mazibuko v Sisulu,[12] in which then leader of the opposition Lindiwe Mazibuko succeeded in obtaining an order declaring unconstitutional the parliamentary rules that allowed the National Assembly to stall, rather than proceed with, the motion of no confidence in President Jacob Zuma that she had tabled; and
• Minister of Police v Premier of the Western Cape,[13] in which the Court found in favour of Premier of the Western Cape Helen Zille when the African National Congress sought to invalidate her creation of the Khayelitsha Commission.

Also well-known are his two leading judgments on affirmative action, Minister of Finance v Van Heerden[14] and SAPS v Barnard.[15]

Moseneke has made a significant contribution to South African property law. He penned the Constitutional Court's last three majority judgments on the Restitution of Land Rights Act[16] and decided a leading case on expropriation in 2014.[17] The following year, in Shoprite v MEC, Eastern Cape, which dealt comprehensively with the meaning of the constitutional right to property, Moseneke's judgment attracted the most concurrences.[18]

The courtroom of the Constitutional Court of South Africa

Most celebrated is Moseneke's judgment in Glenister v President, co-authored with Justice Edwin Cameron, which struck down amendments to the National Prosecuting Act and South African Police Service Act on the basis that they failed to create an "adequately independent" anti-corruption unit.[19] This was hailed as an "imaginative"[20] and "brilliant"[21] judgment by commentators and means South Africa must have an independent corruption-fighting agency notwithstanding the ruling ANC's controversial disbanding of the Scorpions.

Before his judicial appointment, Moseneke had succeeded, as a litigant, in having South Africa's racially discriminatory system of estate administration declared constitutionally invalid.[22]

Moseneke is also known for his independence. At public events he has distanced himself from ANC interests, criticised the government's flouting of court orders, and decried the extensive powers afforded the President - in each case triggering an angry response from the ruling party.[6][23][24] Moseneke has twice been passed over for appointment as Chief Justice, despite being the most senior judge on the Court. On the second occasion, when Mogoeng was appointed, many prominent figures said Moseneke was the better candidate, and questioned the ANC's motives in snubbing him.[25][26][27][28] Mogoeng was one of the Constitutional Court's most junior members, having been appointed to it less than two years earlier, and having had a relatively short judicial career at one of the smallest High Court divisions prior to that.[29][30] His nomination ahead of Moseneke reminded many of the notorious supersession by L. C. Steyn, a National Party favourite, of Oliver Schreiner.[30][31] Finally, whereas Moseneke had been active in the struggle against apartheid, Mogoeng had been a prosecutor for a bantustan.[32][33]

Moseneke retired from the Constitutional Court in May 2016.[34]

Other positions and awards

Moseneke has six honorary doctorates: from the University of the North, University of Natal, Tshwane University of Technology, University of South Africa, University of Cape Town and CUNY.[1]

In 2006, he succeeded Justice Richard Goldstone as Chancellor of the University of the Witwatersrand.[35][36] Moseneke was also named as an executor of the will of Nelson Mandela, who died in late 2013.[37] He is currently chairman of the Board of Directors of the Johannesburg Philharmonic Orchestra.[38]

Moseneke is the 2020 recipient of the Bolch Prize for the Rule of Law[39] awarded by the Bolch Judicial Institute at Duke Law School.

References

1. "Deputy Chief Justice Dikgang Moseneke". Constitutional Court of South Africa. Retrieved 2008-11-09.
2. "Honorary degree citation: Dikgang Moseneke", Wits University.
3. "Dikgang Moseneke tries as a judge to live out Mandela's ideals". News24. 2012-12-07. Retrieved 2015-05-18.
4. "Fifa gives Zuma his ref's certificate". SouthAfrica.info. 2009-06-30. Archived from the original on 2011-05-11. Retrieved 2009-11-03.
5. "Moseneke to act as Chief Justice". SABC. 4 November 2013. Archived from the original on 10 June 2015. Retrieved 2013-11-20.
6. de Vos, Pierre (2008-01-17). "ANC pulls back from the brink on Moseneke". Constitutionally Speaking. Retrieved 2015-05-18.
7. Tolsi, Niren (18 October 2013). "Applause for Mogoeng's judicial cadenza".
8. Thebus and Another v S (2003) ZACC 12.
9. Steenkamp NO v Provincial Tender Board of the Eastern Cape (2006) ZACC 16.
10. Masetlha v President of the Republic of South Africa and Another (2007) ZACC 20.
11. National Treasury and Others v Opposition to Urban Tolling Alliance and Others (2012) ZACC 18.
12. Mazibuko v Sisulu and Another (2013) ZACC 28.
13. Minister of Police and Others v Premier of the Western Cape and Others (2013) ZACC 33.
14. Minister of Finance and Another v Van Heerden (2004) ZACC 3.
15. South African Police Service v Solidarity obo Barnard (2014) ZACC 23.
16. Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd (2007) ZACC 12; Kwalindile Community v King Sabata Dalinyebo Municipality and Others; Zimbane Community v King Sabata Dalinyebo Municipality and Others (2013) ZACC 6; Florence v Government of the Republic of South Africa (2014) ZACC 22.
17. Arun Property Development (Pty) Ltd v City of Cape Town (2014) ZACC 37.
18. Shoprite Checkers (Pty) Limited v Member of the Executive Council for Economic Development, Environmental Affairs And Tourism, Eastern Cape and Others (2015) ZACC 23.
19. Glenister v President of the Republic of South Africa and Others (2011) ZACC 6
20. Boonzaier, Leo (2015-03-25). "A constitutional obligation to disclose political party funding?". African Legal Centre. Retrieved 2015-05-18.
21. De Vos, Pierre (2011-03-18). "Glenister: A monumental judgment in defence of the poor". Retrieved 2015-05-18.
22. Moseneke and Others v Master of the High Court (2000) ZACC 27.
23. "Moseneke in new clash with Zuma". Sunday Independent. 14 May 2012. Retrieved 18 May 2015.
24. Meyer, Walda (2 March 2015). "SA judiciary independence questioned". IOL. Retrieved 18 May 2015.
25. Calland, Richard (2013). The Zuma Years. Zebra Press.
26. Mbanjwa, Xolani (17 August 2011). "Outrage over new Chief Justice". The New Age. Archived from the original on 19 May 2015. Retrieved 25 July 2014.
27. Nodoba, Gaontebale (18 August 2011). "What does Zuma have against Moseneke? - AZAPO". Politicsweb. Retrieved 25 July 2014.
28. "Moseneke for Chief Justice" Democratic Alliance press release.
29. Oxtoby, Chris (2013). "New Appointments to the Constitutional Court 2009-2012". South African Law Journal: 219–230.
30. Pretoria Centre for Human Rights (17 August 2011), Press release on the nomination of the Chief Justice. Retrieved 25 July 2014
31. Grootes, Stephen (18 August 2011). "Chief Justice controversy: A historical digression". The Daily Maverick.
32. SAPA (3 September 2011). "Cosatu slams Mogoeng nomination". News24. Retrieved 25 July 2014.
33. Vegter, Ivo (4 September 2011). "Mogoeng: Lock up your daughters". The Daily Maverick. Retrieved 25 July 2014.
34. "Six sets of wise words from Moseneke". Mail and Guardian. 20 May 2016.
35. IOL News, Dikgang Moseneke to be Wits chancellor, retrieved 28 December 2011
36. Jo'burg News, Moseneke takes on chancellor's mantle, retrieved 28 December 2011.
37. "Madiba's last will and testament is read today", Nelson Mandela Foundation press release, 3 Feb 2014.
38. "JPO and KZNPO in concert together to celebrate Justice Dikgang Moseneke - The Next 48hOURS". The Next 48hOURS. 2016-10-21. Retrieved 2018-06-29.
39. "Dikgang Moseneke, former deputy chief justice of the South African Constitutional Court, to receive 2020 Bolch Prize for the Rule of Law", Bolch Judicial Institute press release, 16 Jan 2020.