Did Mandela give us hope or…


30 August 2020

A mere shimmer which in time disappeared like a far away mirage or a distant delusion

Dikgang Moseneke

It has been a quarter of a century since that momentous day, and the swearing-in of Nelson Mandela as South Africa’s first democratically elected president.

There are activists today who argue that what ought to have been a meaningful change of guard was in reality no more than a bogus victory. In the event it did nothing, they say, for the cheering, clapping, singing and dancing crowds who celebrated joyously that day, with hope in their hearts. That hope was a mere shimmer which in time disappeared like a faraway mirage or a distant delusion. The fact of the matter was that most of the tools of oppression and exclusion remain unaltered.

Taking stock, what does South Africa have to show for democracy, they ask, and one cannot dismiss the bleakness of the picture that is painted on the canvas for all to see.

Economic growth is flat at best. Jobs are few and hard to find in an ever-renewing digital age. The norm is disruption and not consolidation.

It is less about what you have learnt and know and more about what you are likely to innovate or make anew. Newness trumps orthodoxy as the skilled and privileged accumulate more and the unskilled remain on the edge. This difficult social order also deepens fault lines such as gender, race, class or socio-economic status, mental and physical disability, sexual orientation and migrant status. As though that were not enough, the poor are disproportionately high victims of crime on the one end and of the erratic ravages of climate change on the other.

Missed opportunity

A large majority of citizens are dispossessed of land and are still landless and homeless. Social disparity has deepened rather than decreased. More and more people live on the fringes of social wellness; they survive from hand to mouth and look to the safety net of the state. The means of creating goods and services continue to be the preserve of the few resourced and skilled people and entities. Patriarchy and the resultant social inequality and oppression of women and girls remain entrenched. On all showings, violence against and ill-treatment of women and girls have been rising.

And yet … none of these setbacks can ever justify erasing the seminal moment of change that Mandela symbolised and stood for. He ushered in the space, however limited and imperfect, and we, the foot soldiers, failed him. We failed in great part to grasp the nettle. We lacked the courage to change our world irreversibly, and particularly of those in need. Instead we gorged ourselves on our newly acquired power over the people; we fed ourselves sick. We paid little devotion to the goals of our long, glorious struggle.

Wide-eyed, we made the way of George Orwell’s Animal Farm a self-fulfilling prophecy. One might be forgiven for asking the question: is it cast in stone that leaders of a revolution will betray their followers?

Past the ceremonies, Mandela knew that from the outset the country deserved good initial judges whose ability and history would be beyond reproach. The new Constitutional Court would not be the whole judiciary but it was to be the leader in giving content and value to the vast promises of our democratic freedom.

In June 1994, within a month of becoming president, he appointed Arthur Chaskalson SC as president of the Constitutional Court – this after consultation with the cabinet and the chief justice of the time, Michael Corbett. The interim constitution required that after certain set discussions the president would appoint four judges from the ranks of sitting judges from the Supreme Court, as it was then called. The four were justices Ismail Mahomed, Tholi Madala, Laurie Ackermann and Richard Goldstone.

Shortly thereafter, during October 1994, the president chose the remaining six justices from a shortlist of 10 sent to him by the Judicial Service Commission (JSC) after they had interviewed no fewer than 25 aspirants who had been drawn from along list of other hopefuls.

The six were Justice Johann Kriegler, Justice John Didcott, Adv Pius Langa SC, Prof Kate O’Regan, Prof Yvonne Mokgoro and Prof Albie Sachs. Each was to serve a non-renewable term of seven years, which was later extended to a period of between 12 and 15 years, depending on when the judge was first appointed and whether they had prior years of service on the bench.

The racial mix of the anointed ones raised certain eyebrows. We had just emerged from a society where race was everything. Many could not help wondering why Mandela preferred seven of the 11 justices to be white people.

Hands tied

As past beneficiaries of apartheid, how could they possibly shut the door firmly on our horrific and uneven past? The fact obscure to the critics was that Mandela did not have a free hand. The pre-agreed selection processes were negotiated and written up in the interim constitution. The four Supreme Court judges Mandela had to choose were likely to be white South Africans because there were virtually no black judges then to choose from – Madala and Mahomed were all he had.

Also, at that time people other than judges who might be suited for judicial roles were more likely to be white than black. But even so, Mandela’s choice of the new judges stood and was accepted.

Remember, he could do no wrong and mercifully the new Constitutional Court took off with so much excellence and integrity that the discomfort about racial bulk soon fell away.

On the morning of February 14 1995, President Mandela officially opened the Constitutional Court, with Chaskalson as the president and Mahomed as deputy president. All 11 judges took the oath of office wearing green robes. (I never did like those green robes but back then I didn’t have to; my turn was still to come.) In attendance was Dullah Omar, the minister of justice.

Once properly constituted, the new court got down to work. The very next day, the 11 justices took their seats to hear the first case – the State v Makwanyane – on whether the new constitution permitted the death penalty. Each of the 11 judges, led by Chaskalson, wrote a judgment in support of the unanimous conclusion that capital punishment was inconsistent with the ground rules of our constitutional ethos.

Chief Justice Corbett retired in 1996 and Justice Mahomed was elevated to the position of the chief justice at the Supreme Court of Appeal in Bloemfontein, a position he held until his untimely death in 2000. Justice Pius Langa filled the vacancy of deputy president at the Constitutional Court.

The bench of the Constitutional Court was colourful in many admirable senses. No fewer than six of the 11 were veteran judges who had served in courts before the democratic regime but all had earned wide respect by setting themselves apart from the apartheid legal ethos. They brought their competence and big reputations to the new job and they knew it. Counsel after counsel related how difficult it often was to put in a word or argue before the court uninterrupted.

I remember well my appearance as a senior counsel before the same court in 1995. I was counsel for the minister of home affairs, Prince Mangosuthu Buthelezi, and the government of South Africa, who sought me to defend the constitutional validity of certain provisions in legislation that regulated publication. Certain provisions in the law banned or disallowed free expression of “lewd” and “indecent” materials – which was the jargon of lawyers for

My difficulty at the hearing was that I could not get a word in as the learned justices debated stridently among themselves. These were extremely clever judges who knew the answers to most of the questions the other judges asked and that they themselves asked.

  • Moseneke is former deputy chief justice. This is an extract from his latest book
    – All Rise



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