Mogoeng Mogoeng - Chief Justice of South Africa HARDtalk

Now on BBC it's time for HARDtalk. Welcome to HARDtalk. Since the end

of apartheid almost 20 years ago, South Africa's constitution has

become one of the most admired in the world. It is progressive,

transformative and guarantees equality and human rights. Despite

the great strides the country has made, the reality is not living up

to the promise. The legal system which guarantees the constitution

has come under fire from within the Government, the opposition, and

from some human rights groups. The butt stops here. My guest today is

South Africa's Chief Justice, Mogoeng Mogoeng. Chief Justice,

welcome to HARDtalk. Are some South Africans right to be disappointed

that, despite the great strides the country has made, and there have

been great strides, the judiciary itself has not made enough changes

to keep up with the expectations of the Rainbow Nation? They are

entitled to that. We cannot undo the damage that was done by

apartheid over 400 years in 20 years. You yourself said a lot of

white lawyers get the best business. White lawyers who are still in

charge of the economy channel their instructions and beliefs to white

people. Is that damaging or will it take 13 years to change? It is

damaging in the sense that I am not aware of any plan to diversify the

instruction giving pattern or the briefing pattern. There is very

little that is being done to empower women and black

practitioners, advocated in particular by attorneys? Very

little is being done for empowering women. Is that not your job?No.

You are at the top of the tree. job is not to give jobs to the

attorneys. My job is to give work to the advocates who will give work

to the attorneys. They can be worked to the advocates. How is

this going? Very slowly.On the other hand, the system is also

being attacked by those who say the system that appoints the judges has

been overlooking some very well- qualified white candidates to fast-

track some less qualified black candidates. I do not understand

that argument. There seems to be a perception that has been

popularised that whenever certain people say that you are the best

advocate, you are an ideal candidate for judicial appointment,

what the system must do is bow down their head and understand your

preference. Like a rubber stamp. We do not do things that way. We

question every candidate who comes in front of us. At the end of the

day, it is not the decision of the public opinion makers that

recommends the chairman. Does that mean that you are convinced you are

getting the best person for the job, bearing in mind the constitutional

commitment to equality? You need more women, for example. Definitely.

I need women just as women are needed in the UK. I was humbled to

realise in my interactions with colleagues that we have made more

progress than the UK, which has never been repressed by anybody for

many years, has made. The UK may be very slow at this. People need to

take that on the chin. Two out of the 11 members of the top courts

are women. That is not good enough if you're promising equality.

out of 12 in the UK. Supreme Court judges. Not enough. You have a

constitutional commitment to it. Absolutely. I don't need to be

pushed to do it - it is something I want to do. It will take years. It

will take some time. Do you see a parallel between the lack of black

lawyers at the top under apartheid and the lack of women now? In other

words, you lose something from a system if you do not reflect the

society as it is. It is true in Britain, too. Until such time that

there is proper representation of both women and black people, even

in the upper echelons of the judiciary, there is still a lot to

be done. People have the right to complain. Until then, people have a

right to complain about the lack of progress. There are those who

complain about your appointment, to get personal. You have had to take

that on the chin, haven't you? Presumably you would like political

consensus? It is not there. Many think it is a defective process.

disagree with them. More importantly, asking about the

strides I have made from the time of my appointment up until now,

just under two years. Ask her to question my judgement writing

ability, the sort of judgements I have written, and the efforts I

have made to strengthen the independence of the judiciary. I

have also dedicated traditional offices. Do you regret that this

has become politicised? People say yours was a political appointment.

If there is opposition to it, it has become politicised. You would

not want that. I do not regret it. I think it is demonstrative of the

vibrancy in South Africa. You will not always find South Africans

agreeing on everything. It is healthy debate. I do get concerned

when people perpetuate stereotypes in total disregard of the facts.

Let me put something which comes from one of your supporters which

also points out the difficulties in this for this debate. You say it's

a vibrant and vociferous debate. The Secretary General of the EU

suggests that there was hostility between the judiciary and the

Government which is undermining the government. He says you cannot have

a judiciary which seeks to undermine the government. Is that

what is happening? No. We are committed to observing separation

of powers. Whenever we believe that any legislation, policy or conduct

is inconsistent with the constitution of South Africa, we

must ensure that the constitution which is supreme law prevails. He

was speaking before your appointment. There are those who

say you have been appointed to make it less critical of the executive

and the Government. Trying to bring them more into line. I think it is

an insult to the South African judiciary to suggest that. In the

first place, one must look at the structure of the judiciary. Judges

are insulated from being manipulated by anyone. Be that the

legislative, the executive, the media or big business. I do not

know what possibility exists for me to control 2000 judicial officers

in my country single-handedly. They have to provide facts and present

them rather than rely on suspicions. They are damaging remarks. So when

remarks are made they are damaging? When remarks are consistently made

that are unsubstantiated, remarks that undermine the confidence the

populace must have in the judiciary, it harms our democracy. TUC this

example. One man said you were part of Jacob Zuma's attempt to control

the judiciary. Based on what? Do not accept lazy accusations that

are not based on anything. This is important for us up Africans. South

Africans must accept facts.. Something which is causing great

concern is the reputation for violence towards women. The country

has been called the rape capital of the world. However you judge it,

there are certainly too many rapes in South Africa. Amnesty

International has said that the level of violence against women is

shameful. I agree.What can you do about it? For starters, it is

necessary that the entire justice class is challenged to look at new

ways of assuring that we are effective in dealing with violence

against women. One of the measures that is being implemented in

response to what the judges resolved should be done in 2011.

That is the establishment of more sexual offences courts.

Additionally, I asked all the departments and units within the

justice cluster that we form a body, that has since been formed on 13th

October, 2012, It is called the National Efficiency Enhancement

Committee. We will find solutions to get there without compromising

anyone's constitutional independence. What Amnesty

International said in the report last year is that there is a

climate of impunity for crimes of sexual violence. The statistics are

that one woman in South Africa is raped every four minutes. One third

of female graduates has been raped. Just over one-third of men admitted

they had raped a woman. You accept that is shameful. The suggestion is

that it is not being taken seriously enough by the courts or

the police. I am saying that in recognition of the magnitude of the

problem, we have set up a committee in which performance-related

problems will be highlighted and suggestions will be made. I can

give you an example with the police. This is what we said at the last

meeting. You have got to make sure that police increase the

investigating capacity that they have. Let the investigators be

empowered and let them attend more refresher courses so they are more

efficient and effective in carrying out their responsibilities,

including investigating crimes against women. Have you changed as

you have grown into this job? Over the past few years. At the start

you said you were criticised by a lot of people - that including

three female women in the Nobel Initiative. They said that your

rulings as a judge had undermined the prosecution of the crimes.

was able to demonstrate just how biased those who were critical of

me were. They relied on three judgements when there were many

judgements which showed that I did better. I was strong and fair. They

were judgements to ensure that I didn't get appointed. This is for

the view was not familiar with this. In 2004, you reduced the life

sentence of a man convicted of raping a seven-year-old girl from

life to the minimum. You suggested the man had been tempted because

she was wearing a nightdress and pants. In another case, you said a

man who raped a 14-year-old girl must have been mindful of her age

and was careful not to injure her private parts. He said just

accidentally. You can see why people might find those judgements

objectionable. If Manchester United loses three games and you say it is

a bad team, that is equivalent to that type of judgement. You cannot

ignore the other judgements that the three might have given rise to.

They refute those perceptions. If you are determined to stigmatise a

person, you can look at little dots that might provide you with

material for running him or her down. There is no merit in such

criticism. No substance. I dealt with it thoroughly during my

interview. I challenge anyone who was opposed to my appointment on

the basis it would do harm to the judiciary to demonstrate what harm

It is about perception. It is about being seen to take things seriously.

You have got to look at the totality of the judgments. You

cannot just isolate those you want and judge a person on the basis of

those. Otherwise you would just take the 20% failing students and

ignore the be 80% who passed. I refer to the judgement of the

Supreme Court of Appeal, which was a judgement higher than the higher

court of which I was operating. People refused to see that. Some

people would say comparing it to passing examinations or football is

still not taking it seriously enough. Compared to the judgement

of other judges. It is still a live issue. If you're determined to find

fault and refuse to see facts, it will forever be a live issue.

mayor of Cape Town called you an apologist for rapists. Because of

the three judgments again. Why is she and others refusing to see all

other judgments? Do you think you have developed, that you have

changed, as you have listened to the criticism? You are clearly

annoyed by it, but have you changed personally and are you more

sensitive to the ways that people, particularly women, feel towards

this crime? I have been sensitive and I am open to education and I

appreciate it even more just how careful one must always be in every

statements you make, irrespective of where you are. Do you regret

anything about the way you phrased it? In the context of the facts

that were before me, I do not regret anything, but I have learnt

from the criticism. I cannot claim the phrases were perfect. I can say

that I was being insensitive and feeding into the impunity against

violence towards women. We began talking in this conversation about

how South Africa measures up to the great hopes that Nelson Mandela and

others had for your country. I just wonder how you feel the Protection

of State Information Bill, also known as the Secrecy Bill, feeds

into that? A lot of people think that is to stop people embarrassing

the Government by printing details of corruption and things which

would otherwise be hidden. Many take the case to challenge the

constitutional validity before the courts. It would be inappropriate

for me to make any comment whatsoever on that bill. It could

end up having to be... It is coming. It will come? So therefore you

cannot talk about it? Not specifically, can you talk about

the worries that there are restrictions on what people can see

and read and hear in the media in South Africa? In a free, democratic

society, that is difficult. What I am prepared to say is I am fully

committed to ensuring that freedom of expression, freedom of the media,

is promoted and I will continue, as I am duty-bound to do, to do

everything within my power to support the enjoyment of the

constitutional rights. Can we talk a little about your personal

journey? When you were a kid growing up in a South Africa where

presumably you thought there wasn't much justice for people of your

race, did you ever think you would become chief justice of South

Africa? I had a sense that I was going to play a meaningful role in

South Africa and I was looking forward to being able to make

whatever little contribution I could get to make the lives of both

black and white South Africans better and contribute towards

reconciling the damaging and highly negative relationships that we had

at the time. But Chief Justice? No. You are a religious person and I

have read that you were told that there was a prophecy that you would

get this job. Did you believe that? Of course I did. Why?Whatever

religion you subscribe to, when you are sure in terms of your religion

that your God has spoken, you believe that. Did God speak to you

and say you would get this job? prophet. I spoke to a prophet.

told you?. In fact, a number of prophets. People have tried to make

a mockery out of it. It is my faith. South Africa recognises freedom of

religion. It is unfortunate that people mock the religion of others.

Nothing that people say will cause me to depart from my faith.

Nothing? Nothing. It is my constitutional right and I am

enjoying it. We have talked about how far South Africa has travelled

in the past 20 years. Where do you see it in the next decade? You

speak to a lot of people that were disappointed about the poor, the

fact that black people do not have land that they could perhaps have.

They are disappointed about the low wages that many people have. Are

you disappointed by that? I wish that we could do more faster. It is

for this reason that through our judgments we do our utmost best to

make sure that life is breathed into the constitutional rights of

the people. Do you see that South Africa, the real moment of maturity

of South Africa will be when there was a peaceful transition from the

ANC government to some other party? That is when a country really grows

up as a democracy, there is a peaceful transition to the people

you do not want in power. I do not look at things that way. I think a

lot of progress will be made as we continue to challenge one another

about the limited extent to which some of us appear to be delivering

services that they are expected to deliver. As I continue to do more

and encouraging those in allied institutions to do more I think

South Africa will change. Does it anger you, the slowness of it all?

Anger is not the word. I do get disappointed at times, but whenever

I get disappointed, I say to myself, "What is it I can do instead of

pointing fingers at others?" As we are speaking, Nelson Mandela, a

great hero to your country and around the world, is coming at some

point to the end of a long and extraordinary life. I wonder what

your thoughts about him are? have just indicated that I am a

Christian. I pray for him. He is quite a unifying force. I hope that

the memory of his sacrifice and the efforts that he made to unify our

country will be forever living in our consciousness as South Africans

whenever we feel constrained along racial lines. People will remember

the rainbow nation and also his sacrifice? They will remember his

humility and remember when he was willing to subject himself to the

court proceedings, being subpoenaed by a judge to come and testify. He

did not try to pull his weight. I think he was constitutionality

epitomised and I hope that all South Africans will remember that

and seek to follow in his footsteps. What is his great achievement,

unlike other leaders in Africa, he gave up power. Yes. Absolutely. He

had a succession plan. Finally, if he looks around South Africa today

and looks at his legacy, do you think he would be pleased about

where you are or would he be critical? Would he give you a hard

time in some of the areas we have been talking about? I think once he

gets to know all that I have done, he will have a reason to be

encouraged. He will have a reason to be consoled that at least there