:00:12. > :00:14.Now on BBC it's time for HARDtalk. Welcome to HARDtalk. Since the end
:00:14. > :00:19.of apartheid almost 20 years ago, South Africa's constitution has
:00:19. > :00:22.become one of the most admired in the world. It is progressive,
:00:22. > :00:25.transformative and guarantees equality and human rights. Despite
:00:25. > :00:30.the great strides the country has made, the reality is not living up
:00:30. > :00:33.to the promise. The legal system which guarantees the constitution
:00:33. > :00:43.has come under fire from within the Government, the opposition, and
:00:43. > :00:44.
:00:44. > :00:46.from some human rights groups. The butt stops here. My guest today is
:00:46. > :00:56.South Africa's Chief Justice, Mogoeng Mogoeng. Chief Justice,
:00:56. > :01:11.
:01:11. > :01:14.welcome to HARDtalk. Are some South Africans right to be disappointed
:01:14. > :01:17.that, despite the great strides the country has made, and there have
:01:17. > :01:27.been great strides, the judiciary itself has not made enough changes
:01:27. > :01:31.
:01:31. > :01:34.to keep up with the expectations of the Rainbow Nation? They are
:01:34. > :01:40.entitled to that. We cannot undo the damage that was done by
:01:40. > :01:47.apartheid over 400 years in 20 years. You yourself said a lot of
:01:47. > :01:50.white lawyers get the best business. White lawyers who are still in
:01:50. > :01:56.charge of the economy channel their instructions and beliefs to white
:01:56. > :02:00.people. Is that damaging or will it take 13 years to change? It is
:02:00. > :02:10.damaging in the sense that I am not aware of any plan to diversify the
:02:10. > :02:14.
:02:14. > :02:16.instruction giving pattern or the briefing pattern. There is very
:02:16. > :02:26.little that is being done to empower women and black
:02:26. > :02:29.
:02:29. > :02:38.practitioners, advocated in particular by attorneys? Very
:02:39. > :02:43.little is being done for empowering women. Is that not your job?No.
:02:43. > :02:46.You are at the top of the tree. job is not to give jobs to the
:02:46. > :02:56.attorneys. My job is to give work to the advocates who will give work
:02:56. > :03:02.to the attorneys. They can be worked to the advocates. How is
:03:02. > :03:05.this going? Very slowly.On the other hand, the system is also
:03:05. > :03:08.being attacked by those who say the system that appoints the judges has
:03:08. > :03:13.been overlooking some very well- qualified white candidates to fast-
:03:13. > :03:19.track some less qualified black candidates. I do not understand
:03:19. > :03:22.that argument. There seems to be a perception that has been
:03:22. > :03:24.popularised that whenever certain people say that you are the best
:03:24. > :03:27.advocate, you are an ideal candidate for judicial appointment,
:03:27. > :03:37.what the system must do is bow down their head and understand your
:03:37. > :03:40.
:03:40. > :03:44.preference. Like a rubber stamp. We do not do things that way. We
:03:44. > :03:47.question every candidate who comes in front of us. At the end of the
:03:47. > :03:56.day, it is not the decision of the public opinion makers that
:03:56. > :03:59.recommends the chairman. Does that mean that you are convinced you are
:03:59. > :04:07.getting the best person for the job, bearing in mind the constitutional
:04:07. > :04:11.commitment to equality? You need more women, for example. Definitely.
:04:11. > :04:14.I need women just as women are needed in the UK. I was humbled to
:04:14. > :04:17.realise in my interactions with colleagues that we have made more
:04:17. > :04:26.progress than the UK, which has never been repressed by anybody for
:04:26. > :04:31.many years, has made. The UK may be very slow at this. People need to
:04:31. > :04:37.take that on the chin. Two out of the 11 members of the top courts
:04:37. > :04:46.are women. That is not good enough if you're promising equality.
:04:46. > :04:50.out of 12 in the UK. Supreme Court judges. Not enough. You have a
:04:50. > :04:55.constitutional commitment to it. Absolutely. I don't need to be
:04:55. > :04:58.pushed to do it - it is something I want to do. It will take years. It
:04:58. > :05:03.will take some time. Do you see a parallel between the lack of black
:05:03. > :05:06.lawyers at the top under apartheid and the lack of women now? In other
:05:06. > :05:12.words, you lose something from a system if you do not reflect the
:05:12. > :05:14.society as it is. It is true in Britain, too. Until such time that
:05:14. > :05:18.there is proper representation of both women and black people, even
:05:18. > :05:28.in the upper echelons of the judiciary, there is still a lot to
:05:28. > :05:31.
:05:31. > :05:34.be done. People have the right to complain. Until then, people have a
:05:34. > :05:37.right to complain about the lack of progress. There are those who
:05:37. > :05:40.complain about your appointment, to get personal. You have had to take
:05:40. > :05:46.that on the chin, haven't you? Presumably you would like political
:05:46. > :05:49.consensus? It is not there. Many think it is a defective process.
:05:49. > :05:53.disagree with them. More importantly, asking about the
:05:53. > :05:59.strides I have made from the time of my appointment up until now,
:05:59. > :06:02.just under two years. Ask her to question my judgement writing
:06:02. > :06:12.ability, the sort of judgements I have written, and the efforts I
:06:12. > :06:14.
:06:14. > :06:19.have made to strengthen the independence of the judiciary. I
:06:19. > :06:23.have also dedicated traditional offices. Do you regret that this
:06:23. > :06:28.has become politicised? People say yours was a political appointment.
:06:28. > :06:32.If there is opposition to it, it has become politicised. You would
:06:33. > :06:37.not want that. I do not regret it. I think it is demonstrative of the
:06:37. > :06:47.vibrancy in South Africa. You will not always find South Africans
:06:47. > :06:49.
:06:49. > :06:53.agreeing on everything. It is healthy debate. I do get concerned
:06:53. > :06:56.when people perpetuate stereotypes in total disregard of the facts.
:06:56. > :07:03.Let me put something which comes from one of your supporters which
:07:03. > :07:06.also points out the difficulties in this for this debate. You say it's
:07:06. > :07:09.a vibrant and vociferous debate. The Secretary General of the EU
:07:09. > :07:11.suggests that there was hostility between the judiciary and the
:07:11. > :07:14.Government which is undermining the government. He says you cannot have
:07:15. > :07:18.a judiciary which seeks to undermine the government. Is that
:07:18. > :07:25.what is happening? No. We are committed to observing separation
:07:25. > :07:27.of powers. Whenever we believe that any legislation, policy or conduct
:07:27. > :07:37.is inconsistent with the constitution of South Africa, we
:07:37. > :07:38.
:07:38. > :07:44.must ensure that the constitution which is supreme law prevails. He
:07:44. > :07:47.was speaking before your appointment. There are those who
:07:47. > :07:55.say you have been appointed to make it less critical of the executive
:07:56. > :07:58.and the Government. Trying to bring them more into line. I think it is
:07:59. > :08:03.an insult to the South African judiciary to suggest that. In the
:08:03. > :08:08.first place, one must look at the structure of the judiciary. Judges
:08:08. > :08:14.are insulated from being manipulated by anyone. Be that the
:08:14. > :08:17.legislative, the executive, the media or big business. I do not
:08:17. > :08:24.know what possibility exists for me to control 2000 judicial officers
:08:24. > :08:33.in my country single-handedly. They have to provide facts and present
:08:34. > :08:37.them rather than rely on suspicions. They are damaging remarks. So when
:08:37. > :08:39.remarks are made they are damaging? When remarks are consistently made
:08:39. > :08:49.that are unsubstantiated, remarks that undermine the confidence the
:08:49. > :08:55.
:08:55. > :08:59.populace must have in the judiciary, it harms our democracy. TUC this
:08:59. > :09:05.example. One man said you were part of Jacob Zuma's attempt to control
:09:05. > :09:12.the judiciary. Based on what? Do not accept lazy accusations that
:09:12. > :09:16.are not based on anything. This is important for us up Africans. South
:09:16. > :09:22.Africans must accept facts.. Something which is causing great
:09:22. > :09:26.concern is the reputation for violence towards women. The country
:09:26. > :09:31.has been called the rape capital of the world. However you judge it,
:09:31. > :09:34.there are certainly too many rapes in South Africa. Amnesty
:09:34. > :09:44.International has said that the level of violence against women is
:09:44. > :09:44.
:09:44. > :09:47.shameful. I agree.What can you do about it? For starters, it is
:09:47. > :09:50.necessary that the entire justice class is challenged to look at new
:09:50. > :10:00.ways of assuring that we are effective in dealing with violence
:10:00. > :10:01.
:10:01. > :10:08.against women. One of the measures that is being implemented in
:10:08. > :10:11.response to what the judges resolved should be done in 2011.
:10:11. > :10:14.That is the establishment of more sexual offences courts.
:10:14. > :10:17.Additionally, I asked all the departments and units within the
:10:17. > :10:19.justice cluster that we form a body, that has since been formed on 13th
:10:19. > :10:28.October, 2012, It is called the National Efficiency Enhancement
:10:28. > :10:38.Committee. We will find solutions to get there without compromising
:10:38. > :10:45.
:10:45. > :10:48.anyone's constitutional independence. What Amnesty
:10:48. > :10:53.International said in the report last year is that there is a
:10:53. > :10:57.climate of impunity for crimes of sexual violence. The statistics are
:10:57. > :11:02.that one woman in South Africa is raped every four minutes. One third
:11:02. > :11:09.of female graduates has been raped. Just over one-third of men admitted
:11:09. > :11:12.they had raped a woman. You accept that is shameful. The suggestion is
:11:12. > :11:18.that it is not being taken seriously enough by the courts or
:11:18. > :11:20.the police. I am saying that in recognition of the magnitude of the
:11:20. > :11:30.problem, we have set up a committee in which performance-related
:11:30. > :11:32.
:11:32. > :11:41.problems will be highlighted and suggestions will be made. I can
:11:41. > :11:44.give you an example with the police. This is what we said at the last
:11:44. > :11:46.meeting. You have got to make sure that police increase the
:11:46. > :11:49.investigating capacity that they have. Let the investigators be
:11:49. > :11:51.empowered and let them attend more refresher courses so they are more
:11:51. > :11:59.efficient and effective in carrying out their responsibilities,
:11:59. > :12:07.including investigating crimes against women. Have you changed as
:12:07. > :12:11.you have grown into this job? Over the past few years. At the start
:12:11. > :12:15.you said you were criticised by a lot of people - that including
:12:15. > :12:21.three female women in the Nobel Initiative. They said that your
:12:21. > :12:24.rulings as a judge had undermined the prosecution of the crimes.
:12:24. > :12:32.was able to demonstrate just how biased those who were critical of
:12:32. > :12:42.me were. They relied on three judgements when there were many
:12:42. > :12:44.
:12:45. > :12:54.judgements which showed that I did better. I was strong and fair. They
:12:55. > :12:57.were judgements to ensure that I didn't get appointed. This is for
:12:57. > :13:00.the view was not familiar with this. In 2004, you reduced the life
:13:00. > :13:03.sentence of a man convicted of raping a seven-year-old girl from
:13:03. > :13:06.life to the minimum. You suggested the man had been tempted because
:13:06. > :13:10.she was wearing a nightdress and pants. In another case, you said a
:13:10. > :13:17.man who raped a 14-year-old girl must have been mindful of her age
:13:17. > :13:20.and was careful not to injure her private parts. He said just
:13:20. > :13:24.accidentally. You can see why people might find those judgements
:13:24. > :13:27.objectionable. If Manchester United loses three games and you say it is
:13:27. > :13:35.a bad team, that is equivalent to that type of judgement. You cannot
:13:35. > :13:38.ignore the other judgements that the three might have given rise to.
:13:38. > :13:41.They refute those perceptions. If you are determined to stigmatise a
:13:41. > :13:45.person, you can look at little dots that might provide you with
:13:45. > :13:51.material for running him or her down. There is no merit in such
:13:51. > :13:54.criticism. No substance. I dealt with it thoroughly during my
:13:54. > :13:57.interview. I challenge anyone who was opposed to my appointment on
:13:57. > :14:07.the basis it would do harm to the judiciary to demonstrate what harm
:14:07. > :14:17.
:14:17. > :14:21.It is about perception. It is about being seen to take things seriously.
:14:21. > :14:25.You have got to look at the totality of the judgments. You
:14:25. > :14:28.cannot just isolate those you want and judge a person on the basis of
:14:28. > :14:38.those. Otherwise you would just take the 20% failing students and
:14:38. > :14:41.
:14:41. > :14:44.ignore the be 80% who passed. I refer to the judgement of the
:14:44. > :14:49.Supreme Court of Appeal, which was a judgement higher than the higher
:14:49. > :14:52.court of which I was operating. People refused to see that. Some
:14:52. > :14:57.people would say comparing it to passing examinations or football is
:14:57. > :15:04.still not taking it seriously enough. Compared to the judgement
:15:04. > :15:12.of other judges. It is still a live issue. If you're determined to find
:15:12. > :15:17.fault and refuse to see facts, it will forever be a live issue.
:15:17. > :15:23.mayor of Cape Town called you an apologist for rapists. Because of
:15:23. > :15:29.the three judgments again. Why is she and others refusing to see all
:15:29. > :15:33.other judgments? Do you think you have developed, that you have
:15:33. > :15:36.changed, as you have listened to the criticism? You are clearly
:15:36. > :15:39.annoyed by it, but have you changed personally and are you more
:15:39. > :15:47.sensitive to the ways that people, particularly women, feel towards
:15:47. > :15:50.this crime? I have been sensitive and I am open to education and I
:15:50. > :16:00.appreciate it even more just how careful one must always be in every
:16:00. > :16:05.
:16:05. > :16:10.statements you make, irrespective of where you are. Do you regret
:16:10. > :16:13.anything about the way you phrased it? In the context of the facts
:16:13. > :16:21.that were before me, I do not regret anything, but I have learnt
:16:21. > :16:24.from the criticism. I cannot claim the phrases were perfect. I can say
:16:24. > :16:32.that I was being insensitive and feeding into the impunity against
:16:32. > :16:35.violence towards women. We began talking in this conversation about
:16:35. > :16:39.how South Africa measures up to the great hopes that Nelson Mandela and
:16:39. > :16:42.others had for your country. I just wonder how you feel the Protection
:16:42. > :16:47.of State Information Bill, also known as the Secrecy Bill, feeds
:16:47. > :16:50.into that? A lot of people think that is to stop people embarrassing
:16:50. > :16:58.the Government by printing details of corruption and things which
:16:58. > :17:06.would otherwise be hidden. Many take the case to challenge the
:17:06. > :17:12.constitutional validity before the courts. It would be inappropriate
:17:12. > :17:16.for me to make any comment whatsoever on that bill. It could
:17:16. > :17:21.end up having to be... It is coming. It will come? So therefore you
:17:21. > :17:24.cannot talk about it? Not specifically, can you talk about
:17:24. > :17:31.the worries that there are restrictions on what people can see
:17:31. > :17:38.and read and hear in the media in South Africa? In a free, democratic
:17:38. > :17:41.society, that is difficult. What I am prepared to say is I am fully
:17:41. > :17:44.committed to ensuring that freedom of expression, freedom of the media,
:17:44. > :17:47.is promoted and I will continue, as I am duty-bound to do, to do
:17:47. > :17:55.everything within my power to support the enjoyment of the
:17:55. > :18:02.constitutional rights. Can we talk a little about your personal
:18:02. > :18:05.journey? When you were a kid growing up in a South Africa where
:18:05. > :18:08.presumably you thought there wasn't much justice for people of your
:18:08. > :18:18.race, did you ever think you would become chief justice of South
:18:18. > :18:18.
:18:18. > :18:21.Africa? I had a sense that I was going to play a meaningful role in
:18:21. > :18:24.South Africa and I was looking forward to being able to make
:18:24. > :18:26.whatever little contribution I could get to make the lives of both
:18:27. > :18:29.black and white South Africans better and contribute towards
:18:29. > :18:39.reconciling the damaging and highly negative relationships that we had
:18:39. > :18:47.
:18:47. > :18:50.at the time. But Chief Justice? No. You are a religious person and I
:18:50. > :18:58.have read that you were told that there was a prophecy that you would
:18:58. > :19:01.get this job. Did you believe that? Of course I did. Why?Whatever
:19:01. > :19:08.religion you subscribe to, when you are sure in terms of your religion
:19:08. > :19:13.that your God has spoken, you believe that. Did God speak to you
:19:13. > :19:18.and say you would get this job? prophet. I spoke to a prophet.
:19:18. > :19:23.told you?. In fact, a number of prophets. People have tried to make
:19:23. > :19:33.a mockery out of it. It is my faith. South Africa recognises freedom of
:19:33. > :19:33.
:19:33. > :19:36.religion. It is unfortunate that people mock the religion of others.
:19:36. > :19:41.Nothing that people say will cause me to depart from my faith.
:19:41. > :19:49.Nothing? Nothing. It is my constitutional right and I am
:19:50. > :19:57.enjoying it. We have talked about how far South Africa has travelled
:19:57. > :20:00.in the past 20 years. Where do you see it in the next decade? You
:20:00. > :20:08.speak to a lot of people that were disappointed about the poor, the
:20:08. > :20:12.fact that black people do not have land that they could perhaps have.
:20:12. > :20:19.They are disappointed about the low wages that many people have. Are
:20:19. > :20:23.you disappointed by that? I wish that we could do more faster. It is
:20:23. > :20:25.for this reason that through our judgments we do our utmost best to
:20:25. > :20:35.make sure that life is breathed into the constitutional rights of
:20:35. > :20:37.
:20:37. > :20:40.the people. Do you see that South Africa, the real moment of maturity
:20:40. > :20:50.of South Africa will be when there was a peaceful transition from the
:20:50. > :20:53.
:20:53. > :20:56.ANC government to some other party? That is when a country really grows
:20:56. > :21:00.up as a democracy, there is a peaceful transition to the people
:21:00. > :21:03.you do not want in power. I do not look at things that way. I think a
:21:03. > :21:06.lot of progress will be made as we continue to challenge one another
:21:06. > :21:14.about the limited extent to which some of us appear to be delivering
:21:14. > :21:17.services that they are expected to deliver. As I continue to do more
:21:17. > :21:24.and encouraging those in allied institutions to do more I think
:21:24. > :21:29.South Africa will change. Does it anger you, the slowness of it all?
:21:29. > :21:32.Anger is not the word. I do get disappointed at times, but whenever
:21:32. > :21:39.I get disappointed, I say to myself, "What is it I can do instead of
:21:39. > :21:43.pointing fingers at others?" As we are speaking, Nelson Mandela, a
:21:43. > :21:46.great hero to your country and around the world, is coming at some
:21:46. > :21:51.point to the end of a long and extraordinary life. I wonder what
:21:51. > :22:01.your thoughts about him are? have just indicated that I am a
:22:01. > :22:02.
:22:02. > :22:05.Christian. I pray for him. He is quite a unifying force. I hope that
:22:06. > :22:08.the memory of his sacrifice and the efforts that he made to unify our
:22:08. > :22:18.country will be forever living in our consciousness as South Africans
:22:18. > :22:32.
:22:32. > :22:35.whenever we feel constrained along racial lines. People will remember
:22:35. > :22:38.the rainbow nation and also his sacrifice? They will remember his
:22:38. > :22:46.humility and remember when he was willing to subject himself to the
:22:46. > :22:50.court proceedings, being subpoenaed by a judge to come and testify. He
:22:51. > :22:53.did not try to pull his weight. I think he was constitutionality
:22:53. > :23:03.epitomised and I hope that all South Africans will remember that
:23:03. > :23:05.
:23:05. > :23:08.and seek to follow in his footsteps. What is his great achievement,
:23:08. > :23:12.unlike other leaders in Africa, he gave up power. Yes. Absolutely. He
:23:12. > :23:15.had a succession plan. Finally, if he looks around South Africa today
:23:15. > :23:25.and looks at his legacy, do you think he would be pleased about
:23:25. > :23:26.
:23:26. > :23:30.where you are or would he be critical? Would he give you a hard
:23:30. > :23:33.time in some of the areas we have been talking about? I think once he
:23:33. > :23:37.gets to know all that I have done, he will have a reason to be
:23:37. > :23:39.encouraged. He will have a reason to be consoled that at least there