Mogoeng Mogoeng - Chief Justice of South Africa HARDtalk


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Mogoeng Mogoeng - Chief Justice of South Africa

Interviews with newsmakers and personalities from across the globe. Gavin Esler speaks to South Africa's Chief Justice, Mogoeng Mogoeng.


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

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

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

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transformative and guarantees equality and human rights. Despite

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

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to the promise. The legal system which guarantees the constitution

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

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

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

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

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

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

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

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

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

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

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charge of the economy channel their instructions and beliefs to white

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

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

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instruction giving pattern or the briefing pattern. There is very

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little that is being done to empower women and black

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practitioners, advocated in particular by attorneys? Very

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

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

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

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

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

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

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

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track some less qualified black candidates. I do not understand

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

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popularised that whenever certain people say that you are the best

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advocate, you are an ideal candidate for judicial appointment,

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

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

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

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

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

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

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

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

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realise in my interactions with colleagues that we have made more

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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disagree with them. More importantly, asking about the

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

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

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

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have made to strengthen the independence of the judiciary. I

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have also dedicated traditional offices. Do you regret that this

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

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

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

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

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

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when people perpetuate stereotypes in total disregard of the facts.

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

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

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

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suggests that there was hostility between the judiciary and the

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

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a judiciary which seeks to undermine the government. Is that

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

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

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is inconsistent with the constitution of South Africa, we

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

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was speaking before your appointment. There are those who

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

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

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

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

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are insulated from being manipulated by anyone. Be that the

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

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know what possibility exists for me to control 2000 judicial officers

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

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

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

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that are unsubstantiated, remarks that undermine the confidence the

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

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

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

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

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Africans must accept facts.. Something which is causing great

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concern is the reputation for violence towards women. The country

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

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there are certainly too many rapes in South Africa. Amnesty

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International has said that the level of violence against women is

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

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

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ways of assuring that we are effective in dealing with violence

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

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

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That is the establishment of more sexual offences courts.

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Additionally, I asked all the departments and units within the

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

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October, 2012, It is called the National Efficiency Enhancement

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Committee. We will find solutions to get there without compromising

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anyone's constitutional independence. What Amnesty

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

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

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

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

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

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

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

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

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

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

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

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investigating capacity that they have. Let the investigators be

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

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efficient and effective in carrying out their responsibilities,

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including investigating crimes against women. Have you changed as

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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accidentally. You can see why people might find those judgements

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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people would say comparing it to passing examinations or football is

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still not taking it seriously enough. Compared to the judgement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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that I was being insensitive and feeding into the impunity against

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violence towards women. We began talking in this conversation about

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

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

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

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

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the Government by printing details of corruption and things which

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

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constitutional validity before the courts. It would be inappropriate

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

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

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

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the worries that there are restrictions on what people can see

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

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

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

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

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everything within my power to support the enjoyment of the

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constitutional rights. Can we talk a little about your personal

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

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

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

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

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

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

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black and white South Africans better and contribute towards

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reconciling the damaging and highly negative relationships that we had

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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make sure that life is breathed into the constitutional rights of

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

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

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

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

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

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

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

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

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and encouraging those in allied institutions to do more I think

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

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

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

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

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

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

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

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

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

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country will be forever living in our consciousness as South Africans

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whenever we feel constrained along racial lines. People will remember

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

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

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

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

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epitomised and I hope that all South Africans will remember that

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

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

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

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

:23:15.:23:25.
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where you are or would he be critical? Would he give you a hard

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

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

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

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Since the end of apartheid, almost 20 years ago, South Africa's Constitution has become one of the most admired in the world - progressive, transformative, guaranteeing equality and human rights. But despite the great strides the country has made, the reality is failing to live up to the promise. The legal system, which guarantees the Constitution, has itself come under fire from within the government, the opposition, and from some human rights groups. Gavin Esler speaks to South Africa's Chief Justice, Mogoeng Mogoeng.