Mogoeng Mogoeng - Chief Justice of South Africa HARDtalk

Mogoeng Mogoeng - Chief Justice of South Africa

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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


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