Dikgang Moseneke: Unlikely tale of a 15yo jailbird to Deputy Chief Justice.

Many South Africans were surprised when the Constitutional Court lashed President Jacob Zuma over misappropriating funds for his personal homestead. They shouldn’t have been. With a few exceptions, the quality of SA’s political leadership might has fallen a great deal in recent years, but its judiciary remains strong. Especially at the highest court in the Constitutional Democracy where standards set by the likes of former Deputy Chief Justice Dikgang Moseneke are proudly maintained. Last month Moseneke published his autobiography, affording an insight into the difficult path walked by this sensible, honourable man. Our Biznews colleague David O’Sullivan was riveted by the book, especially the section where a 15 year old Moseneke was arrested for being a member of the Pan African Congress, then a banned political organisation. The author elaborated when appearing as a guest on O’Sullivan’s Hot 91.9 show. – Alec Hogg

Deputy Chief Justice Dikgang Moseneke with Chief Justice Mogoeng Mogoeng during a special session to mark the retirement of the Deputy Chief Justice. (Photo: GCIS)
Deputy Chief Justice Dikgang Moseneke with Chief Justice Mogoeng Mogoeng during a special session to mark the retirement of the Deputy Chief Justice. (Photo: GCIS)

Veteran broadcaster David O’Sullivan kicked off his interview with Deputy Chief Justice Dikgang Moseneke by tapping into his youthful political awareness which led to him being on trial in court as a 15 year old…So were you precocious in that you were so politically aware at such a young age?

I must have been, but let me say that it wasn’t too difficult, was it? I write about it in the book. Just when I gained awareness, you know just like standard 5, standard 6…I looked around and my sense of what was fair and unfair just came up. And I write in the book about how strong it is normally in young people and I test it often with my grandchildren. I give them one sweetie, two, three sweeties and five sweeties and you hear the rumbling: “Grandpa, why does she get five sweeties when I get one. What about me, I got only three.” Young people tend to have a very innate sense of fairness and mine was quite strong. It must have come from my earlier upbringing, and I looked across and I could see that the fields were greener. I could see those rugby poles were better than ours. The soccer fields, the cricket fields, the schools were better, the residential areas were better, I could see the distinction, it did not escape me as a young person and I hated it. I don’t know why but I just did not, and I think that my grandfather and my grandmother, and I hope that I write about them with great love in the book, they were salt-of-the-earth people but they had a deep sense of their wholeness as human beings. You know the self-respect, their self-worth, and those must have rubbed off on me quite early. So unless there was some explanation, let me understand let me understand the differentiation.

David O'Sullivan
David O’Sullivan

But even your comrades within the organisation, did they not look at you and say “It’s time to grow up Dikgang, we can’t have a 15 year old here”.

Yes sure but this was a school movement. You know school movements – we are in high school, you know Standard 8, Hofmeyr High School in Attridgeville, so at that time you all feel heroic and you look around and you start reading history and you see the whole trajectory of colonialism, you know the Great Trek, you know the first bridge occupation, the second bridge occupation, all this stuff, frontier wars, those things were taught at that time but I don’t think the architects of Bantu education understood that in fact people read a lot behind that, and teachers were good, they were strong. I talk about my primary school teacher in the book, a guy who used to come up in assembly and say “You my children are not chickens, you are eagles, you must take off and fly high. Eagles must fly into the sun without much bother because they are built for hard things and for high things”. So I talk about this a little bit in explaining why all that must have rallied me to the big bust, Sharpeville. When Sharpeville happened, I was – what? Twelve, thirteen? and I hated to see dead bodies lying in pictures on the front page of Bantu World, or the World at that time, and I just hated it. I wondered why they were shot. All of that stayed with me, so by the time I was fifteen in 1963, I think I had made up my mind that I was going to do something to free myself.

Was it because the PAC was involved in the protest in Sharpeville that attracted you?

Yes, without a doubt. I spent time in the book trying to explain that. That it is essentially about African humanism, it’s about Ubuntu, it’s about taking charge of your life and accepting the responsibility to free yourself. I remember Robert Sobukwe’s stance was – leave the passes at home, let them do their damnedest, but don’t collaborate with your own oppression. And that made sense to me. It continues to make sense now.  If something went wrong in my task as a judge that comes before me, I immediately weigh the fairness of it all, public interest and what the law requires and anticipates. So in many ways the foundation was that you can’t outsource your duty to be a free man or a free woman. It is something that you have to engage with and you have to assume personal agency, with comrades’ collective agency. But it’s something that you cannot escape and it was quite big. Which was why at that young age I thought I must join the PAC’s student movement, it was called ASUZA. And then of course the ANC was an afternoon tea party movement frankly. You know the boys and girls who really wanted to see a programme of action that would lead to freedom were the PAC.  And their slogans were not difficult. They said something like “freedom in our lifetime. Now that is a big call to action – freedom in your lifetime – it means that you have to remove the Nationalist government. It really meant that you have to decolonise your circumstances. So that was a call that impressed me I must tell you, and the thoughtfulness of Sobukwe stayed with me, and I write a bit about his thoughtfulness, his intellectual leadership, and he saw more than just apartheid as the problem. He saw, he tended to look at the state of the whole continent and the fundamental things that ought to be done, again with personal and collective agency to change our circumstances.

Let’s talk now about your going on trial. You speak about it, you write about it vividly. When you were writing the book, were you able to take yourself back to being that fifteen year old boy who surely was terrified by an experience such as that.

I was scared, very scared. You get arrested, fifteen cars, sirens, what else, you know cops kicked in the doors and got you out while you were snoring. Throw you into a single cell, 90 days detention – you remember – those olden days, the law allowed it, for 90 days you see nobody but police so in that 90 days they can do everything and anything they want.

You were completely brutalised, you were beaten up. You were fifteen. I can’t get that out of my head.  What was that experience like?

Oh, it was horrible. I described with great detail in the book how on the first day they beat me to pulp and said “you see my boy you actually can’t just overthrow this government, you are fanciful. And we know you are a little clever lad but I mean no, sorry, you can’t do that” and the big joke which I write about, which I remembered even then is this big black security cop walks up to me and says “you little miserable thing, look at you, you think you can overthrow white people. You can’t even make a bicycle when they make aeroplanes that fly high in the sky. Stupid man, it is a brainless bloody plot you people have”. And I remember it many years later with quite a smile on my face the simplicity of Sergeant Matyeni thinking you can’t make a bicycle. I thought possibly I can’t make a bicycle so the aeroplane is quite out of reach, isn’t it. But the point was this. I was very afraid, I was alone, all the family support I grew up with – mother, father were still together so I had a fairly solid support. Mother and father and teachers.

But nobody had access to you. You did not have that support at that time?

Zero.

You were alone?

Totally alone and I had cause to be very fearful. And I tell you how, basically they come back to me every time and say “you think you are holding out, look at what X has said, Y has already told us about how you were stirring up at meetings of young students, and how you can and you must overthrow the government. You are in trouble, my boy, you are going to hang”. The spectre of the death penalty was hovering right there, even in solitary confinement.

You went on trial and did not have legal representation. How it was that you ended up in the dock without lawyers to assist you?

We had the best around us. Sydney Kentridge QC together with Ivor Swartzman and even when they withdrew for very good reasons, they say they were in the hands of the police for three months, they had time to prepare. We need time to prepare, we need at least a month to consult with them what their defence is. So that really meant that Sydney could not do his work professionally. When we came to know each other thereafter and my admiration continued and he reciprocated the admiration and gave me an award called the Sydney and Felicia Kentridge Award, and he still writes to me by hand and says to me “with much affection, Sydney”. So he could not defend me at the time Jack Unterhalter came, and I list all these eminent counsel who came out there and he would just not give them a postponement. And on one fateful day he said, bang, 2 o’clock we are going on. I’ll have none of these Johannesburg communist advocates coming here to push me around in my court and the trial started without a defence. Let me tell you, that left a lasting impression on me because I had to do my first cross examination. It started at 8:30 and I just did not know where to start. All of us only remember the phrase “I put it to you that that you are lying. I put it to you”. So we were all putting and putting nothing to the witnesses. The judge came to me and said “It’s tragic that you might have had a wonderful future.  But you are a bad little laddie. Ten years imprisonment!” Bang!

There is a very emotional part where you write about Judge Cillie saying “is there anybody to plead in mitigation” and your father stands up at the back of the court. That’s a big moment?

It was a big moment, a searing moment. I explain how we had all steeled ourselves up, now that we had been put together into the same cells and freedom songs and you know “Comrades, we are ready for this fight” and the take was “no pleading”. How can you plead with your oppressor? You know they are going to jail you anyway, so if you go on your knees, and the tradition has been set down over the years, the treason trial of the 1960 PAC leaders who were tried in the pass campaign and so on, Nelson Mandela was tried and given five years. You don’t plead in a political case because, you know, it is an illegitimate government and my dad stands up and wants to plead. I almost want to put my head under the table and he goes on and does his thing.

He must have gone through so many traumas of his own, standing there knowing that you had been so viciously assaulted, you were only 15 years old. Physically what did you look like, were you a scrawny little kid?

Ja, quite tiny, yes of course. And what made it worse of course after 90 days of detention there was no big fridge that you could clean out so you were gaunt and really terrified and of course here comes Mrs Hain.

Peter Hain’s mom. She was in court all the time and you are looking around and there is this strange white woman.

Yes, a young woman, not much younger than my mother. And my mother was a young woman then, still in her early 30s, they were young women thinking back, and Mrs Hain, same age as my mother, Black Sash lady comes in there and that’s where my commitment to non-racialism really came, I mean in a real lived experience. Stereotypes are easy. If you are white you are an oppressor, you are racist. If you are black you are good and morally on a higher plain. And here she was, every day she came and she brought soup. The trial was in winter, fresh buns and I end up of course with that story of the big slab of chocolate that I put in my top pocket on the very day of sentencing. She asked me what I could like and I said chocolate would do, Mrs Hain. And she said “you’ve got it” and bought the biggest Cadbury’s chocolate, broke it up and shared it with all my other comrades a little bit, but the biggest piece I kept, I put in my pocket and Judge Cillie said “ten years imprisonment”, it melted all over my shirt, it was just the heat coming through and there I was and I just fell in love with her at a time when the easier course for her was what? Calling us terrorists, just castigate them, they are baddies, or just turn a blind eye to it. This was not her. She would come there every day and I arrived with about half of the security cops, who would say “this white bitch, what the hell is she doing?” The Hains had to take an exit permit, they had to run out of there.

Yes, they were both banned. There is a lovely sequel when you encounter Peter Hain much much later in life and he is doing a documentary and you asked after his mom.

Yes, I do, and it was just a wonderful moment. I write about it there. Peter and I became quite tight and together and began talking about the campaign against the Boks and against our cricket team and the fun he had then. But that’s what brought us together with Peter, an activist mother and he goes out and does his thing. We go apart I’m going to London with a book, his father died two or three days ago. His mother Mrs Hain is still alive and I want to get on a plane and just go to her and hug her and give her a nice kiss and say thank you ever so much. She is all over in the book, but as an act of love, as an act of courage.

But what I enjoyed was that when you said to Peter Hain “how’s your mom” he said “she’s very well, here’s your chocolate”.

Yes, he must have heard from his mother about the smudging chocolate that went right down my shirt as I was hauled by the police and thrown into the van and he came back and he said “ja, here is your chocolate”.

robben_island

You then went to Robben Island and were brutalised already, thrown down the stairs on the boat, encountering the viciousness of those guards. I have read so many books by prisoners, particular Indris Naidoo’s Island in Chains where he writes with a starkness about the brutality. You did not write about it. It was clearly hard, it was clearly brutal, but I felt that you did not write as much about the brutality as you could have. Is that deliberate?

Yes, because I really found ways to ride over it. Mine is a story I think of victory, of good over evil. Remember where I say that ultimately they had our bodies there but in fact we just rose above the immediate physical restraints and you convert that place into something else, into something entirely different.  Intellectually and as well as indeed emotionally our intelligence went much higher than these poor prison warders who had to sit around, a little terrified, with guns by their sides and try to give us orders. And they were young, many of them, so in many ways we managed to go above the immediate physical trauma and challenge.  And I wanted to, and I saw it always as us being on the winning side of this dual. Terrible as it was, and of course it led to the 18 day hunger strike, with enormous pain to really free the place, taming this wild beast. Their mindset was “terrorists, beat them down, break them”. And we had to say but we have some level of moral righteousness, that’s not the right word, some level or moral plain, we are entitled to claim are freedom, we are entitled to embrace a non-racial stance which would include all human beings. We constantly asked the question that you will have seen in the book, what are the features of a just society? And that stayed with me and became part of me, even when I stepped into the robes to become a judge, I have always felt quite strongly that we are entitled to try and recreate society and move from that dark space into a better lit up space and surely improve the lives of people.

It seemed to me that you, more than most, were able to make the best out of the situation. Now I don’t want to minimise how hard prison life can be, the brutality that occurred, but you managed to finish your secondary education and then you got yourself two degrees. When I work out how long that would normally take anybody, it would probably be ten years. So when you emerged from prison, you did not have to re-start your life. You’d managed to keep pace, but I would imagine that prison does leave enormous scars. Am I right? Are there still scars that you bear from that prison life?

Nelson_MandelaScars there should be. What we do with them is really what matters and that in so many ways makes people like Nelson Mandela so heroic. My grandmother used to say “You know son, you will hit horrible patches in life. You are less than human if you don’t have the capacity to soak up pain, to soak up difficult movements and then move on.” Now this sounds tired, it sounds hackneyed, everyone must have heard that at some time or another. But it was so real, it became part of my lived experience. I knew that I hit a rough patch, there was turbulence that might lead to a disaster. And I say in the book that I know I was lucky. I was younger, I was healthy, I had no wife, and boys of 15 did not have regular girlfriends yet, you know you have a bit of love but girls of 15 are much smarter than us at 15 you know, you are not going to get lucky then. It takes a little longer than that. So no regular girlfriend, my parents were young, so I acknowledge those advantages. I was there with our now President Jacob Zuma, and his circumstances were certainly different from mine and for me going to school every morning was a given. My father was a teacher and you duck school one day and you are dead. That did not even dawn on me some day to go AWOL or something, so it was almost like DNA that you were going to get on and study so I recognise those advantages.

So there is no resentment, I feel, when I read the book. There is no resentment or bitterness about the fact that ten years of your life was spent behind bars. Is that because you were able to invest in your brain?

I often speculate what would have happened. I say in the book I would probably have become a doctor. I was an A student in standards 6, 7 and 8 in mathematics and science, so probably being a doctor is the path I would have taken. And I explained why doctors were ‘the’ people in town. They had the prettiest cars and the prettiest wives and the prettiest children – you know “your daddy’s rich and your mommy’s good looking” kind of thing. So that would have been the route for me to take. And it could have been different. I could have gone to varsity and become a drunk, probably sniffed one or two things and just lost my way. So Robben Island made sure that that did not happen for starters, that I would have ample time to study and that I had a chance to be preserved for longer than I might have been otherwise. Everything that I could take would be much later, be it booze, be it whatever, so in an ironic way I was quite well preserved physically and my mind was grown and developed quite substantially. Not many young lads can go out and read War and Peace and take on Tolstoy. You are not going to find young people going for Grapes of Wrath and read it, or even Jane Austen only because it was prescribed, or Charlotte Bronte, or D H Lawrence, or go and read Shelley and poetry, or Things Fall Apart by Chinua Achebe. And all those theoreticians about colonialism and Pan Africanism like George Padmore and W.E.B. Du Bois. In the book I show you just what a great space it was suddenly, which I never would have had, if the truth be told, if I had just stayed in the township.

When it came to CODESA, did you find yourself almost a reluctant participant because you were a very successful advocate at that time and you had really been able to avoid becoming a politician. Yet you were thrust into the milieu there because of your expertise. Tell me about your time at CODESA.

Sure, when I was at CODESA, I was appointed as an independent expert. I was in the technical team that wrote the interim constitution. I had resigned from the PAC nearly two years by the time they got down to the transition, which lasted for four years. I joined midway around the summer of 1991. I think when I resigned and then I had made up my mind quite clearly that I was not going to pursue a career of politics and I spend some time in the book explaining the difference I see between a freedom fighter, a liberator on the one side and a politician. Politicians are moved by a desire for power, public power, and retaining the power and they do all sorts of things, and expediency is supposed to be the art of the possible is it not? So expediency comes in and suddenly principle goes down the drain. And yet there are dreamers like me who are cherishing and hoping for an idealised society which really in earnest seeks to open up and permit full accomplishment of people through their efforts and through collective arrangements. So I had made up my mind, but I knew I was a good advocate. I became a senior counsel against all opposition in a racist South Africa. My Letter Patent were signed by F W de Klerk.

And the irony was not lost on you?

It wasn’t. I couldn’t vote but I could enjoy the status of rising in court and be accorded that importance by my colleagues and the court. So I knew at that point that I did not have to be a back bencher in parliament. I would rather pursue a rigorous role as a lawyer. We were writing the text in order to represent the agreement in the multi-party negotiating chamber. So I did not have to bat for anybody, I did not have to have a side, and all had to approve of the team that I was going to write with. So I enjoyed the support of all the parties. Baba Buthelezi, I built a relationship with him. So I always enjoyed his trust and he features quite a bit in the book. F W de Klerk knew who I was. He signed my Letters Patent – it was this darkie from Pretoria who can be a senior counsel, you know that kind of thing. Mr Mandela has asked to carry on to the committee, so I was nominated actually by the ANC to get on to the committee.

So it wasn’t a party political thing was it? It was about expertise?

They wanted eight lawyers who would write the constitution, to convert political compromises into legalise.

So that election period when we were voting in 1994, that was also a tumultuous time for you. And you write about that in great detail, trying to get the IFP on board. Going to see Lucas Mangope. What a time that was. So particularly that (Bophutatswana President) Lucas Mangope story, I wasn’t aware of that – the behind the scenes drama.

FW de Klerk
FW de Klerk

Yes, it was quite something. F W de Klerk saw us off from the military base, you know where the Guptas ultimately came to land. So we took off with big helicopters, (IEC Chairman) Johan Kriegler and I were there along with the Koevoet guys dropping from the aeroplane (to secure the landing site). It was quite fun to watch it because I had never been in the army and it was happening all around me. And I relate how, surprisingly, Johan Kriegler called President Mangope “Oom Lucas”. And he says ‘Ja Johan’ and apparently he had been Mr Mangope’s counsel for quite some time. I am now friends with Mr Mangope’s son General Mangope who was head of the army then and came to our army and got integrated here. It was a midnight/early morning operation and of course Mr Mangope castigated me for being a bad Tswana boy. He felt as a Tswana boy you ought to behave differently but I understood that he was wrong, that he was transitional, there was no way he could constitute a democratic government. But that was just part of the challenges of the time. And then going to KZN and somehow Prince Buthelezi had fallen out with Mr Mandela, he had fallen out with F W de Klerk. Like Mr Mangope, he thought they were sell outs, that F W de Klerk or his people had sold a route which his people had bought, then they turn against them. They felt a little betrayed. And it was important to get them to come along, to say “we are IEC, we do not know about your squabbles, but shall we just set up election booths here and get on with this”. You are really asking them to abandon their power. These election booths meant that another government was about to be inducted. So it was a privilege to be part of this. To be invited by Mr Mandela in the ways that I described – “I am glad that I found you”.