Deputy Justice Dikgang Moseneke. Picture: MOHAU MOFOKENG/SOWETAN.
Deputy Justice Dikgang Moseneke. Picture: MOHAU MOFOKENG/SOWETAN.

WHEN we said goodbye to Deputy Chief Justice Dikgang Moseneke on Friday, he handed down his last judgment on a subject dear to his heart — education. The judgment would have been a fitting note upon which to exit an office he has served with passion and distinction. But, although it was an excellent judgment, it was eclipsed by what followed: Moseneke’s gracious, even effusive, endorsement of the integrity of Chief Justice Mogoeng Mogoeng.

I am still overwhelmed. Moseneke said that despite their "initial discomfort", he and Mogoeng had "found each other".

"Each time there was a storm that swirled around this institution, you and I stood firm," Moseneke said to Mogoeng. "I can say without any fear of contradiction that your integrity has been shown to be beyond question."

If it felt unfair when Moseneke was overlooked for the chief justice post in favour of Sandile Ngcobo, it was outrageous when he was overlooked a second time, when Mogoeng was appointed. Indeed, I think a big proportion of the flak Mogoeng has had to deal with for taking up the position of chief justice was because his elevation came on the back of what the vast majority of the legal community felt was a manifest injustice.

That transition was tense and divisive. Looking back, I wonder whether Ngcobo should have allowed the executive to try to keep him on. I wonder whether Moseneke should have chaired the Judicial Service Commission (JSC) session that interviewed Mogoeng. He felt impatient to me — remember the drumming fingers on the table? Maybe Mogoeng should have said no to the gig (as a few others did, or so it was reported).

But that’s all water under the bridge. And after Friday, the institution is stronger for it. Mogoeng has already put minds at ease that he is not a stooge for the president. Moseneke did not have to say what he said on Friday, but it removed any vestige of doubt. Mogoeng was gracious too. He acknowledged that, "all things being equal", Moseneke was "infinitely qualified" to be chief justice.

Their exchange was so honest. They did not paper over their early differences and their frankness showed that they respect us. Nowadays, the public is so often treated as if we are stupid and we are expected to swallow brazen lies. But the most important thing was that they put the institution of the judiciary and SA first, something we need to see far more from public institutions. Hint, hint, to the rest of y’all.

Strong, effective institutions are absolutely crucial to building democracy. When institutions fail, even the best people will be swallowed up. When institutions are strong, even the weakest people are empowered to put their best foot forward. As an institution, the judiciary is doing pretty well. Not that there aren’t weaknesses: there are many. But it has come through; it is getting through.

We are entering into what could be another rough patch. There are two vacant posts on the Constitutional Court. There is a vacancy for deputy chief justice. Soon, there will be a vacancy for president of the Supreme Court of Appeal.

Unfortunately, not enough candidates are making themselves available. I still cannot figure out why. I know the JSC process can be gruelling and sometimes downright unfair. But if all our judges were to take a leaf out of Moseneke’s book, they would come forward anyway. Similarly, when the race starts for the leadership posts, they will put the judiciary first.

A series of judicial misconduct tribunals is due to get under way soon too. These will pitch judges against each other, which has the potential to be terribly divisive — in particular, the tribunal investigating the gross misconduct complaint against Western Cape Judge President John Hlophe.

When the complaint was made in 2008, it divided the legal community and weakened the judiciary. Now that the investigation is back on, my fervent entreaty to everyone involved is to move forward with honesty and integrity, and to conduct themselves in a way that builds the institutions involved — the judiciary and the JSC — rather than undermines them.

To do so would be the best way to pay tribute to Dikgang Moseneke, the man who has been putting SA first since he was 15 years old.

Rabkin is law and constitution writer