Nation waits with bated breath ...

LEGAL EAGLE: Judge Dikgang Ernest Moseneke
LEGAL EAGLE: Judge Dikgang Ernest Moseneke

IS HISTORY in South Africa about to repeat itself judicially - I mean with reference to the appointment of the new chief justice of the Republic?

Or will the Judicial Service Commission throw a spanner in the works? Let me throw the cat among the pigeons.

In the next week or two, South Africa's most guarded secret will have been broadcast for the citizenry to chew - the successor to Chief Justice Sandile Ngcobo.

Who will it be this time?

Will we experience the Schreiner curse? Third time unlucky? Don't reach for the thought-police. Relax.

We have been here before, haven't we? I am trying hard not to be vague. Don't pre-judge me yet, pardon the pun.

According to my legal-eagle agent provocateur alter ego, the new chief justice is going to be scrutinised like never before, even unfairly to an extent. Shall I throw my bones and make a prediction? Shall I? Never mind, I intend to regardless.

Historically, the first jurist to experience the chief justice, or rather the chief justice curse, is none other than the brilliant writer - oops - judge, Justice Oliver Deneys Schreiner (1890 - 1980), who was "twice passed over", according to essayist Stephen D Girvin.

The practice then was that on the retirement of the chief justice "the senior judge of appeal was appointed to the post".

Girvin further writes: "With some justification, Schreiner JA has been described as the greatest chief justice South Africa never had".

Evidently, the National Party apartheid government did not trust his "judgment", to subvert the phrase.

Yet history was to repeat itself, this time under the democratic dispensation, when my hero and a disciple of the majestic Bengali poet laureate Rabindranath Tagore, Justice Ismail Mahomed (1931 - 2000), was overlooked.

Aw! Aw! Oh no, not true, I hear you say.

It is true.

So devastating was this chief justice curse that Justice Mahomed suffered what colleagues said was a mortal blow he would never recover from.

Others are emphatic and say it was a heart attack.

Another grouping says the black side had not lobbied sufficiently to ensure the most experienced jurist in Southern Africa at that time was given his moment of glory after all the humiliation he had suffered on the bench as an advocate, especially in the then un-Free and un-Oranged state.

A son of the soil recalls his mother saying: "She reminded me compassionately and quietly that life does impose burdens on each one of us and that when that moment comes we must find an inner strength and tenacity to absorb pain with equanimity."

This son goes on to say truly humbled: "What mattered, my mother often said, is how we emerge from difficult moments."

That was not enough: The philosopher-mother "looked down upon entitlement as the poorer cousin of assuming personal responsibility for the task at hand".

As the late and great people's lawyer Godfrey M Pitje (1917- 1997) would have said proudly: "That's my boy, monna."

The mother's son in question?

None other than Justice Dikgang Ernest Moseneke.

I rest my case, M'Lords and Lady Justices.

  • Mothobi Mutloatse is a writer, publisher and broadcaster.
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