Former Deputy Chief Justice Dikgang Moseneke delivers the 2016 Helen Suzman Memorial Lecture

Last night, former Deputy Chief Justice Dikgang Moseneke delivered the 2016 Helen Suzman Memorial Lecture, which is hosted by the Helen Suzman Foundation in association with the Gordon Institute of Business Science and the Kaplan Centre for Jewish Studies at UCT. He spoke on ‘shades of the rule of law and social justice’.

Justice Moseneke began by paying tribute to Helen Suzman, speaking of her commitment to prisoners’ rights, including, in particular, the right of prisoners to education. He remembered her regular visits to Robben Island during his imprisonment and her continued opposition to Robert Sobukwe’s indefinite detention.

His lecture centred on the three ways in which the rule of law can be understood. The first, formulated by A.V. Dicey in the nineteenth century, is merely that the words of the law must be obeyed. A shortcoming of this conception is that it permits evil legal systems, such as apartheid. The second is more substantive, purposive and justice-oriented, and a means to bring democracy and accountability to post-colonial societies. It is not, as some critics have claimed, a ‘post-liberal fetish’ or a means to entrench inequality.

But Justice Moseneke focussed on a third conception of the rule of law: one inspired by the Constitution. Under this conception, the law must be used to realise the vision of our Constitution, a society of social justice, one in which entrenched poverty and inequality are genuinely tackled. It mandates a transformative ‘Marshall Plan’ for South Africa.

But to realise this conception of the rule of law, it is insufficient for social movements merely to litigate constitutional rights, whether they are socio-economic rights or rights based on the rule of law. We also cannot rely on Chapter 9 Institutions alone. The ultimate tool of accountability, and the ultimate means to transformation, is at the ballot box.

During question time, Justice Moseneke commented on the reality that much of the Constitution’s vision remains unrealised. He also addressed the issue of land reform. He argued that government policy was not sufficiently imaginative and assertive in addressing the problems around land, and that the fault did not lie with the Constitution’s property clause. Justice Moseneke also lamented the decision to withdraw from the ICC. When the rule of law fails domestically, it is an important, albeit imperfect, means to protect ordinary people from abuses of power.

Justice Moseneke argued that South Africa must address inequality and poverty. A generous conception of the rule of law is needed to address these challenges. And if we do not address them, the rule of law will not survive.

For the full transcript, click here.