It was already late in the evening when justice Yvonne Mokgoro took to the podium as the keynote speaker at the Wits final-year law dinner in November 2013. The room was buzzing with excitement, everyone eager to take to the dance floor.
Most of what happened that night has faded from my memory but what has stuck was Mokgoro’s simple advice to us: “Be present.” Speaking with her classic calm and graceful tone, Mokgoro — who died on May 9 — reminded us that, as we began our legal careers the following year, we would be the most junior people at whatever tables we sat.
Often, we would not be called on to speak but simply to take notes. Nevertheless, we would have to read all the files and all the cases, prepare more than anyone else and be fully present, in case we were called on to speak.
Those words have stuck with me over the last decade I’ve spent in human rights law, which is an area Mokgoro had made the greatest impact during her illustrious career as a lawyer, a law professor and a judge.
Born in the Galeshewe township of Kimberley in 1950, she never dreamt of being a lawyer.
According to an interview with Prof Daniel Plaatjies, she had no role models of women lawyers and instead wanted to be either a teacher or a nurse, like the nuns at her Catholic school.
As fate would have it, in the early 1970s, during Mokgoro’s student days, a young man was arrested by the police on trumped-up loitering charges in front of her. Offended by this, she intervened on behalf of the man. She was arrested alongside him, charged with obstruction of justice and detained for a weekend.
When she got to court, her lawyer was Pan Africanist Congress founder and black consciousness leader Robert Sobukwe, who was banished by the apartheid government to Galeshewe, after a decade in solitary confinement on Robben Island for political activism.
Academic excellence
On her release, she immediately deregistered for her arts degree and enrolled for a law degree at the University of Bophuthatswana and never looked back. She would later complete an LLB and two master’s degrees, including an LLM from the University of Pennsylvania in the US as a Fulbright scholar.
After a brief stint as a prosecutor, she spent a long time in legal academia, rising to the rank of associate professor at the universities of Bophuthatswana and the Western Cape. In the early 1990s, she became a researcher at the Human Sciences Research Council, doing pioneering research on constitutional law and human rights, as if foretelling the new democracy that was to come.
In 1994, the new constitution, with a bill of rights at its core, also introduced a new Constitutional Court. It also changed the process for appointing of all judges; from only the ranks of senior counsel to a wider pool that would include law professors.
Mokgoro received a groundswell of support to be one of President Nelson Mandela’s 11 new justices of the Constitutional Court, including Albie Sachs, Richard Goldstone, Pius Langa and Arthur Chaskalson. She was appointed as one of two law professors — and one of two women, alongside Kate O’Regan. Coincidentally, she also became the first black woman appointed to SA’s judiciary. She would spend the full term of 15 years at the court, retiring in 2009.
It’s hard to pin down Mokgoro’s judicial legacy, but it’s probably accurate to describe her “ubuntu jurisprudence” as one of the most enduring aspects of it. She infused the law with the African principle of ubuntu-botho: I am because you are, through our common humanity.
She pioneered this in her minority judgment in State v Makwanyane, the Constitutional Court’s first case, in 1995, which dealt with the abolition of the death penalty. Not only did it influence four fellow judges to pen concurring judgments in the same case, affirming ubuntu as a value-laden legal principle, but it would give rise to a new branch of legal scholarship.
Not comfortable with only inspiring young people through her teaching, Mokgoro worked tirelessly to build education institutions that would produce many more Robert Sobukwes and Yvonne Mokgoros.
Ubuntu has been infused in diverse areas such as contract law, consumer protection law, property law and of course human rights law. Moreover, several of Mokgoro’s most seminal judgments are deeply concerned with extending rights to the most vulnerable. In Khosa v Minister of Social Development, Mokgoro held that permanent residents, in addition to citizens, are entitled to social security grants; and in Jaftha v Schoeman she found unconstitutional a rule that allowed banks to sell people’s homes in execution of debts of relatively trivial amounts.
Instead of taking a well-deserved post-retirement break, Mokgoro devoted herself to serving the broader legal community. She was the longest-serving chair (1995—2011) of the SA Law Reform Commission, rewriting 37 of SA’s laws and bringing them in line with the new constitution. She was the first judge to serve in the office of the chief justice (2011—2013), breaking new ground to establish an independent administration for the judiciary, to strengthen its valuable independence. She also worked to strengthen judiciaries in the rest of Africa, by serving as an appellate judge in Namibia and Lesotho.
Not comfortable with only inspiring young people through her teaching, Mokgoro worked tirelessly to build education institutions that would produce many more Robert Sobukwes and Yvonne Mokgoros.
She spent seven years (2002—2009) as the chair of the University of Venda, taking what was an apartheid “bush” college to being a modern university serving rural needs. Sol Plaatjie University (SPU), the Northern Cape’s first university, was built literally from the ground up under Mokgoro’s careful guidance as founding chair of council. With over 3,000 graduates, including in vital fields such as data science and foundation phase education, SPU stands as the most tangible example of Mokgoro’s life and legacy.
Numerous local and international universities awarded Mokgoro with honorary doctorates in law to celebrate her illustrious career legal career. In 2009, the president awarded her with the Order of the Baobab on behalf of all South Africans.
As we celebrate 30 years of democracy, it is the many young people like me that Mokgoro inspired through her life in the law, and her work in building legal and educational institutions, that stand as living legacies to ubuntu in action. A moya wa gagwe o robale ka kagiso.
• Mbekezeli Benjamin is a human rights lawyer and research and advocacy officer at Judges Matter.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.