Date: 16/04/2011
Source: The Office of the Chief Justice
Title: SA: Ngcobo: Address by the the Chief Justice of South Africa, on the late Judge President Herbert Qesusizi Msimang, Pietermaritzburg

Mrs Nomusa Msimang,
The entire Msimang family,
The entire Shezi family,
President Gedley-Hlekisa Zuma,
Esteemed colleagues on the bench,
Minister for Justice and Constitutional Development, Mr Jeff Radebe,
Premier of KwaZulu-Natal, Dr Zweli Mkhize,
Members of the executive and the legislature in all spheres of government,
Members of the legal profession, academia and civil society,
Mphakathi wase Edeni,
Friends and fellow mourners.

It was at approximately 6 p.m. and I was busy with the interviews for judicial appointments when the Minister for Justice and Constitutional Development informed me that he had just received a message that Judge President Herbert Qedusizi Msimang had passed away. I immediately left the proceedings to verify the message. I called Judge Jerome Mnguni, a close friend of the Msimang family. I was hoping that Judge Mnguni would say it was a mistake. He did not; to my shock he confirmed the news.

Although I knew that Judge President Msimang had been ill for some time, his health had been fluctuating. When I last saw him he was in good spirits and, having spoken to his wife, I was satisfied that he was on the road to recovery. For this reason, I received the news of his passing away with shock and pain. I suppose death is like that—it strikes at the most untimely hour; usually when you least expect it.

I cannot begin to imagine your pain, Mrs Msimang, or that of your four daughters, Nokuthula, Sibongile, Sanelisiwe and Ayanda. What started off as an exciting time for Qeda, as we affectionately called Judge President Msimang, as the second black Judge President of KwaZulu-Natal, has ended with his unexpected death, before he could implement all of his visions for this province.

Mrs Msimang, I share the deep pain and sadness of your loss. For me personally it has been a double loss; I have lost a friend and a colleague. The same pain and sense of loss is shared by the judiciary, not only in KwaZulu-Natal, but in South Africa as a whole, the legal profession, the general public and many more.

This was the sentiment that was expressed by all of the 18 speakers at the memorial service on Thursday, from the support staff of the High Court to the interpreters, from members of the legal profession to government officials, from colleagues and friends to family.

It is perhaps impossible to say anything that can console you at this difficult hour and remove the deep sense of loss you and your children and extended family are feeling. But I hope you can find some consolation from what Dr Martin Luther King Junior said many years ago on an occasion such as this. Dr King said two things.

First, he reminded us that death is universal. It is universal because it comes to every individual. He said: “Death is the irreducible common denominator of all human beings.”

Second, he reminded us that death is not the end. He said:

“Death is not a period that ends the great sentence of life, but a comma that punctuates, marking a transition to a more lofty significance. Death is not a blind [passage] that leads the human race to a state of nothingness, but an open door that leads human beings into life eternal. Let this daring faith; this great invincible surmise be your sustaining power during these difficult days.”

Mrs Msimang, our thoughts and prayers are with you and your family during this difficult time.

Mr President, friends and fellow mourners, this morning we are gathered for the funeral of Judge President Msimang. It has been declared an official funeral. As Judge President Msimang died in office, this declaration is indeed fitting and appropriate. I would like to extend my gratitude to the government for honouring Judge President Msimang in this manner.

The message implicit in this recognition is a profound one, and one that Judge President Msimang would no doubt greatly appreciate. It is a recognition that under our Constitution there are three co-equal branches of government, each with a clearly defined constitutional role. None is subservient to the others. The very presence at this funeral of you, Mr President, as the head of state and the head of the executive, as well as the presence of members of the legislature in all spheres of government, and my presence as the head of the judiciary, simply underscores this proposition.

To the people of South Africa, in particular, the people of KwaZulu-Natal, and perhaps more importantly, the people of Edendale, where Judge President Msimang grew up, I would like to say this. This morning we are gathered in the quiet of this sanctuary of Hilton College to pay our last tribute of respect to Qeda. He entered the stage of history some 60 years ago and in the period that he was privileged to act on this mortal stage, he played his part exceedingly well. Now the curtain has fallen; he moves through the exit; the drama of his earthly life has come to an end. He is now committed back to that eternity from which he came.

As we pay tribute to Judge President Msimang, it is proper that we should reflect on the contribution that he made to our country and to the judiciary. And it is proper too that we should reflect on the lessons that he has taught us, both as a human being and as a judge.

He was born in 1951 into a society that placed in his path, and that of many black people in this country, racial and other apartheid hurdles. As Advocate Menzi Simelane, the National Director of Public Prosecutions, remarked on Thursday, like most, if not all of us, in his generation, Qeda attended segregated schools and university. Yet with fortitude, diligence and dedication he made it to the highest judicial office in this province.

Judge President Msimang commenced his legal career as a law teacher at the University of Zululand, where he had earlier obtained a B Juris degree. In 1978 and 1979, he served as an advocate of the High Court of Lesotho. Thereafter, he returned to South Africa to pursue his career as an attorney. He remained in that profession until he was elevated to the bench.

While practicing as an attorney, Judge President Msimang recognised the need to render service to those individuals who, because of unavailability of means, could not afford a lawyer. He served as a part-time director of the Legal Aid Clinic at the University of Zululand. In that capacity he used his skills to make justice accessible to the poor. As if this was not enough, he helped ordinary people to achieve speedy justice by presiding in the Small Claims Court.

He also served in various community organisations. On Thursday, we were told of his contribution as one of the directors of the Edendale Lay Ecumenical Centre. Apart from this, he was a member of the Governing Council of the Indumiso Teachers Training College; a member of Grey’s Hospital Board here in Pietermaritzburg; a legal advisor to the Maritzburg City Football Club; and chairmen of the Board of Trustees of the Umgeni Aids Centre.

Judge President Msimang distinguished himself in everything that he did. As a law student, he was the top of his class. As an attorney, he had a reputation for being one of the most efficient attorneys in this province. When you were looking for a correspondence attorney in Pietermaritzburg, his office was your first choice. His colleagues recognised his skills and efficiency and invited his law firm to amalgamate with a major law firm in Pietermaritzburg to form Shepstone & Wylie, Tomlinson and Msimang and Rusch.

And as a judge, he distinguished himself with his passion for his work, and commitment to duty, and, above all, his dedication to justice and fairness and the values of our constitutional democracy. He applied the Constitution and the law with impartiality and without fear, favour or prejudice. It is this commitment to duty and the values of our constitutional democracy that saw Judge President Msimang elevated to the highest judicial office in this province.

Judge President Msimang was not satisfied, however, merely with attaining this high position. He used it to help build the new South Africa promised in our Constitution.

During his interview with the Judicial Service Commission for the position of Judge President, he elaborated on his far-sighted vision for the courts of KwaZulu-Natal. He spoke about the continuing need to transform the bench in this province, and the need to be imaginative in addressing the persistent challenges of backlogs and reserved judgments.

He spoke passionately about the need to improve access to courts and bring justice to the people. He expressed his dismay, for example, that a person might be required to travel from Pongola to Pietermaritzburg, a distance of some eight hours, to attend an unopposed divorce. He therefore called for the use of circuit courts in civil matters. He astutely observed that public respect for the independence of the judiciary depends significantly upon the efficient operation of the courts, and committed himself to working on this issue.

I regret that in this brief summary I have not done justice to Judge President Msimang’s contribution to our constitutional democracy. Indeed, on an occasion like this, and the time constraints it imposes, it is impossible to do justice to his career. Today is not, however, the occasion to discuss in full his intellectual contributions to the development of our law. That day will surely come. For now, it is sufficient to note that his 38 reported judgments will forever serve as a testament to his record as one of the great jurists of our times.

In short, Judge President Msimang was regarded within the judiciary and broader legal fraternity as a brave jurist with an incisive and independent mind. He had a distinguished career, both as an attorney, a community servant and a Judge. He has served our nation with distinction. His life is an inspiration to generations of South Africans. And for that, we are deeply grateful to him.

On Thursday afternoon, at the memorial service, I listened with great joy and pride as speaker after speaker spoke of Judge President Msimang’s passion for justice and fairness; his unrelenting commitment to duty. He required excellence, not only from those appearing before him and from those he led, but from himself. He led by example. Intolerance for incompetence characterised his professional life, and he did not hesitate to express his displeasure whenever he encountered it.

Yet, he was humble, the speakers told us. When he made a mistake he was quick to acknowledge it and apologise for it. His legacy as a judge will endure beyond the confines of a particular judicial ideology because it reflects the profound humility he brought to the task of judging. Indeed, it is just this type of humility, which Judge President Msimang exemplified, that must define the judicial office. Judges, after all, are servants of the law, not the other way around.

We must not forget that, despite his seriousness, Judge President Msimang had a fine sense of humour. He loved jokes. He loved to laugh and, when he did laugh, he laughed loudly, indeed!

In the course of his journey to the office of Judge President, and in his all too brief time holding that office, Judge President Msimang made a significant contribution to the building of the new South Africa we now live in. Like the journey of all black people, it was not an easy journey. It was punctuated by suffering and injustice. But he never abandoned the dream of a new South Africa.

As we pay our last tribute to Judge President Msimang, we must therefore draw inspiration from the Preamble to our Constitution, which declares:

“We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.”

Mrs Msimang, it was a pleasure for me to have personally known and worked with your husband. I am sure that I speak for all in the judiciary, in saying that we feel deeply for you and your family. We understand the enormity of your loss. We know that you will require fortitude to cope with what has happened. Our sympathies go out to all of you, and we wish you strength in the difficult time ahead.

Lala ngoxolo thabizolo nonkosi. Emndenini wakwa Msimang nabakwa shezi ngithi lalani ngenxeba akwehlanga lungehli.