Is the Appointment of Justice Mogoeng Mogoeng as Chief Justice in the Interest of the People?

South African Constitutional Court Judge Mogoeng Mogoeng’s previous judgements on domestic violence have raised questions regarding his suitability for the position of chief justice. If he is appointed, he will have to prove his critics wrong.

Emily Kinama, Intern, Security Sector Governance Programme, ISS Pretoria Office

Following Chief Justice Sandile Ngcobo`s retirement, South African President Jacob Zuma nominated Constitutional Court Judge Mogoeng Mogoeng for this position in August 2011. The announcement that Justice Mogoeng was to hold the highest judicial position was met with severe critique from civil society and opposition parties who questioned the suitability of the president’s choice.

Over the past few days the Judicial Service Commission (JSC) interviewed Justice Mogoeng. On the first day of interviews, Gauteng Judge President Bernard Ngoepe gave a list of 6 summarised concerns received by the JSC from the public. These were in relation to ethics, gender sensitivity, homophobia, experience, faith and jurisprudential philosophy.

The question that begs an answer is whether the appointment of a candidate who has been considered by some as gender insensitive is constitutionally unprogressive with regards to protecting victims of gender-based violence? If he indeed is biased or discriminatory towards a certain group of people, can South Africa afford to have him as chief justice for the next ten years?

According to section 173 (4) of the Constitution the chief justice and the deputy chief justice are to be appointed by the President in consultation with the JSC and leaders of political parties represented in the National Assembly. In line with this constitutional provision, Justice Mogoeng underwent rigorous scrutiny before the JSC in what was to become the most publicized interview of such a nominee. Media reports stated that a number of concerns have been raised discrediting the suitability of Justice Mogoeng for the position. These include amongst others; the Cape bar council’s submission questioning the ethics of Justice Mogoeng when he did not recuse himself as a judge in two cases where his wife was acting as the prosecutor, his gender insensitivity while dealing with cases of domestic violence and the Freedom Under Law organization also challenged the power that Zuma has under section 173 (4) of the Constitution to appoint the Chief Justice.

On the 27th of August 2011, the Women’s Legal Center made a late submission before the JSC in relation Justice Mogoeng’s nomination. This submission was to become one of the strongest criticisms to be raised against Justice Mogoeng suitability for the position. The submission amongst other things highlighted some of the cases dealing with gender –based violence (GBV) where Justice Mogoeng had made questionable rulings. These rulings led to the argument that he was gender insensitive.

Below are some of the questionable rulings that he made in the Bophuthatswana Provincial Division (now the North West High Court, Mafikeng).

In the 2001 case of S v Mathebe, the accused was convicted of assault with the intention to do grievous bodily harm. He had tied his girlfriend onto his car and dragged her on a gravel road at a high speed for 50 meters then later on denied her access to medical treatment till the following day. Here, Justice Mogoeng reduced the accused’s sentence from 2 years imprisonment to a fine of R 4000 or 2 years imprisonment suspended for 5 years. One of the reasons he raised for his decision was that the victim “provoked” the accused and that she did not suffer serious injuries. Hence there was no need for a harsher sentence.

The 2005 case of S v Moipolai involved the rape of an 8 months pregnant woman by her long-term boyfriend and father of her two other children. Justice Mogoeng reduced a sentence of 10 years imprisonment to 5 years and he stated here that the rape was not as “serious” as it would have been had a stranger committed it.

Finally, the 2006 case of E Modise v State, dealt with attempted rape (marital rape). The couple was said to have separated for a year when the accused committed the crime. Justice Mogoeng gave a concurring judgment where the 5 years imprisonment sentence was reduced. He stated that some of the reasons for this were that the rape was not as “serious” as it would have been had a stranger raped her and that no injury had been caused to the victim.

The Southern Africa Litigation Center also released a research report (2nd September 2011) in which it critisised justice Mogoeng’s judgments in cases involving child rape where in some cases he implied that the non-violent nature of the rapes negated the seriousness of the offence.

The above judgments substantiate the concerns that have been raised regarding Justice Mogoeng’s gender insensitivity. When asked by the JSC whether he would change the judgments, he answered “maybe”. In his defense, Justice Mogoeng stated before the JSC that these were not the only judgments that he had given regarding rape. He stated that he had handed down harsher sentences between 10 years imprisonment and life imprisonment to various persons accused of rape. Such cases include amongst others the 2008 case of S v Khalane where the accused was sentenced to life imprisonment and the 2007 case of S v Mothoki where the accused was sentenced to twenty years imprisonment. He also stated that he is experienced in that he has been a judge for the past fourteen years, that only two judges in the Constitutional Court have had a longer judicial service than him (Justice Froneman and Justice Cameron) and that he has been a judge president for seven years, a position which none of his Constitutional Court colleagues have ever held.

The interview process before the JSC was completed on 4th September. The latest media reports indicated that a JSC commissioner who chose to remain anonymous disclosed that 16 out of the 23 votes were in favour of Mogoeng’s appointment (The Times 5 September 2011). However, the JSC was yet to make comments. Nevertheless, the fact remains that since 1994 the JSC has endorsed all the Presidential nominees for this position (Mail and Guardian 2 September 2011). However, it is evident through the case law that Justice Mogoeng’s view of the varying “degrees” through which rape occurs and allowing this preconceived notion to influence his sentencing judgments places question marks on  his suitability for this position.

In a country such as South Africa, where there are alarmingly high rates of gender-based violence cases, there is a need for greater awareness of the seriousness and the effects of these crimes. Members of the judiciary therefore have a greater responsibility to act sensitively towards such crimes while still applying the law to the facts. A lack of this objectivity will send a wrong message to perpetrators that they can get away with their crimes. This will result in a society filled with abused, fearful and bitter victims. In 2000, the Constitutional Court’s judgment of S v Baloyi, reiterated this by stating the seriousness of domestic violence cases. It also noted that ‘the ineffectiveness of the criminal justice system in addressing family violence intensifies the subordination and helplessness of the victims….’.

The crime of rape is serious and punishable by law irrespective of whether or not serious harm is caused or if the accused is a known person or spouse. Section 9 of the Constitution also strongly supports equality before the law.  Therefore, if Justice Mogoeng does indeed get appointed to this position, he has a challenging task ahead to not only silence his many critics, but also most importantly to uphold the Constitution.

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