Mercury Reporter
THE man nominated by President Jacob Zuma to be the country’s next chief justice says he is not homophobic or gender-insensitive, nor is he inexperienced or lacking in judicial ethics.
Replying to submissions made by his detractors to the Judicial Service Commission (JSC) ahead of his interview in Cape Town tomorrow, Justice Mogoeng Mogoeng tried to systematically debunk the flood of criticism aimed at him.
In his 38-page reply, Justice Mogoeng said he took an oath as a judge to uphold and protect the constitution and the human rights entrenched in it. If he was appointed chief justice, he would continue to uphold these values.
“I would like to rebutt any suggestion that I am insensitive to gender-based violence, that I am homophobic, that I have little or no regard for judicial ethics and that I do not subscribe to freedom of expression,” he said.
On criticism that he lacked experience, he said he been a judge for more than 14 years and that the only other Constitutional Court judges with longer services on the present Bench were Justices Froneman and Cameron.
Moreover, he had been a judge president for seven years, “whereas none of my other colleagues at the Constitutional Court have been permanently appointed to lead a division, small or big”.
Justice Mogoeng also went into detail about rape cases he had presided over and where he had imposed or confirmed substantial periods of imprisonment
“These cases... clearly demonstrate that I am not insensitive and lenient to criminals when it comes to gender-based violence, as alleged.”
On his alleged homophobia, Justice Mogoeng said his detractors had suggested that his membership of the Winners’ Chapel International Church did not square up with the judicial code of ethics, in that a judge was prohibited from taking part in the activities of any organisation that practised discrimination inconsistent with the constitution.
Justice Mogoeng said that the constitution guaranteed every South African freedom of religion, belief and opinion. “In the exercise of this right, I have fully embraced the Christian faith,” he said.
The fact that his church was opposed to homosexuality was not something peculiar to it, nor did it have as a core value the attitude that homosexuality should not be practised or was a deviant behaviour.
“It is based purely on the Biblical injunction that a man should marry a woman. The position it has adopted in this regard is similar to all Christian churches and religions to which many other judges belong.”
He exercised his freedom of religion alive to the oath that he took to uphold and protect the constitution, and that it was his duty to uphold the constitutionally entrenched rights of the gay and lesbian community, he said. ”
On the Concourt judgment of Le Roux vs Dey, Justice Mogoeng said that he concurred with the majority judgment, authored by acting Judge Brand, that a computer-created image published by two schoolboys in which the faces of the deputy principal and the principal of their school were superimposed on an image of two naked men sitting in “a sexually suggestive posture” was defamatory.
“A few days before the judgment was handed down, one colleague implored us to consider endorsing the minority position in the Cameron J and Froneman J... It was made clear that this was absolutely optional.” Justice Mogoeng said he was unconvinced about the need to endorse a minorty judgment so close to that date of delivery of judgment.
On the fact that he had not recused himself when his wife appeared before him on appeal in a matter that was set aside by the Supreme Court of Appeal, he said that at the time there was no certainty in relation to whether a judicial officer’s spouse or child could appear before that judicial officer.
The matter was discussed with the former judge president and other senior judges in the division.
“They assured me that there was nothing wrong,” he said.
At the time, he was also aware that advocate Matthew Chaskalson had appeared in at least 13 matters while his father, Justice Arthur Chaskalson, was presiding as the chief justice.
Justice Mogoeng also gave examples of other judges whose children had appeared before them.
l The 23-member JSC, under the chairmanship of Deputy Chief Justice Dikgang Moseneke, is to meetto interview Justice Mogoeng at 9.15am in Cape Town tomorrow.
Proceedings will be open to the public, but only JSC members may speak and question the candidate. 8 P8