DIANNE HAWKER
ANC alliance partner Cosatu has joined the increasing number of voices speaking out against Justice Mogoeng Mogoeng’s nomination for Chief Justice, saying its opposition was based on Justice Mogoeng’s views on violence against women and children.
In a statement released by spokesman Patrick Craven, the labour federation said “it would appear that Justice Mogoeng’s qualifications and experience meet the minimum requirements for appointment”.
“While Cosatu is not in a position to comment any further on the question of experience, we are aware that experience has been used as a gate-keeping factor to resist post-1994 transformation of the judiciary and the legal profession as a whole.
“Rather we are of the view that any emphasis on experience would be better focused on what it reveals about the character and mindset of a nominee.
“Cosatu’s main concerns in this part relate to the decisions of Justice Mogoeng that reflect a mindset and values that are inconsistent with the Constitution and more specifically a lack of sensitivity to a court’s role in protecting the rights and interests of vulnerable groups,” it said.
Cosatu has also questioned Justice Mogoeng’s struggle credentials, saying his work as a prosecutor in the former homeland of Bophuthatswana between 1986 and 1990 raised “serious concerns regarding his role under apartheid”.
The submission mirrors the views of a number of non-governmental legal organisations and women’s rights groups, one of which has called for signatories to a petition against his appointment.
l Section 27, Sonke Gender Justice Network, The Equality Project and the Treatment Action Campaign questioned Justice Mogoeng’s understanding of legislation and case law on spousal rape.
l The Women’s Legal Centre referred to judgments which Justice Mogoeng wrote or concurred with that rely on “rape myths” as mitigating circumstances, and ignore the psychological and emotional impact of rape.
l The Southern African Litigation Centre said it had concerns about Justice Mogoeng’s review decisions on child rape, saying he “fails to acknowledge that victims react to rape in different ways”.
“More disturbingly, he appears to suggest that rape might be perpetrated with solicitous regard.”
l Nine US academics have made a joint submission to the JSC, saying they “fear that, as Chief Justice, Justice Mogoeng will fail to build on the enormous efforts that have been made in South Africa to transform the lives of those subordinated and marginalised under apartheid”.
l The Eastern Cape Society of Advocates said Justice Mogoeng was a relatively junior judge at the Concourt and his judgments did “not reflect the values of one nominated to the highest judicial post”.
l The Cape Bar Council said there was an expectation that the Chief Justice would have authored “leading and influential judgments”, and says it is concerned by the “relative paucity of judgements written by Justice Mogoeng since his elevation to the Bench in 2007”. The bar called for further candidates to be considered, particularly Deputy Chief Justice (Dikgang) Moseneke and Justice (Sisi) Kampepe.
l The Johannesburg Bar flagged Justice Mogoeng’s failure to recuse himself in a case his wife was prosecuting, and said three of his judgments demonstrated “an insensitivity to domestic violence and to gender-based violence”.
l The National Association of Democratic Lawyers raised concerns about Justice Mogoeng’s views that interpreters are too expensive; the limited information on his work as a prosecutor in Bophuthatswana; and judgments overturned in the Supreme Court of Appeal.