Mogoeng on the ropes

It's my chance to speak: Chief Justice nominee Justice Mogoeng Mogoeng answers questions at the Judicial Service Commission at the Cape Town International Convention Centre yesterday. Picture: Leon Lestrade

It's my chance to speak: Chief Justice nominee Justice Mogoeng Mogoeng answers questions at the Judicial Service Commission at the Cape Town International Convention Centre yesterday. Picture: Leon Lestrade

Published Sep 5, 2011



EMOTIONS ran high when the Judicial Service Commission interviewed Justice Mogoeng Mogoeng yesterday, as President Jacob Zuma’s only nominee for Chief Justice vehemently defended his suitability for the country’s top judicial office.

Justice Mogoeng arrived at the special sitting of the Judicial Service Commission in Cape Town prepared to fight off what he called “five weeks of merciless attacks”.

What he perceived to be an attack on his credibility was also a questioning of Zuma’s own judgment, and, in some quarters, a protest at Zuma’s insistence on overlooking Deputy Chief Justice Dikgang Moseneke. Moseneke is the chairman of the special sitting.

But even after reading out a 47-page rebuttal, hours of questioning followed, and was to continue today from 9am.

With a look of determination, he read the bulk of the document and at least twice became very emotional – once when talking about his poor upbringing and once when interrupted by Justice Moseneke, who suggested Justice Mogoeng must read a bit faster because there were many pages.

“I think five weeks of merciless attacks against me justify as much as five hours. A man who is being accused of incompetence, who is being accused of total disregard for the rights of women and gay and lesbian people. Honourable chair I think there is no room for impatience here. I deserve to be given the opportunity to state my case,” he told Justice Moseneke.

The two clashed later, with Justice Mogoeng telling Justice Moseneke: “We don’t have to be sarcastic, Sir,” after he battled to deal with a series of questions relating to his dissent in the gay defamation judgment, for which Justice Mogoeng has received much criticism for not providing reasons for his dissent.

Pushed for a response, he eventually said he would have agreed with the other judges on the matter, but at the time he had not been able to apply his mind.

Justice Mogoeng dissented with a paragraph of the judgment which read: “it is not, and should not be, an actionably injurious slight to offend someone’s feelings by merely classing them in a condition the constitution protects – be it (based) religion, race, age, birth or sexual (grounds). To simply call someone Muslim, Christian, gay, black, white, lesbian, female, male, an old-age pensioner, atheist, Venda or Afrikaans-speaker is not actionably injurious. Something more is needed.”

He had not explained why.

Justice Mogoeng told the court the paragraph had been a late consideration at the court, and he had not had time to properly apply his mind. Justice Mogoeng later said he believed he had erred in not providing reasons.

“I think I should have provided reasons. I erred by not providing reasons.”

The exchange led IFP MP Koos van der Merwe to question Justice Mogoeng’s suitability.

Van der Merwe: Judge Mogoeng, do you have a short temper?

Justice Mogoeng: No.

Van der Merwe: You don’t?

Justice Mogoeng: But sometimes, I’m a man who has his own weaknesses, like everyone else.

Van der Merwe: Did I hear you correctly when you said to the Deputy Chief Justice that he shouldn’t be sarcastic or that he is sarcastic?

Justice Mogoeng: I said that and I apologise.

Van der Merwe: But it shows me that… It points to you not being suitable for the job as the number one lawyer in the country. I’ve sat on this commission for 15 years. It is the first time in 15 years that an applicant is so arrogant that he does what you’ve done now. It points to your suitability, negatively.”

Justice Mogoeng had earlier rubbished suggestions that he was anti-gay and held dubious views on women’s rights.

He dismissed questions over whether his association with the Winners Chapel International, where he is a pastor, will affect his dedication to the constitution.

“My church’s opposition to homosexuality is not something peculiar to it, nor does the church have as its core value, the attitude that homosexuality should not be practised, or is a deviant behaviour.

“It is based purely on the Biblical injunction that a man should marry a woman and that there shall be a husband and a wife. The opposition to homosexuality is not therefore, a sine qua non (main reason) for the existence of Winners Chapel International.

“The position it has adopted in this regard is similar to that of almost all Christian churches and religions, to which many other judges belong. It is unlike, for example, the Klu Klux Klan, whose core value is racial supremacy. The core values of our church relate to Biblical teachings and the church is not founded on homophobia. It is founded on the Holy Bible. I exercise my freedom of religion as a judge, alive to the commitment (to the constitution) I have made publicly.”

He also spent much time dealing with his 14 years of experience on the bench, including seven years as Judge President in the North West, though admitting it is a smaller division.

“What the commentators have deliberately failed to draw to the attention of the commission is that I have presided in at least seven other cases involving rape of women in which I imposed or confirmed substantial periods of imprisonment, ranging from 10 years to life imprisonment.”

Justice Mogoeng admitted that in some cases, his level of experience betrayed him. When dealing with the issue of his perceived lack of experience, Justice Mogoeng used examples of other Chief Justices who had been appointed with relatively little experience. Among them he mentioned the President of the Federal Constitutional Court of Germany, Andreas Voßkhule, who is a professor who had “no recorded judicial experience”.

But Professor Engela Schlemmer pointed out that unlike in South Africa, the head of the German Constitutional Court was not the head of the judiciary.

Instead the head of the German judiciary is President of the Federal Court of Justice, Professor Dr Klaus Tolksdorf, who has 30 years of judicial experience and is “considered one of the best legal minds that Germany has”.

Justice Mogoeng dealt with several issues relating to transformation and went so far as to lambaste government for briefing mostly white advocates.

“The briefing patterns in this country are almost identical to how they used to be during the apartheid era. Sadly, even government departments. You’d find that the department has briefed a white male senior counsel, with three white male senior counsel.

Most of the time it is only white counsel briefed by government appearing there. I appreciate that you have quite a number of highly competent white senior counsel, although you also have a few black ones.”

He said government should be “unapologetic” about creating a pool of practitioners and even academics out of which judges could be appointed,” in order to deal with transformation.

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