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0 viewsOn 8 September, President Jacob Zuma appointed Justice Mogoeng as Chief Justice of the Republic to replace the retired Judge Sandile Ngcobo. The appointment surprised the South African public and provoked questions which deserve more investigative exploration, seeing that the man is now the leader of the South African judiciary system.
After Mogoeng’s nomination, lobby groups, liberals and human rights groups publicly opposed him – including many lawyers and even COSATU. Despite Zuma’s statement that “the interview of Justice Mogoeng was no doubt the longest, most transparent and most robust ever undertaken by a candidate for Chief Justice or for any other public position in the history of this young democracy”, eyebrows were raised at every turn.
When looking at the simple facts, Mogoeng is a good candidate – he has 14 years experience as a judge, two of which were in the Constitutional Court. However, he is young by any Chief Judiciary standards, especially since there are more qualified candidates with equally, if not more impressive resumes. Age and experience aside, he is widely regarded as conservative and is a devoutly religious Christian, (he is an ordained pastor). Thus opposition to his appointment comes also in response to several controversial judgements regarding rape (including domestic and child rape) cases and issues concerning homosexuality.
There are countless blog post diatribes circulating in the wake of his appointment, and not just from over-zealous political aspirants or cynics. Jen Thorpe, editor of feministssa.com wrote that the appointment sends “a message to rape survivors that they are not supported by our Criminal Justice System, in particular our courts”. She went on to say that “his judgements seem to say that he condones marital rape, that violence against women is acceptable if there are no bruises, and that women do not have a right to say no to sex within an intimate partnership. His statements go against women’s rights, and against the Sexual Offences Act. Above this, they show little respect for women, and a very poor understanding of the impact of rape.”
There is always more to a story, though, and thoughtleader.co.za writer, Fiona Snyckers, makes a strong point too. “There is not a single judge in all the land who could stand up to having all of his or her judgments scrutinised and selectively quoted from for the purposes of making him or her look foolish or biased. The law is a dirty business, and judges are forced to wade through muck every day, particularly when they are presiding over criminal trials.”
In the wake of Mogoeng’s appointment and the discourse surrounding it, perhaps we should simply ask – in a country that has one of the world’s highest incidences of rape and violence towards women, does appointing someone with a controversial reputation regarding rape sentences really make sense?
Mogoeng’s appointment has, if anything, caused many young law students and lawyers to think about what it means to be a judge in this country so it should not lead people to believe that there is no other potential in the South African judiciary. In fact, not only do others high in the judicial ladder show promise – but it is affirming to realise that many excellent young lawyers are up and coming too, and it will take more than the acts of one man to dictate how a country interprets its constitution.
Candidate attorney Lesley De Vries stresses that “every judge has, first and foremost, a duty of applying their mind to the case before them and making an informed, reasoned and balanced decision. It is pertinent to the machinations of justice as it provides the basis on which the law will work.”.
We should all hope that Mogoeng’s decisions will be well informed, reasoned and balanced. Another option is to take Zapiro’s advice – “I guess all we can really do is be optimistic…and pray (hard)”.