Open Society Initiative of Southern Africa (OSISA)

On Saturday 3rd, South Africa' Judicial Services Commission (JSC) will convene a hearing into whether or not to recommend Justice Mogoeng Mogoeng to be the country's new Chief Justice, after he was selected as the only candidate by President Zuma.

 

It is a critical day in the short, democratic history of South Africa.

 

The Constitutional Court has, for almost two decades, been seen a bastion of hope for all South Africans – for those who feel that their rights have been violated; for those who are uneasy about whether they will be protected under each new administration; and for those who cling to the notion that the rule of law trumps populism, fanaticism, and the whims of those in power.

 

The chief justice, whilst by no means the full sum of the bench, is the face of the Constitutional Court. He or she is the one individual, above all others, who South Africans look to for protection from those who might violate their rights. He or she sets, as it were, the tone of the court.

 

Sisonke Msimang, the executive director of the Open Society Initiative for Southern Africa (OSISA), makes the valid point that because judges rarely speak publicly, they speak through their cases. So while an interview with the JSC might provide some insight into the character of the judge, he should really be judged on the cases over which he has presided.

 

It is for this reason, above all others, that Zuma's nomination of Judge Mogoeng for the position of chief justice is so deeply disturbing. Some of the judgments he has made suggest that he does not fully subscribe to all of the rights enshrined in our Constitution.

 

"I worry that the chief justice is supposed to be the custodian of the Constitution and his [Judge Mogoeng's] commitment to gender equality is highly questionable," says Msimang.

 

The Constitution states that everyone has the right to freedom and security of the person, which includes the right to be "free from all forms of violence from either public or private sources" and "not to be treated or punished in a cruel, inhuman or degrading way". It also states that everyone has the right to bodily and psychological integrity, which includes the right to "security in and control over their body". These clauses in the Constitution are particularly important when it comes to the issue of gender-based violence.

 

One particular case which has raised questions about Judge Mogoeng's commitment to a culture of human rights is the 2001 State v. Eric Mathibe case. In reviewing the judgment handed down by a magistrate, Judge Mogoeng reduced the sentence of a man accused of brutally assaulting his girlfriend from two years in prison to a R2000 fine. His motivations for doing so were that the man was a first-time offender, he pleaded guilty and therefore showed remorse, he was "provoked" by the woman, and she "did not sustain serious injuries".

 

Aside from the fact that the sentence he meted out was very lenient, gender rights activists are concerned about motivations he gave for doing so. In reducing the sentence, which was not particularly harsh to begin with, Judge Mogoeng seems to have implied that under certain circumstances gender-based violence – that is, the violation of another's constitutional rights – is not a very serious offence.

 

The fact that he apportioned part of the blame (provocation) to the victim seems to suggest that to some degree he does not fully subscribe to the constitutional principle that "everyone is equal before the law and has the equal right to protection and benefit of the law" or that "the state may not unfairly discriminate directly or indirectly against anyone on the grounds of gender". For how else can you explain a judgment that holds the victim of gender-based violence partly responsible for the violation by another of her constitutional rights?

 

"The fact that the judge imposed a reduced sentence is worrying," says Desmond Lesejane of the Sonke Gender Justice Network. "But so too is the issue around saying that the woman provoked the violence. Nothing can ever provoke anyone to become violent."

 

Lesejane argues that the case sets a dangerous precedent because it perpetuates the "stereotype of the provocative woman" and the myth that the victim can in some way be held responsible for the violence carried out against her.

 

"Unless we tackle this stereotype, we will continue to victimise women. Men will think that this is a valid excuse in court. She provoked me because… she didn't cook my dinner, she wore inappropriate clothing, she was seductive, she didn't know her place etc."

 

Nhlanhla Mokwena, the director of People Opposing Women Abuse (POWA), points out that in many cases the justice system does not really protect women as it should because the burden of proof lies with the victim. Reflecting on the reduced sentence imposed by Judge Mogoeng, she asks: "Are we reducing the lives or the bodily integrity of women to a monetary value?"

 

Mokwena argues that using the severity of the woman's injuries – particularly when the severity was a result of chance rather than intent – as a motivation for reducing the sentence creates the impression that gender-based violence need only be taken seriously if it results in severe injury or death.

 

While Judge Mogoeng's ruling in this particular case has raised some very serious questions about his commitment to promoting gender equality in South Africa, the Commission for Gender Equality – the Chapter Nine institution tasked with "advancing, promoting, and protecting gender equality in South Africa" – doesn't seem to be too concerned about what the nomination of Judge Mogoeng to the judiciary's highest office means for gender equality in South Africa.

 

"We don't want to be dragged into a political discussion about the appointment of this judge," says commission chairperson Mfanozelwe Shozi. "We respect the powers given to the president in the Constitution, which allow him to nominate a judge of his choice."

 

Shozi, interpreting gender equality in a rather narrow fashion, adds that the commission will always welcome the appointment of women as magistrates, judges, and justices of the Constitutional Court. He suggests that if the commission had the opportunity to advise the JSC ahead of Judge Mogoeng's interview, it would suggest that the commission asks questions about Mogoeng's commitment to gender equality in the judiciary, how he would go about dealing with sexual harassment in the judiciary, and what approach he would take to transgendered people.

 

The role of the JSC in approving the president's choice for chief justice is, in fact, very important. As the body tasked with overseeing the judiciary, it has a responsibility to ask Judge Mogoeng tough questions and, if he fails to answer them appropriately, to advise the president against appointing him. The JSC, having already promoted Judge Mogoeng to the bench of the Constitutional Court, will need to prove that it is not simply rubber stamping the president's choice.

 

The Sonke Gender Justice Network, together with the public interest law organisation Section 27, the Treatment Action Campaign, and the Lesbian and Gay Equality Project, has lodged an objection with the JSC over the nomination of Judge Mogoeng for chief justice. According to Lesejane, Sonke would like to see the JSC asking Judge Mogoeng how, in retrospect, he views the ruling that he made in the Mathibe case.

 

"We want him to admit that he made a wrong call of judgement," says Lesejane, "and we want him to make a public commitment to gender equality. If he doesn't admit that he was wrong… well, then he shouldn't be chief justice.

 

"In this country, attention to gender-based violence seems to be restricted to calendar moments. We need leadership that will be vigilant about these issues."

 

Even if Judge Mogoeng does manage to explain his ruling in the Mathibe case in a satisfactory manner, this may not be enough to convince those who are concerned about his case law that he is indeed the man for the job.

 

In addition to the Mathibe ruling, Judge Mogoeng also made two controversial judgments in cases of marital rape. According to the Mail & Guardian, in the 2004 case of Gilbert Moipolai, who was sentenced to 10 years in prison for raping his pregnant wife in front of another person, the Judge Mogoeng reduced the sentence to five years' imprisonment on the grounds that marital rape cannot legally be classified as rape. Not only does this ruling show a very cavalier attitude towards gender-based violence and domestic abuse, it also suggests that the judge's understanding of the law is not what it should be, as the Prevention of Family Violence Act of 1993 states that "a husband may be convicted of the rape of his wife".

 

In 2007, according to the Mail & Guardian, he suspended the two-year jail sentence of convicted rapist Ezekiel Modise, who throttled his estranged wife before raping her, on the grounds that "no real harm or injuries resulted from the throttling" and that the relationship between the two made it less traumatic than if the woman had been raped by a stranger. He also explained Modise's violent behaviour by suggesting that he was sexually aroused by his wife and "overwhelmed" by his desires. Both of the above cases suggest that the judge holds very conservative views around marriage and the relationship between men and women, and that he cannot let go of these views when handing down judgment.

 

Mokwena believes that the JSC should be asking Judge Mogoeng a broad range of questions related to his religious beliefs. While the judge is – like any other South African – entitled to religious beliefs of his choice, Mokwena suggests that someone so overtly identified with a particular faith, and a specific church (The Winners Chapel) within this faith, may have difficulty letting go of his religious beliefs.

 

"The JSC needs to ask the judge important questions about how he sees himself as a Christian and about how these beliefs will influence his interpretation of the Constitution. They need to ask him how he feels about sex work, about abortion, and about the killing of black lesbian activists."

 

All South African judges should use the Constitution as a guide when passing down judgment. If the personal beliefs of a judge do not align exactly with the rights and values enshrined in the Constitution, then the Constitution should take precedence. Msimang argues that the problem is not that Judge Mogoeng holds conservative views, but rather that there is no disjunction between his personal views and his implementation of the law. "His case law has demonstrated that he hasn't been able to separate out his personal views when making judgments," says Msimang.

 

Admittedly, while all South Africans should be concerned about gender equality, there are probably those who would agree with some of the judge's more conservative positions. There are also those who haven't quite bought into the whole idea of racial equality. And those (Judge Mogoeng may very well be among them, given his unexplained minority ruling in the Le Roux and Others v. Dey case) who reckon that homosexuals don't quite deserve the same rights as everybody else.

 

Human rights are an all-or-nothing game. That is, when it comes to human rights you cannot pick and choose which rights should be upheld. If you are not willing to protect all human rights equally, then you cannot claim to subscribe to the concept of human rights. And that is not a tenable position for the country's chief justice to hold.

 

By Rebekah Kendal