Despite strong opposition from human rights groups, on September 8 President Jacob Zuma appointed Mogoeng Mogoeng as Chief Justice of South Africa’s Constitutional Court and head of the country’s judiciary. Mogoeng served as a justice for two years. As chief justice he will lead the court during the last decade of his 12-year term. South Africa’s high court decides questions related to the constitution and makes recommendations to the president on judicial appointments. Critics say Mogoeng’s influence in judicial appointments will lead to a more conservative judiciary prone to deferring to the executive.
South African civil rights groups condemned President Zuma’s choice for chief justice. They argued that Mogoeng’s views on gender equality and marital rape “make a mockery of the country’s constitutional rights”. Other critics say his views “lack the experience and qualifications of rival candidates”. As head of South Africa’s constitutional court, he is responsible for upholding one of the most progressive constitutions in the world.
Documents seen by local newspapers detail appeal cases at the superior court over the past decade in which gender and legal activists questioned Mogoeng’s judgments.
One case was a 2001 appeal by a man who tied a woman to the bumper of his car and “drove the vehicle about 50 metres (55 yards) at high speed”. Mogoeng ruled that the two-year sentence imposed was “too harsh by any standards” and instead fined the man R2000 ($275). Among his reasons for reversing the charges were that the accused “pleaded guilty and therefore showed remorse and the complainant provoked him but did not sustain serious injuries”.
In 2004 a man appealed his sentence for the rape of his common-law wife. She was eight months pregnant and another person was present during the attack. Court records show Mogoeng upheld the conviction but reduced the 10-year sentence to 5 years. Although marital rape is a crime in South Africa, Mogoeng felt there were “mitigating factors”. He listed these as the appellant (1) was a first time offender, (2) was not a stranger to the complainant; and (3) “But for the presence of another person, the appellant and complainant would probably have had consensual intercourse.”
In a 2007 case a man jailed five years for attempted rape appealed his sentence. He and his victim were getting a divorce and one night he broke into her house and attacked her. Mogoeng was among the judges who suspended the man’s sentence, stating: “The desire to make love to his wife must have overwhelmed him, hence his somewhat violent behaviour. However, he neither smacked, punched, nor kicked her and used minimum force to subdue the complainant’s resistance.” The judge added, “The case is not comparable to a case where a woman comes across a stranger on the street who suddenly attempts to rape her.”
Cleared of a rape charge shortly before his election as President of South Africa, many thought these documents would pressure Zuma to rethink his nomination of Mogoeng. They did not.
Louise Olivier, the law programme manager at the Open Society Initiative for Southern Africa (OSISA), said: “The South African Constitutional Court is regarded by jurists both internationally and on the continent as a model, socially and legally progressive, and providing jurisprudence that protects and promotes human rights. To appoint judge Mogoeng Mogoeng as its chief justice makes a mockery of the substantial constitutional advances made by the court. Mogoeng’s previous judgments on gender equality and marital rape show that he has scant regard for legal protections that most South Africans hold dear.”
Olivier added: “It also shows either that President Zuma’s legal counsel have not done their homework in finding these judgments, as it is unlikely that after reading them they would have advised him to recommend Mogoeng’s appointment, or his views on women’s rights and marital rape find resonance within his presidency.”
The City Press newspaper said Mogoeng, a conservative Christian, is a member of the Johannesburg branch of the Winners’ Chapel International Church (also known as the Living Faith Church Worldwide). He provides “pastoral services”, such as house visits, but does not preach.
There was strong backlash against Zuma’s decision to overlook deputy chief justice Dikgang Moseneke for the position. Moseneke is widely seen as a formidable legal mind. He was appointed to the bench in 2002 by then president Thabo Mbeki. Mbeki resigned after being recalled by the ANC’s Executive Committee following a charge of improper interference in the National Prosecuting Authority, including the prosecution of Jacob Zuma for corruption. The Supreme Court of Appeal unanimously overturned the judgment against Mbeki but his resignation stood.
Pierre de Vos, a scholar and expert in South African constitutional law, said: “It is as if president Zuma, acting like a spoilt child who could not get his way extending the term of office of the outgoing chief justice because he relied on a clearly unconstitutional provision to do so, is now getting back at his critics by appointing the least suitable candidate to that post.”