Mogoeng Mogoeng Chief Justice Constitutional Court
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 has served as a justice for two of twelve years. As Chief Justice, he will lead the court during the last decade of his twelve-year term. South Africa’s high court reviews questions related to the constitution and makes recommendations for judicial appointment to the president. Critics say Mogoeng’s influence will lead to a more conservative judiciary prone to deferring to the executive.
Civil Rights Group Objections
Several South African civil rights groups have condemned President Zuma’s choice for chief justice. They argue 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’s responsible for upholding one of the most progressive constitutions in the world.
Documents seen by local newspapers detail superior court appeal cases 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 didn’t 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 Justice Mogoeng upheld the conviction but reduced the ten-year sentence to five years. Although marital rape is a crime in South Africa, Mogoeng felt there were “mitigating factors”. He listed these – the appellant was (1) a first time offender, (2) 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, or 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.”
Open Society Initiative for Southern Africa
Louise Olivier, the law programme manager at the Open Society Initiative for Southern Africa (OSISA), said: “The South African Constitutional Court is regarded internationally and on the continent as a socially and legally progressive model that provides 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. His 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 that President Zuma’s legal counsel have not done their homework in finding these judgments. It is unlikely that after reading them they would have advised him to recommend Mogoeng’s appointment unless his views on women’s rights and marital rape find resonance within Zuma’s presidency.”
According to the City Press newspaper, Mogoeng is a conservative Christian and member of the Johannesburg Winners’ Chapel International Church (also known as the Living Faith Church Worldwide). He provides “pastoral services”, such as house visits, but does not preach.
Dikgang Moseneke, Thabo Mbeki, Jacob Zuma
There was strong backlash against Zuma’s decision to overlook deputy chief justice Dikgang Moseneke for the position. Moseneke is 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 Executive Committee following a charge of improper interference in the National Prosecuting Authority (NPA), including the prosecution of Jacob Zuma for corruption. The Supreme Court of Appeal unanimously overturned the judgment against Mbeki but his resignation stood.
Relying on a clearly unconstitutional provision, Zuma failed in his attempts to extend the term of office of the outgoing chief justice. Pierre de Vos, a scholar and expert in South African constitutional law, said: “It’s as if president Zuma, acting like a spoilt child who could not get his way, is getting back at his critics by appointing the least suitable candidate to that post.”