Campaign to discredit Justice Mogoeng is based on spurious reasoning

A number of organizations have made written submissions which urge the Judicial Service Commission not to recommend the appointment of Justice Mogoeng Mogoeng as Chief Justice of South Africa. One of these is SECTION 27, a public law interest centre, which also represents the Lesbian and Gay Equality Project, Sonke Gender Justice Network and the Treatment Action Campaign. The Cape and Johannesburg Bar Councils have also weighed in with similar submissions.

In a nutshell, the bases of their objection is that Mogoeng J is not committed to human rights, in particular freedom of expression, the rights of homosexuals and the rights of women. A number of commentators also argue that he lacks sufficient experience as judge of the Concourt and too young at this stage to be the titular head of our judiciary. He is therefore not a fit and proper person for the position president Jacob Zuma is nominating him for.

What is also clear is that these interest groups do not question the judge's qualifications, nor do they suggest that he has a criminal record.

1. Justice Mogoeng's patriarchal attitude and approach to gender-based violence

In its submission, SECTION 27 says it sees "a trend of patriarchy in a line of judgments of Justice Mogoeng related to cases of gender-based violence". It then concludes that the judge "does not fully appreciate the values of equality and dignity that are foundational to our constitution" (my emphasis).

To any reasonable reader, the choice of the words "a trend of patriarchy in a line of judgments" suggest that if the reader were to examine a fairly large (at least more than just a few) number of judgments where women were victims of male violence, they would find that Justice Mogoeng treated all those women in an exceedingly condescending, contemptuous, discriminatory and injurious manner, so that one is left in no doubt that he regards men as superior to women, an attitude which is anachronistic to our bill of rights which guarantees everyone the right to equality and dignity.

 Far from a line of judgments, the organizations could find only three cases with which to prove a trend of patriarchy. Let us examine the judgments in search of patriarchy (treating male aggressors in a more favourable manner to their female victims, whose rights to equality and equal treatment before the law, as well as right to dignity, are violated by the learned judge).

S v Eric Mathibe

The accused was charged and convicted of assault with intent to cause grievous bodily harm. He had tied his girlfriend to the bumper of his car and drove on a gravel road at a fairly high speed over 50m. The magistrate sentenced him to 2 years imprisonment. In answer to the judge's query regarding the severity of the sentence, the magistrate replied, inter alia, that this type of offence is mainly committed against women, that dragging a woman in that manner was "ancient and barbarous".

The judge's remark in this regard is worth noting:

"All these are valid and legitimate factors which must be taken into account [in considering sentence]. They all justify the imposition of a heavy sentence ... In my view, the imposition of an effective term of imprisonment in circumstances where the accused is a first offender, who pleaded guilty and thereby showed remorse, who was provoked by the complainant and the complainant did not sustain serious injuries ...is too harsh by any standard" (my emphasis).

The judge then substituted the sentence with a fine of R4000 or two years imprisonment of which half was suspended for 5 years with conditions.

Far from demonstrating patriarchy or failure to consider "the indignity and psychological harm the complainant suffered", the judge makes common cause with the assertion that women are repeated victims of aggravated assault; and that a heavy sentence was ordinarily called for as a general deterrence. Furthermore, the judge did not quash the conviction.

S v Gilbert Kagiso Moipolai

The accused had raped his common law wife, who was 8 months pregnant, and sentenced to 10 yrs imprisonment. The accused appealed against both conviction and sentence. Justice Mogoeng dismissed the appeal against conviction but found substantial and compelling circumstances and suspended half of the sentence on conditions.

Contrary to lack of commitment to women's rights, the judge accepted in no uncertain terms several aggravating circumstances , which included the gender of the complainant, violation of her dignity and privacy as well as her state of being heavily pregnant. The judge said:

"It was indeed highly insensitive of the Appellant firstly, to punch an 8 months pregnant woman, secondly, to punch her so hard that her caused her to fall, and thirdly,  to punch her because her sense of decency and privacy did not allow her to share the same bed with the father of her children and another woman. It also heightens his moral blameworthiness for him to have had intercourse with her in the presence of another woman shortly after having been beaten up. It must have been humiliating".

This remark illustrates the judge's concern for the indignity and humiliation the woman suffered at the hands of her boyfriend.

Rightfully and as it is the court's duty, Justice Mogoeng considered mitigating circumstances. It is mysterious why SECTION 27 and the Councils of the Bar expected the judge to act unlawfully and not weigh both aggravating and mitigating factors.

The mitigating circumstances are very substantial and compelling by any standard:

(a) The couple's relationship of seven years, in which 2 children had sprung forth, was previously not abusive at all.

(b) This was the first time the accused had beaten the complainant.

(c) The assault was not serious and there were no injuries.

Nothing in this judgment is evidence of a judge who has no commitment to human and women's rights. It is not as if the judge released a guilty man nor substituted a trifling sentence.

S v Modise

This was an appeal by a man who had been sentenced to 5 years imprisonment for attempting to rape his estranged wife. The judge (Gura J and Mogoeng J concurring) found mitigating circumstances and suspended the whole sentence on conditions.

Apparently the source of gripe is where the judge remarked: "the relationship of husband and wife should never be overlooked by a judicial officer" in considering sentence. "The case is not comparable to a case where a lady comes across a stranger on the street who suddenly attempts to rape her. An effective term of imprisonment is, therefore, not appropriate in this case," said Gura J.

While it is true that marital rape should not be treated with less seriousness than the rape of a stranger where consensual intercourse would, by definition, be out of the question, every case of marital rape should be approached on its own merits when aggravating and mitigating circumstances are considered. A presiding officer who fails to apply her mind to each and every such case by weighing each and every peculiar circumstance, would be misdirecting herself and not serving the interests of justice.

A case of marital rape does not, by and of itself, necessarily have to attract a heavy sentence so that all mitigating circumstances must be rejected.

S v Modukanele

The accused had been sentenced by a magistrate to 2 years imprisonment for male rape per anum. In review, Justice Mogoeng observed:

"The sentence imposed is extremely lenient. It ignores the degradation, the violation of bodily integrity, the injuries sustained by the complainant ...and all other considerations that necessitate the imposition of severe penalties for the rape of a female, which should have been given expression to... the accused should have been punished more severely".

Apparently, the detractors compare the judge's leniency towards males convicted of women abuse with his attitude that a heavier sentence of between 8 and 15 years should have been imposed where the victim was a male person and infer that the judge harbours patriarchal attitudes. Of course nothing could be further from the truth: the above quotation indicate that the judge's attitude towards female and male victims of rape is that of equaity.

Nothing in these judgments (Mathibe, Modise, Modukanele and Moipolai), a mere three by Mogoeng J and another by Gura J in which Mogoeng J concurred, point incontrovertibly to what SECTION 27 asserts is "a patriarchal attitude, a failure to appreciate that all forms of violence against women are serious crimes, with devastating physical and psychological consequences, or failure to appreciate fully the values of equality and dignity of our Constitution".

SECTION 27 employs sophistry in making the startling and extravagant claim, without justification, that:

"Justice Mogoeng reached for arguments akin to "she asked for it", "she wasn't really hurt", "he was understandably sexually aroused" and "it wasn't really bad because he was not a stranger".

These inferences cannot be sustained by even the most perfunctory reading of the judgments.

Without citing authority, the organization asserts:

"In our view, an existing relationship [as in marriage] between perpetrator and victim is not a mitigating factor; to the contrary, it aggravates the injury".

This is simply a serious misdirection and an erroneous interpretation of established precedence.

2. Justice Mogoeng's attitude towards sexual orientation and the rights of homosexuals

The detractors question Justice Mogoeng's commitment to the rights of homosexuals to sexual orientation in view of his membership of a church denomination and its avowed opposition to homosexuality.

One has to wonder whether Justice Mogoeng, by virtue of being a judge, is not entitled to freedoms of worship, association and conscience as well as to hold and propagate moral views which are critical of fellow citizens' sexual orientation. Surely nothing in the Constitution, nor in established jurisprudence, precludes a judge from enjoying the same human rights that other citizens are entitled to.

In Le Roux & Ano v Dey Justice Mogoeng dissented, without writing a judgment, the only one to do so in a full bench. The judgment said "it cannot be actionable simply to call or to depict someone as gay even though he chooses not to be gay and dislikes being depicted as gay - and even though stigma may still surround being gay".

It isn't clear why Justice Mogoeng, whose track record shows a meticulous and skilled writer of his judgments, didn't do so in this instance. It's therefore unclear what he was disagreeing with. Perhaps Ncqobo CJ or the registrar should have clarified this departure from convention.

But that hardly supports the bold assertion that the judge is opposed to the rights of gays to equality and dignity before the law. Nor can his membership of a church which opposes homosexuality be absolute or circumstantial evidence that he is prejudiced against gays.

SECTION 27 asserts, citing Modukanele, with heavy exaggeration, "Notably, in contrast to cases of sexual violence committed by men against women (where the judge reduced the sentences imposed by the lower courts), he took a different approach to cases involving sexual violence committed by men against men. This approach is consistent with a person who holds stereotypical views of gender roles, viewing male rape as that which figuratively turns a man into a woman".  One case hardly makes cases.

In my view, imputing an anti-gay stereotype to Justice Mogoeng on the basis of 3 cases involving female victims and one case involving a male victim is simply unjustified and spurious.   

3. Justice Mogoeng's attitude towards judicial ethics

The Bar Councils exaggerate the ethical situation where Mrs Mogoeng prosecuted in a case where her husband was presiding officer. The fact of the matter is that the accused advocate knew the relationship and accepted that it posed no prejudicial threat towards the case. Ordinarily, on its own, such a situation would be unethical and irregular. But it is a different matter altogether in a case where all the parties are comfortable with it and accept the bona fides of the judge and his wife, born of familiarity with couple.  

4. Suitability of Justice Mogoeng for Chief Justice

It is clear from the above analysis that the submissions against Justice Mogoeng are spurious and frivolous grounds. The judge's remarks in his judgments are exaggerated in order to mislead the public. The judge has 25 years legal experience in the high court, 14 years of which he was on the bench, 8 of which he was judge-president. That makes him hardly an inexperienced judge.

It must be recognized that the legal profession is highly competitive, with a heavy measure of regionalism, tribalism and nepotism. Accordingly, it is an incubator of jealous and malicious practitioners. Some would want the Chief Justice to be chosen from their own familiar circle, obviously for selfish reasons.

Mogoeng J is as suitable as any other for the role of the titular head of the judiciary.

Gauta Komane is a former Regional Prosecutor and District Court Magistrate in North West province.

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