JSC approval of Judge Mogoeng's appointment as Chief Justice

COSATU has noted leaked reports that the Judicial Services Commission has taken a decision to support the appointment of Judge Mogoeng as Chief Justice. COSATU has decided not to pursue the matter but we wish to set the record straight on why COSATU made a submission opposing the appointment of Judge Mogoeng Mogoeng.

The controversy over Mogoeng cannot be reduced to a 'proxy battle' with the President, as suggested by some commentators. We also must correct a mistaken report by some members of the media of a remark by the ANC Secretary General. He was certainly not referring to COSATU when he referred to a ‘proxy battle', but others.

The issue of the ‘proxy battle' has been raised by some though, as a general and sweeping statement against all those who opposed the appointment of Judge Mogoeng.

Matters being raised by COSATU are issues of principle. COSATU finds completely problematic the posture that suggests that any in-principle disagreement with the President is a ‘war'. If we were to allow ourselves to be blackmailed by this logic, our nation would in no time be reduced into a choir of yes-men and women.

Having a chief justice who is not fully in sync with democratic values and the constitution has far-reaching implications, including the power of the Chief Justice to have a major influence on shaping the judiciary. The Chief Justice chairs the JSC, and could attempt to pack the courts with judges who espouse problematic values.

The Chief Justice position places an individual at the helm of the judiciary. This is integral to driving the type of judicial transformation that would be characterised not only by the values in our Constitution but would be responsive to the social and economic environment in our country where the majority continue to be subjected to rates of massive poverty, unemployment and inequality, and the social violence associated with these realities. 

We observed the JSC hearings on Judge Mogoeng's appointment closely. We acknowledge that contrary to some of the hysterical reactions and distortions in the media, Judge Mogoeng did respond fairly well to some allegations made against him, inter alia in relation to his role as a prosecutor in Bophuthatswana, and the claim that he lacked vision and experience in relation to administrative challenges facing the judiciary.

However Judge Mogoeng failed to adequately respond to our critical concerns, particularly relating to his judgements on gender-based violence, and violence against children. In our view the JSC did not seek to ask him penetrating questions that would have helped to allay our concerns.

Gender based violence and violence against children is not a marginal matter, but goes to the heart of some of the key challenges facing our society today.

Every good thing Judge Mogoeng said does not in our view nullify the fatal flaw exposed in the hearings, namely his unacceptable statements and judgements in relation to gender-based violence and violence against children. A transformed judiciary cannot be one which fails to address this critical challenge facing our society.

Our struggle for liberation will have been hollow if over half the population continue to be subjected to terror and various forms of oppression. Judicial transformation must therefore be consistent with driving forward the objectives of liberation not only towards advancing the continuing struggle of black people against minority interests, but also against the super-exploitation of working people, and the total emancipation of women from the triple oppression of race, gender and class.  Here we note that women are the worst victims of poverty, violence and racial oppression.

For some time we have been raising a concern about the development of an order that has become content to limit itself exclusively to dealing with some elements of racial oppression, at the expense of reversing the overlapping and continuing marginalisation of women and the working class. To us liberation is empty if women and workers largely remain victims of oppression and exploitation whose origins are colonialism of a special type and capitalism. There is no order of importance. Addressing the national contradiction is not the number one priority to be followed by the liberation of women and workers. These three antagonistic contradictions are intertwined and must be addressed simultaneously.

While we have achieved some limited gains in the struggle for liberation, in the case of women we have made little progress in overcoming patriarchy which continues to entrench itself within virtually every institution (including the judiciary) and corner of our society. South Africa remains a sick society. Too many are at ease with, or are turning a blind eye to, the ongoing oppression of women in their homes, society and in the workplace.

The high prevalence of gender-based violence in our country, as a specific expression of this institutionalised patriarchy, is reflected in relevant statistics. For example, we note that for 2008/2009 SAPS indicated that 71 500 sexual offences were reported, while the Medical Research Council estimates that true number islikely to be as high as nine times more than that of the reported statistics. 

Estimates reflect that as much as one in every six women who die in Gauteng is killed by an intimate partner.  Further evidence suggests that the largest increase in rape and sexual attacks have been against children under the age of seven. Some quoted reports indicating that a woman is raped in South Africa every seventeen seconds. Most rapes happen between people who know each other, not between strangers!

This underscores the need for State institutions and machinery to be mindful of their public obligations to respond appropriately to the oppression of women, including in the private sphere, and within this context a judge stands at the apex of the criminal justice system. 

The effect of decisions in these cases extends beyond the interests of justice for the specific victim involved, and has broader implications for affirming or contradicting inherent patriarchal notions in society.

We have submitted written comments noting our serious concerns regarding a number of judgments handed down by Justice Mogoeng, which trivialise the seriousness of sexual and gender-based violence and its effects on vulnerable groups, particularly women and children. 

In most of the cases the victims' prior relationship with the assailant was taken into account or injuries discounted as "not serious" as a basis for reducing sentences.

We have heard Justice Mogoeng's response at the JSC interview, which purports to identify other judgments where more severe sentences were imposed as a basis to discount concerns raised about his lack of sensitivity to gender-based violence. 

However, none of these can discount the appalling statements made in other judgments in his own words that reflect a mindset that is discordant with the type of values that should be inherent in a judiciary under our current constitutional dispensation. Also it goes without saying that at the level of Chief Justice these standards should be much more exacting.

Further, we have to ask the question in each of the cases, as to whether reactions would have been different from different sections of the legal profession, the public and the JSC in particular if the violence had been perpetrated on the basis of race.

We note specifically the case where the judge reduced a two year prison sentence on appeal to an effective R2000 and imposed a suspended prison sentence of one year against a man who tied a woman to his vehicle and dragged her over a distance of 50m. 

However, if this had been black person who was dragged behind a white man's vehicle, what would the reaction have been to a white judge's reasoning for reducing the sentence on the basis that the abrasions to the stomach, thighs knees did not constitute "serious injuries" and the black person had provoked the attack? We are left to wonder if the JSC would have found it appropriate to appoint the white judge to be the public face of South Africa's judiciary. If not, the question we asking is why the same weight is not attached to the plight of a woman?

Which other crimes of violence, with the exception of gender-based violence, would it be considered relevant as a mitigating factor to consider the prior relationship between an assailant and a victim and more specifically if they knew each other?

Further, the hearings have exposed serious questions relating to the role and composition of the JSC. We believe that the JSC has failed the country and itself by conducting a process that has not inspired confidence of progressive civil society.  Its responsibility to contribute to the ongoing transformation of the judiciary and access to justice is indivisible from its role in judicial appointments. 

In this latter instance judicial candidates should be scrutinised beyond just their technical expertise and experience to ensure that they reflect the appropriate mindset and values consistent with the Constitution. Party political posturing, in which members of the JSC line up in favour or against candidates on narrow party political grounds, also discredits a process, which should seriously interrogate issues of concern to broader society. There is a need for greater inclusiveness, transparency and accessibility for civil society to engage with the process.

Justice Mogoeng's initial appointment to the bench, combined with the JSC's reported decision to support his appointment as Chief Justice, raises serious questions as to the weight the JSC attaches to the calibre and particularly the mindsets of candidates being considered for appointment to the Constitutional Court and other courts. This has set a dangerous precedent regarding other future appointments where concerns of a similar nature are raised but are not treated as a valid ground to preclude appointment. 

Statement issued by Patrick Craven, COSATU national spokesperson, September 6 2011

Click here to sign up to receive our free daily headline email newsletter