Response by Justice Mogoeng Mogoeng
Introduction
1. I have received 21 comments from the Judicial Service Commission, some negative, others positive.
2. In my response to these comments I do not intend to deal with the positive comments. I will only address the issues raised in the negative comments. Due to constraints of time it is not possible to deal with them in any greater detail, as I would have loved to do.
3. These comments broadly speaking raise the following issues:
a) Gender sensitivity;
b) My perceived approach to sexual orientation;
c) Commitment to judicial ethical values; and
d) My perceived lack of experience in constitutional matters.
4. I am going to deal with these issues in turn. Before I do so, I would like to preface my comments by making some general comments concerning my general legal philosophy. This will help to put my comments on the issues raised in a proper perspective.
General
5. As a judge I took the oath to be faithful to the Republic of South Africa, to uphold and protect the Constitution and the human rights entrenched in it and to administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law. Key to my oath of office is the obligation to uphold the foundational values of our constitutional democracy, which include human dignity, equality, freedom, transparency and accountability.
6. As a judge of the Constitutional Court it is therefore my duty to uphold these values and if I am appointed as the Chief Justice, I will continue to uphold these values. Right at the outset therefore, I would like to refute any suggestion that I am insensitive to gender-based violence, that I am homophobic, that I have no, or little, regard for judicial ethics and that I do not subscribe to freedom of expression. I will elaborate more fully in this regard later in these comments.
7. There have been suggestions from some commentators, notably the Eastern Cape Bar Council, the Johannesburg Bar Council and the Cape Bar Council, that I lack the requisite experience for appointment to the position of Chief Justice. I disagree. I have been a judge since 1997, serving first as a judge in the North West High Court, later as the Judge President of that Court, then as a judge of the Labour Appeal Court and finally a judge of the Constitutional Court. In total I have been a judge for more than fourteen years. The only two judges on the Constitutional Court who have had a longer period of judicial service than me are Judges Froneman and Cameron. Apart from this I have been a Judge President for seven years, whereas none of my other colleagues at the Constitutional Court has been permanently appointed to lead a Division, small or big. Whilst I accept that the North West High Court is a small Division, the administrative and leadership skills required to manage the Court do not differ from other High Courts. In my capacity as the Judge President I interacted with other Judges President from busier divisions, Presidents of the Supreme Court of Appeal as well as the Chief Justices of the Republic of South Africa and we have shared experiences on leadership gathered from our respective courts. In addition to that I participated in the proceedings of the Judicial Service Commission when it considered appointments to the North West High Court and learned, to some extent, how its business is conducted. I have therefore benefitted immensely from my experience as a Judge President.
8. I now address the concerns raised in the various comments.
Gender sensitivity
9. A number of commentators have raised concerns about my approach to gender-based violence. They have suggested that I am insensitive to gender-based violence. In support of this assertion, they have relied on three cases involving rape against women where the sentences imposed by the trial court were reduced.
10. They have compared these cases to a case involving indecent assault on a man where I expressed the view that the sentence imposed was too lenient, to suggest that I care more about men than I do about women. Before I deal with each of these cases, I would like to point out that it is both unfair and disingenuous to select three cases from the many cases in which I have presided that involved rape against women, and suggest that these reflect my attitude towards gender-based violence.
11. What the commentators have deliberately failed to draw to the attention of the Commission is that I have presided in at least seven other cases involving rape of women in which I imposed or confirmed substantial periods of imprisonment, ranging from 10 years to life imprisonment. Due to time constraints, I only wish to draw attention to the following seven cases, although there are more, in which I vividly recall imposing life imprisonment.
a) The State v Gabriel Swarathle Case No: CC 156/2007
A 21 year old young man raped a 15 year old girl, causing her minimal injuries.
I sentenced him to undergo an effective term of 10 years imprisonment.
b) The State v Tshepo John Mafa Case No: CC 74/2007
A 20 year old man raped a woman whose age is not specified.
I imposed an effective term of 15 years imprisonment.
c) The State v Tsietsi Motlhoki Case No: CC 168/2007
A 28 year old man raped a 51 year old woman more than once.
I imposed an effective term of 20 years imprisonment.
d) The State v Goitseone Ebrahim v Khalane Case No: CC 21/2008
A man raped a woman.
I imposed life imprisonment.
e) The State v Phillip Moguru Case No: CC 37/2008
This was another rape case.
I imposed an effective term of 22 years imprisonment.
f) The State v Tuelonyane Baabua Case No: CC 76/2007
This was yet another rape case.
I imposed 20 years imprisonment.
g) The State v Sydney Ramonene Molefe Case No: CC 15/2007
In this rape case I imposed an effective term of 15 years imprisonment.
12. These cases and the others to which I have not been able to refer, clearly demonstrate that I am not insensitive and lenient to criminals when it comes to gender-based violence, as alleged.
13. Members of this Commission are mindful of the difficulty associated with the determination of an appropriate sentence. There is no easy formula for doing so. Over the years courts have developed a principle of the triad in order to help judicial officers arrive at an appropriate sentence. The principle involves a consideration of the interests of society, the interests of the accused and the nature of the crime. In addition, a number of factors are generally taken into consideration in evaluating these interests and these include the fact that the accused is a first offender, the seriousness of the assault and the relationship between the victim and the perpetrator.
Ultimately the exercise is one of a careful balancing of all the relevant factors in order to arrive at an appropriate sentence. Reasonable judicial officers will always differ as to what is an appropriate sentence in a particular case. This difference does not, however, establish bias for or against perpetrators or victims of crimes involving gender violence. They simply reflect a difference of opinion of honest judicial officers who are trying to determine what is the appropriate sentence. It is within this context that the sentences I imposed must be viewed and considered. They may well be perceived as lenient but this does not suggest that I am insensitive to gender-based violence. These cases to which I have referred above and the others that I have not been able to refer to, refute the suggestion that I don't care about the abuse of women.
14. To the extent that it may be necessary to comment on the cases identified by the commentators, I deal with them below:
a) The State v Mathibe
(i) There can be no doubt that the accused abused the complainant and that he treated her badly. That much I say in the short judgment that I wrote.
(ii) Anybody who knows anything about sentencing would remember what a difficult balancing act the process of sentencing is. I could not turn a blind eye to the nature of the injuries sustained by the complainant, after being dragged over the distance of 50 meters from the vehicle's stationary position.
(iii) The mitigating factors in this case led me to the conclusion that the accused must not just be condemned but should be given the option of a fine for this assault with intent to do grievous bodily harm. He was being given the opportunity to learn from his mistake, and to rehabilitate by imposing a suspended sentence so it could hang over his head.
(iv) In the end the accused was not merely given a fine. The two years imprisonment was retained, he was given the option of a fine and half of the sentence was suspended so that he would still serve one year imprisonment should he fail to pay.
(v) At the time, two years imprisonment was the maximum penal jurisdiction of a district court. I did not think, rightly or wrongly, that this was a case for the maximum penalty.
(vi) Finally, there is nothing I said, did, or did not do, to suggest insensitivity to the plight of women.
(vii) I tried to get the full record of this matter from the district court so that the nature of the provocation could be set out. Sadly, they could not locate it, even after a diligent search.
b) The State v Moipolai
(i) It is necessary to point out that my reasoning and the sentence imposed were informed by precedent. I relied on the judgment of The State v N of the Appellate Division (now the Supreme Court of Appeal), a judgment by Corbett JA, who later became Chief Justice of this country.
(ii) In The State v N, an acquaintance of the complainant raped her twice and she was traumatised thereby. A sentence of five years imprisonment was set aside and replaced with a sentence of five years imprisonment, of which half was suspended by the SCA. Borrowing from a higher court as I should, I allowed myself to be led by the Supreme Court of Appeal. I don't regard Corbett CJ as a patriarch who either hates women or is insensitive to the abuse that they experience on a daily basis. So I followed him. This approach resonates in all the other cases that are relied on for suggesting that I am unsuitable for appointment. I disagree with the criticism levelled against me. I think it is unfair. The following remarks at paragraph 22 of my Moipolai judgment bear testimony to my sensitivity to the plight of women:
"The reasons given by the Court a quo for imposing the sentence of 10 years imprisonment on the Appellant are that ‘...when an offence is serious, and prevalent, the Court is urged to hit hard.' Further reasons are that the Complainant was 8 months pregnant when the rape took place, the Appellant committed the rape in the presence of another woman, and the Appellant assaulted the Complainant. These are factors worthy of consideration. It was indeed highly insensitive of the Appellant firstly, to punch an 8 months pregnant woman, secondly, to punch her so hard that he 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."
(iii) I proceeded to say the following at paragraph 25 of the Moipolai judgment:
"I say this alive to the rationale behind the provisions of the Act in so far as they relate to rape and to the reality that we live in a society where physical and sexual abuse of women by boyfriends, husbands and other male persons is rife. It has indeed become so much of a concern that there are strong women bodies formed primarily for the purpose of combating this escalating abuse. Notwithstanding this, each case must be viewed and dealt with according to its own merits."
c) The State v Ezekiel Modise
(i) A man had throttled his wife and mounted her in an attempt to have sexual intercourse with her without her consent. We confirmed his conviction of attempted rape but wholly suspended the term of imprisonment of five years.
(ii) This was not rape. It was an attempt. The record shows that the appellant did not injure the complainant, even as he throttled her. The magistrate had imposed a sentence of five years for the attempted rape. This was the same sentence that the SCA had imposed in Mvamu, on which the Magistrate had relied for guidance. The difference between the two cases is that in Mvamu, the complainant had actually been raped, not once, but eight times. This distinction is made clear at paragraph [20] of the Modise judgment.
(iii) Our reasoning is sound and there is nothing about it to suggest hatred for women or insensitivity to their plight or abuse.
(iv) The cautionary rule referred to in this case has nothing to do with the mere fact that the matter relates to rape. It is only about the fact that the complainant was a single witness in relation to what the accused did to her. That cautionary rule was not abolished, at least then.
(v) Again the reasons and guidelines in The State v N were relied on for guidance in a rape case where the complainant and the accused knew each other.
15. It is clear that sound reasons were given for all the sentences imposed in the above matters. To the extent that I have been criticised for leniency, I have listed a good number of cases, from (a) to (g), in which I dealt with the perpetrators of rape firmly.
16. As for the opinions I expressed in these judgments, which allegedly "cast a shadow over Justice Mogoeng's suitability for judicial office", I need say no more than that I am as suitable as Corbett, Nestadt and Viljoen JJA in The State v N, Mthiyane, Cloete and Van Heerden JJA in The State v Mvamu 2005 (1) SACR 54 (SCA) at paras (15), (16) and (17), as well as Cameron and Lewis JJA in The State v Nkomo 2007 (2) SACR 198 (SCA) at paras (19), (20), (21) and (22).
17. The sentences imposed may differ but the reasoning we all employed is essentially the same. If the submissions based on gender sensitivity were to be upheld, then at least all the above judges would also be unfit for judicial office.
Attitude towards sexual orientation
18. Concerns have been raised in relation to my attitude towards sexual orientation. It has been alleged that I am homophobic. This allegation rests primarily on three grounds, namely:
a) the fact that I dissented from paragraphs 181 to 189 in the CC Judgment in Le Roux v Dey;
b) the absence of my reasons for dissenting; and
c) the attitude of my church, Winners' Chapel International, on homosexuality.
19. It has been suggested that my membership of the church does not square up with section 11(2) of the Code for the ethical conduct of judges, which prohibits judges from taking part in the activities of any organisation that practices discrimination that is inconsistent with the Constitution. In addition, it has been alleged that the principles of my church are inconsistent with my oath of office to uphold and protect the Constitution and the human rights entrenched in it, as well as the obligation to administer justice to all without fear, favour or prejudice.
20. The Constitution guarantees every South African freedom of religion, belief and opinion. In the exercise of this right, I have fully embraced the Christian faith.
21. I did and do so mindful of the fact that our Constitution was not meant to benefit Christians to the exclusion of all other people who either belong to other faiths or do not subscribe to any religion at all.
22. I need to make the point though, that my Church's opposition to homosexuality is not something peculiar to it, nor does the Church have as its core value, the attitude that homosexuality should not be practiced, or is a deviant behaviour. It is based purely on the Biblical injunction that a man should marry a woman and that there shall be a husband and a wife. The opposition to homosexuality is not therefore, a sine qua non for the existence of Winners Chapel International. The position it has adopted in this regard is similar to that of almost all Christian churches and religions, to which many other judges belong. It is unlike, for example, the Klu Klux Klan, whose core value is racial supremacy. The core values of our Church relate to Biblical teachings and the Church is not founded on homophobia. It is founded on the Holy Bible.
23. I exercise my freedom of religion as a Judge, alive to the commitment I have made publicly, that:
"I will be faithful to the Republic of South Africa, will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice without fear, favour or prejudice, in accordance with the Constitution and the law."
24. It is therefore my duty to uphold the constitutionally entrenched rights of the gay and lesbian community. First, because it is what my oath of office enjoins me to do, and second, it is the law made by my government, which I must obey according to the Bible. Romans 13:1-7 says:
"Everyone must submit himself to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. Consequently, he who rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves. For rulers hold no terror for those who do right, but for those who do wrong. Do you want to be free from fear of the one in authority? Then do what is right and he will commend you. For he is God's servant to do you good. But if you do wrong, be afraid, for he does not bear the sword for nothing. He is God's servant, an agent of wrath to bring punishment on the wrong-doer. Therefore, it is necessary to submit to the authorities, not only because of possible punishment but also because of conscience.
This is also why you pay taxes, for the authorities are God's servants, who give their full time to governing. Give everyone what you owe him: If you owe him taxes, pay taxes; if revenue, then revenue; if respect, then respect; if honour, then honour."
25. My duty as a Judge is to ensure that nobody prevents the gay and lesbian community from exercising their rights, or persecutes them for doing so. The people and the authorities of this country have made laws. I am obliged by my oath of office to uphold and protect the Constitution and the human rights entrenched in it and to administer justice to all without fear favour or prejudice in accordance with the Constitution and the laws of the Republic of South Africa.
26. Against this background and properly understood, Le Roux v Dey does not prove that I am homophobic in outlook, nor does it even remotely suggest that. Paragraph 182 does not only refer to gay people. It reads:
"The submission embodies a germ of truth but the basis of the injury must be carefully delineated. It is not, and should not be considered to be, an actionably injurious slight to offend someone's feelings by merely classing them in a condition the Constitution protects - be it religious, racial, age, birth or sexual. To simply call someone Muslim, Christian, gay, black, white, lesbian, female, male, an old-age pensioner, atheist, Venda, or Afrikaans-speaker is not actionably injurious. Something more is needed."
27. It deals with gay people, Christians, males, and even Venda people. To isolate the gay people, just because the case was about the imputation of a gay orientation on Dr Dey, is unfortunate. Paragraph 182 and the other paragraphs which my other colleagues chose to endorse relate to everybody, including Christians.
28. Hopefully the context within which my silence must be viewed will help. The majority judgment on substance is that written by Brand AJ. The minority judgments are those written by Cameron J and Froneman J, as well as that penned by Yacoob J, in which Skweyiya J concurred.
29. I concurred in the majority judgment authored by Brand AJ. A suggestion was then made that we endeavour to reach consensus on a common set of facts and adopt the principles of defamation in the form of a court judgment. I embraced that proposition.
30. A few days before the judgment was handed down, one colleague implored us to consider endorsing the minority position in the Cameron J and Froneman J judgment relating to the paragraphs mentioned above. It was made clear that this was absolutely optional. I was happy to live with Brand AJ's judgment as I was with the factual background and the exposition of the law of defamation. I was unconvinced about the need to endorse a minority judgment so close to the date of delivery of judgment. The possibility of writing two or three sentences explaining my position did cross my mind but upon further reflection I saw no need to do so because these paragraphs relate to a minority judgment. I did not want to hold up the judgment, which had already been delayed for some time, while pondering on how exactly to express myself in this regard. At the same time I was concerned about providing superficial reasons and doing so in haste.
31. Perhaps, and on reflection, I should have given some reasons no matter how superficial or brief they were. But to put the record straight, I am not against the exercise of any constitutional right, including the right of the gay and lesbian people.
32. Finally, my judgment in State v Modukanele refutes any suggestion that I am homophobic. In particular I would like to draw attention to the following passage:
"In the instant case there was full anal penetration. The legal recognition of anal intercourse as a legitimate form of sexual expression for gay men, which then puts such intercourse on par with vaginal intercourse among heterosexuals, accentuates the need to punish male rape just as heavily as female rape. The sentence imposed on the accused in this matter is, in our view, extremely lenient. It ignores the degradation, the violation of bodily integrity, the injuries sustained by the complainant, the accused's abuse of the trust and hospitality of the Bosi's and all the other considerations that necessitate the imposition of severe penalties for the rape of a female, which should equally have been given expression to." (See para 12 of the judgment.)
33. This passage makes it abundantly plain that I recognise and am committed to upholding the rights of gays and lesbians consistently with the provisions of the Constitution. I therefore refute the suggestion that I am homophobic.
Commitment to Ethical Behaviour
34. I have been criticised for not having recused myself when my wife appeared before me on appeal in a matter that was set aside by the SCA. At the time there was no certainty in relation to whether or not a judicial officer's spouse or child could appear before that judicial officer. This matter was discussed with the former Judge President of our Division, Judge President M.W. Friedman, and other senior Judges in our Division, including Waddington, Hendler and Khumalo JJ. They assured me that there was nothing wrong with my wife appearing before me, even in a trial. I took the position that she would only appear before me in appeals.
35. Whenever she appeared before me in appeals, I made it a point that counsel knew that she was my wife and left it to counsel to clear up the matter with their clients.
36. At the time when we decided the Dube matter, I was aware that Advocate Matthew Chaskalson had appeared in at least 13 matters while his father was presiding as the Chief Justice in the Constitutional Court. I have since discovered that he actually appeared 32[1] times before his father. Harms DP's son appeared before him at least twice in the SCA,[2] Wim Trengove SC appeared at least once before his father when his father was an Acting Judge of the Constitutional Court,[3] and my colleague Justice Yacoob's daughter appeared in the Constitutional Court at least twice while her father was a member of the panel.[4] Judges have also sat in cases involving their colleagues.[5]
37. I understand the concern to be that when a Judge's spouse appears before a panel of which his or her spouse is a member, a reasonable perception might well arise that the Judge-spouse could be biased in favour of the counsel-spouse. Surely the same must apply to a son or a daughter under similar circumstances. However, in relation to spouses the matter appears to have been settled by a decision of the SCA. In addition, two recent decisions of the Constitutional Court in Bernert and De Lacey provide some guidance for the future.
38. In the circumstances, the fact that I sat in a case in which my wife appeared does not show that I have no regard for judicial ethics. Nor does it show that I do not pay attention to the need for impartiality. The decision to sit only on appeals was taken after extensive discussions within my Division and I followed that decision. On reflection and in the light of the more recent decisions mentioned above, it may well be that I should not have sat in the case.
Age and seniority
39. Concerns have been raised about my age and seniority on the Constitutional Court.
Age
40. There is nothing wrong with my age of 50.
(i) When the Chief Justice of Namibia, Honourable Peter Shivute, was appointed, he was 41 years old.
(ii) The Chief Justice of the United States of America, Honourable John Roberts, was 50 years old when he was nominated and appointed Chief Justice of that country.
(iii) The President of the Federal Constitutional Court of Germany, Honourable Andreas Voβkhule, was 46 years old when he was appointed to that position.
(iv) The Chief Justice of New Zealand, Honourable Dame Sian Elias, was 50 years old when she was appointed to that position.
I cite these examples to show that age is not a decisive factor. What matters is one's experience.
Perceived Lack of Experience
41. Some have suggested that my judicial experience is too limited to warrant my appointment as Chief Justice.
(i) When the current Chief Justice of the United States of America, Honourable John Roberts, was appointed, he had been a legal advisor to President Bush and a Judge of the Circuit Court for the District of Columbia for only two years. Initially he was nominated for appointment as a Judge of the US Supreme Court. When Chief Justice Rehnquist died, the President then nominated him for the position of Chief Justice. He had never been a Judge of the US Supreme Court and only had two years of judicial experience. It is surprising that the American Professors are now suggesting that in our case, our Deputy Chief Justice should have been nominated by reason of his seniority when that is not the practice in their own country.
(ii) The President of the Federal Constitutional Court of Germany had no recorded judicial experience. He was a professor when he took over the leadership of that Court.
(iii) The Chief Justice of New Zealand had four years of judicial experience when she was appointed as Chief Justice.
(iv) The Chief Justice of Namibia was a Magistrate for nine years, a High Court Judge for three years, and a Judge President for one year before he became the Chief Justice.
42. These examples show that experience on the Court to which a judicial officer is appointed as a Chief Justice is not necessarily decisive. There are a number of considerations that must be taken into account, including the person's administrative skill and experience in law in general. In my case, I have been a judge for more than fourteen years. Of the Constitutional Court Justices, I have the third longest judicial service. I have been on the Constitutional Court for almost two years and I know and understand the workings of the Constitutional Court. The fact that I have not written the so-called ground-breaking judgments, as some commentators have suggested, is not decisive.
43. Apart from this I have been a Judge President for seven years and in that capacity have had the opportunity to interact with other heads of courts from far busier Divisions than my Division, the Presidents of the SCA and two Chief Justices. And I have taken part in a number of initiatives aimed at improving access to justice and to ensure speedy resolution of disputes before our courts. These are relevant considerations.
44. I accept that I was the Judge President of a small Division of the High Court, as emphasised by some. What matters, however, is not the size of the division, but the leadership capacity that the individual displays in his or her court.
45. Other relevant considerations include whether or not one has a clearly defined vision to address challenges that his or her court, and other courts in that province, are facing; whether anything has been done in pursuit of the vision that he or she has and what fruits, if any, that exercise has yielded; whether one has a plan now to meet the challenges that the entire justice system is confronted with and whether these challenges have been diagnosed and, if so, what they are; an understanding of the transformation imperatives of our time and a plan for the actualisation of that transformation, including gender equality issues; the independence of the judiciary; and court efficiency enhancement issues.
46. I say with all sense of humility that I have a track record for taking measures to enhance access to justice, court efficiency and the independence of the judiciary. This record transcends the borders of the North West Province, as evidenced by the workshops I organised and the training for Magistrates I initiated, which spread to other provinces.
47. My work in the National Case Flow Management Committee and the Access to Justice Conference demonstrates the capacity and readiness to address the challenges that the justice system is facing now.[6]
48. It is worth noting that as a Judge President, I was not confined only to matters affecting the Division I led. Together with other Heads of Courts, I addressed issues that affect the entire Judiciary. I was exposed to so many opportunities to grow and broaden my understanding of the national leadership issues and to enhance my capacity to handle national issues affecting the court system, with the result that, if appointed to the position of Chief Justice, I would already be family with most of the demands of that office.
49. I was privileged to work closely with former Chief Justice Sandile Ngcobo and I therefore have a good idea of the challenges that lie ahead.
50. This is not an exhaustive response to all the issues raised by those challenging my suitability for appointment. But I have tried to do what I could within the limited time at my disposal.
Some comments on the issues raised by Nadel
51. Nadel has raised issues in relation to my role as prosecutor and the type of cases I prosecuted and has drawn attention to some of my decisions that were set aside on appeal. To the extent that it is necessary to deal with those issues, I do so briefly below.
52. By way of background it is perhaps necessary for me to explain how I became a prosecutor.
My role as a prosecutor
53. I come from a very poor background. My mother was unemployed from 1968 and my father was the sole breadwinner. He worked as an unskilled labourer at a firm by the name of Hall Long More at Luipardsvlei, Krugersdorp. When I went to University his monthly wage was about R400.00.
54. For this reason, the family was under-resourced to sponsor my university education. At the time, the Bophuthatswana Government had a bursary available for all the students who had done well in their matric examinations. You did not even have to apply for it, you were approached and if you were interested, you would then fill in the bursary forms and they would then pay for you.
55. I was pleasantly surprised to receive a bursary letter from the Bophuthatswana Government in 1981. This was so because just the previous year, on June 16, I had organised the student body at Hebron College of Education, where I was a matric student, to attend classes wearing an all-black attire in commemoration of what had happened to our brothers and sisters on June 16 1976. For that I was dismissed from school together with seven other students (the names of Mr Pascal Moloi, Mr Jerry Hlongwa and Mr Kingdom Motaung come to mind). The students boycotted classes for weeks demanding our return. The President and Cabinet of Bophuthatswana came to Hebron College of Education in an effort to convince the students to return to classes and forget about us. They stood their ground in solidarity with us. Given the strategic role played by that college in the education system of Bophuthatswana, we were eventually reinstated, though labelled by government as communists.
56. Returning to the bursary, the condition attached to the bursary was that after completing my studies I would either pay the money back or serve the government for the period that I was paid for at the University. Given my poor financial background I had to serve. And I did.
57. I was employed as a High Court (then Supreme Court) Prosecutor. My political standpoint was known by my boss, Advocate J.J. Smit SC, now the Director of Public Prosecutions, North West Province. For that reason, not once was I allocated a political trial.
58. But somebody had to prosecute persons accused of the murders, robberies and gruesome rapes of innocent victims of violence, even during Apartheid. And I did. For that I have no regret, just as I am not apologetic for the bursary that the Bophuthatswana government assisted me with.
59. When an urgent application for the stay of execution in the matter of State v Ngobenza came before Theal Stewart CJ, my boss, Advocate J.J. Smit SC, assigned the duty to oppose the application to me, and I did. At the time the death penalty had not yet been abolished. It was the law. The new Constitution did not exist. More importantly, Makwanyane had not yet been decided in favour of abolishing the death penalty.
60. It may interest you to know that in 1992 or 1993, my former boss and I were on radio against each other. He presented argument for the retention of the death penalty and I was arguing for its abolition, based on what I had learnt from my Masters programme about the effect and cruelty of the death penalty.
61. There is therefore no substance in the suggestion that I was some kind of an agent or puppet of the Apartheid machinery.
My role as an advocate in private practice
62. It is evident from my CV that I fulfilled a leadership role at the Mafikeng Bar Association as Vice-Chairperson and also as the Chairperson of the Lawyers for Human Rights (Bophuthatswana Chapter). It was not fashionable to be associated with Lawyers for Human Rights then. Whenever there were human rights violations that required action, we would liaise with the national office in Johannesburg to act on those matters.
63. When ANC-aligned students were beaten up and arrested, the attorneys turned to me, among a few others, to represent them for free. (Details are available if required). When the ANC-aligned Ministers Fraternal, led by Reverend Tselapedi, marched on Mafikeng before independence, and the Bophuthatswana Police prevented them from proceeding with their march, I was briefed by reason of my human rights track-record, to represent them in the urgent application that was launched.
64. Any honest person who knew me during the Apartheid era would vouch for my commitment to human rights.
65. The ANC-led government would not have appointed me to chair many important Boards of Directors for parastatal organisations, if I were the puppet of the system, as some commentators would have the nation believe.
66. I believe it was for this reason that I was nominated for the position of Judge of the High Court by Reverend Tselapedi, who was then the Vice-Chairperson of the ANC in the North West Province and MEC for Agriculture. For what it is worth, although I became actively involved in ANC activities, my political baptism and orientation was in the Black Consciousness Movement.
Comments on some of the cases raised by Nadel
67. Gondwe v Minister of Home Affairs and Others
(i) The applicant was on the verge of being deported.
(ii) I did not allow it to happen in the manner that it was intended to be carried out without following proper procedure.
(iii) He was saved from deportation.
(iv) The statement says the relevant institutions were free to arrest the applicant should they deem it appropriate to do so. Presumably, they would satisfy themselves whether or not the law permits the arrest and it would obviously be appropriate to arrest the applicant only if that were sanctioned by the law.
(v) The criticism lacks merit.
(vi) The following remarks from paragraph 3 and 4 of my judgment in Gondwe address the issues raised by Nadel adequately:
"What is central to this application is that the Applicant is presently in possession of an identity document that says that he is a citizen of the Republic of south Africa. He has neither renounced his citizenship nor has the first Respondent, or any official to whom the first Respondent may have delegated his power, deprived the Applicant of his citizenship in terms of the law. I asked counsel for the Respondents whether that crucial decision was taken. He replied that he did not have that information. The fundamental problem that I am confronted with is, therefore, that the Respondents were about to deport a citizen of this country at the time when this application was launched. The merits or demerits of the parties' cases as to whether or not the Applicant should have been issued with a birth certificate and identity document, which bear testimony to his citizenship, are irrelevant to me at this stage. They could be of relevance to the first Respondent in considering whether or not to deprive the Applicant of his citizenship. The South African Citizenship Act 88 of 1995 vests the power to deprive people of their citizenship in the first Respondent and not in this Court. This Court cannot usurp the first Respondent's power. The present position is that the Applicant is a South African citizen. The first Respondent would first have to deprive him of his citizenship before the Applicant may be deported. The Respondents cannot, therefore, deport him from South Africa for as long as he has not been lawfully deprived of his citizenship. I turn to the question whether the Respondents should be restrained from arresting or causing the Applicant to be arrested.
[4] This Court cannot restrain the Respondents from either arresting or causing the Applicant to be arrested. There may well be reasonable grounds for arresting him. Besides, the Applicant has failed to explain why such a restraining order is necessary."
68. Molema v MEC for Safety and Security
(i) Context and evidence are important in addressing matters of this kind. I was criticised for not having found that the police had in fact tortured Mr Molema.
(ii) In this regard, this judgment speaks for itself in paragraphs 15 and 17.2 below:
"[15] I was not impressed by Marcel, Gavin, Tebogo and Anis as witnesses. They made a very poor impression on me and I am satisfied that they are not credible witnesses. Some of the key unsatisfactory features in their evidence are set out below. Anis testified about two incidents in which Marcel was smacked, while still at his house, which no other person, including Marcel, knew anything about. Marcel, Tebogo and Gavin all testified that several hard blows were delivered to the back of Marcel with an iron rod. However, no trace of an injury which could be said to have been caused by an iron rod was found. In fact, no injury whatsoever was found on the head and back of Marcel. Dr Stevens, who examined the unclad body of Marcel on the day on which those injuries were allegedly inflicted, did not see any such injuries and neither did Dr Malan two days later. Furthermore, Marcel neither complained to any of the doctors about any pain on his back, head, hip nor foot. He did not even alert Dr Stevens to the right hip which he said was sore and swollen at the time of the examination by Dr Stevens. This is a fundamental flaw in the evidence of Marcel. None of the witnesses can be heard to claim that he mistakenly thought hard blows with an iron rod or baton were delivered to the body of Marcel several times. It is all or nothing. These witnesses were all very emphatic about the plurality of the strikes and their viciousness. The absence of a trace of any of them in itself does a telling blow to Marcel's case. But this is not all. Marcel, Tebogo and Gavin all said that Marcel became unconscious after the assault at Amos House. This is obviously irreconcilable with the fact that he could still limpo as he came around the corner of Amos House to the combi. How can a person who has fainted be limping at the time of his unconsciousness? Furthermore, how can a person who is being dragged limp? Marcel said that he was smacked by a white policeman once or twice at the house of Mojaki's girlfriend. That white man is not Vice. Gavin said that Vice and others assaulted Marcel with an iron rod. Tebogo said that only Vice hit Marcel with what looked like an iron rod. These are also material contradictions between their versions. The victim, Marcel, said someone other than Vice smacked him. He never said anything about the use of the more painful rod at that stage. Gavin and Tebogo were so eager to strengthen Marcel's case that they said an iron rod was used at the house of Mojaki's girlfriend. I find all these to be lies and I am satisfied that all of these witnesses were lying. There are other reasons for arriving at this conclusion that I do not consider necessary to burden this judgment with."
"17.2 Gavin said that as Vice smacked Marcel, the latter almost fell. Marcel himself said that he fell. Vice also said that Marcel, albeit as a result of a different cause, fell to the ground. Vice and Mothofo said that Marcel resisted arrest aggressively. This resulted in a wrestling of sorts between him and Vice which led to both men falling to the ground and on their bellies. This, in my view, is the probable cause of Marcel's knee injury as well as the other injuries that he sustained. It is important to bear in mind that the injuries to Marcel's eye, ear and cheek are all on the left-hand side. The question is whether this was caused by several blows with clenched fists as alleged by Marcel or something else. I am satisfied that on the probabilities these injuries must have been sustained at the time when Marcel fell to the ground, or that while he was on the ground he must have, in his drunken stupor and while continuing to resist arrest, hit the left side of his head against some object or the ground itself. These injuries could also have been sustained during the scuffle preceding or following the fall, I am also satisfied that these injuries were probably caused by a single blow to the left side of the head under the above or related circumstances. They were definitely not caused by the alleged assault. Besides, as I said above, there is not a single credible witness who testified about the injuries on Marcel's behalf."
(iii) I find the sweeping generalisations made in relation to this case unacceptable.
69. The State v Booi
(i) The duty of a judicial officer is to administer justice by interpreting and applying the law. It is not to be driven by emotions or sentiments in total disregard for the law and the facts in dispensing justice.
(ii) The law had not been complied with in The State v Booi. Just as we sometimes have to set free people who appear to be guilty when the law cries out for their freedom, I had to set aside the conviction and sentence in this matter.
(iii) The intermediaries were neither sworn in nor affirmed. In my view, it was necessary to have done so.
(iv) The cases I relied on indicate a need for the presiding officer to satisfy himself or herself that the child would suffer undue stress before an intermediary is used. That was not done.
(v) Of course I was mindful of the negative implications of a fresh hearing for the children. They did not have to face the accused person again. A proper procedure would presumably be followed and the intermediary could then be used from a separate room other than the courtroom where the accused persons are.
(vi) Every requirement is fully motivated in that judgment. The criticism is unfortunate.
70. The State v De Beer
(i) I was unable to find a single case, at the time, that had addressed the 4km rule in terms of which the Magistrate's Courts acquired jurisdiction in areas where they would otherwise not have had jurisdiction.
(ii) I dealt with the matter as I saw fit. The SCA set aside my decision and I took it as a lesson.
71. Molotlegi and Another v Mokwalase
(i) Here I got the law completely wrong. It does happen to all of us sometimes.
(ii) Besides, our court system has appeal procedures precisely because it is recognised that judicial officers are human beings and may therefore err in their decisions. It would then be for an appeal court to correct whatever error they may have made.
(iii) I did not disclose Molotlegi and The State v De Beer, not because I wanted to conceal them from scrutiny, as suggested by some, but because I had very limited time within which to complete the questionnaire. As a result, the cases confirmed and those overturned are those that I had filled in for the 2009 interview. I did not update that list. Dishonesty is not the reason for not listing them. In fact, there may well be other cases in the same category.
Concluding remarks
72. By way of conclusion, let me refer back to what I said at the beginning of these comments. I am committed to upholding and protecting the Constitution and the human rights entrenched in it. And I will continue to administer justice to all without fear, favour or prejudice in accordance with the foundational values of our Constitution, including human dignity, equality and fundamental freedoms.
73. The cases to which I have drawn attention amply demonstrate that I am neither homophobic nor gender insensitive when it comes to the rape of women. I decide cases based on the facts and the Constitution and the Law. And if I am appointed as the Chief Justice, I will continue to do so, as I have done for the past fourteen years as a judicial officer.
Thank you.
Annexure A
List of Constitutional Court cases heard by Chaskalson CJ in which M Chaskalson appeared
1. Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa, 1996 (4) SA 744 (CC).
2. President of the Republic of South Africa and others v South African Rugby Football Union and others 2000 (1) SA 1 (CC).
3. Khumalo and others v Holomisa 2002 (5) SA 401 (CC).
4. Investigating Directorate: Serious Economic Offences and others v Hyundai Motor Distributors (Pty) Ltd and others; In Re Hyundai Motor Distributors (Pty) Ltd and others v Smit NO and others 2001 (1) SA 545 (CC).
5. President of the Republic of South Africa and others v South African Rugby Football Union and others 1999 (4) SA 147 (CC).
6. Transvaal Agricultural Union v Minister of Land Affairs and another 1997 (2) SA 621 (CC).
7. Ex Parte Gauteng Provincial Legislature: In Re Dispute Concerning the Constitutionality of Certain Provisions of the Gauteng School Education Bill Of 1995 1996 (3) SA 165 (CC).
8. Du Plessis and others v De Klerk and another 1996 (3) SA 850 (CC).
9. Bhe and others v Magistrate, Khayelitsha, and others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole and others; South African Human Rights Commission and Another v President of the Republic of South Africa and another 2005 (1) SA 580 (CC).
10. Daniels v Campbell NO and others 2004 (5) SA 331 (CC).
11. Minister of Finance and another v Van Heerden 2004 (6) SA 121 (CC).
12. Du Toit and another v Minister of Welfare and Population Development and others (Lesbian and gay Equality Project as amicus curiae) 2003 (2) SA 198 (CC).
13. Phillips and another v Director of Public Prosecutions, Witwatersrand Local Division and Others 2003 (3) SA 345 (CC).
14. Islamic Unity Convention v Independent Broadcasting Authority and others 2002 (4) SA 294 (CC).
15. Van der Walt v Metcash Trading Ltd 2002 (4) SA 317 (CC).
16. Ex Parte Minister of Safety and Security and others: In Re S v Walters and another 2002 (4) SA 613 (CC).
17. S v Jordan and others (Sex Workers Education and Advocacy Task Force and others as amicus curiae) 2002 (6) SA 642 (CC).
18. South African Association of Personal Injury lawyers v Heath and Others 2001 (1) SA 883 (CC).
19. S v Mamabolo (E TV and others intervening) 2001 (3) SA 409 (CC).
20. Minister of Education v Harris 2001 (4) SA 1297 (CC).
21. Executive Council, Western Cape v Minister of Provincial Affairs and Constitutional Development and another; Executive Council, KwaZulu-Natal v President of the Republic of South Africa and others 2000 (1) SA 661 (CC).
22. S v Baloyi (Minister of Justice and another intervening) 2000 (2) SA 425 (CC).
23. National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC).
24. Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and others 1999 (1) SA 374 (CC).
25. President of the Republic of South Africa and others v South African Rugby Football Union and others 1999 (2) SA 14 (CC).
26. Beinash and another v Ernst & Young and others 1999 (2) SA 116 (CC).
27. South African National Defence Union v Minister of Defence and another 1999 (4) SA 469 (CC).
28. Amod v Multilateral Motor Vehicle Accidents Fund 1998 (4) SA 753 (CC).
29. Member of the Executive Council for Development Planning and Local Government, Gauteng v Democratic Party and others 1998 (4) SA 1157 (CC).
30. Fraser v Children's Court, Pretoria North and others 1997 (2) SA 261 (CC).
31. Brink v Kitshoff NO 1996 (4) SA 197 (CC).
32. Ex Parte Speaker of the KwaZulu-Natal Provincial Legislature: In Re Certification of the Constitution of the Province of KwaZulu-Natal, 1996 1996 (4) SA 1098 (CC).
Annexure B
List of cases in heard by Harms JA in which C Harms or DR Harms appeared
1. Nestlé (South Africa) (Pty) Ltd v Mars Inc 2001 (4) SA 542 (SCA).
2. Vari-Deals 101 (Pty) Ltd t/a Vari-Deals and Others V Sunsmart Products (Pty) Ltd 2008 (3) SA 447 (SCA).
Annexure C
List of Constitutional Court cases heard by Trengove AJ in which Trengove SC appeared
1. Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC).
Annexure D
Cases in which S Yacoob has appeared before Yacoob J
1. Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others 2010 (6) SA 182 (CC).
2. Koyabe and Others v minister for Home Affairs and Others (Lawyers for Human Rights as Amicus curiae) 2010 (4) SA 327 (CC).
3. Moutse Demarcation Forum and Others v President of the Republic of South Africa and Others [2011] ZACC 27, handed down on 23 August 2011.
Annexure E
CONFERENCE STATEMENT
ACCESS TO JUSTICE CONFERENCE:
TOWARDS DELIVERING ACCESSIBLE AND QUALITY JUSTICE FOR ALL
By Chief Justice Sandile Ngcobo
7-10 July 2011
Hilton Hotel, Sandton, Johannesburg
PREAMBLE
NOTING that many of our people do not enjoy the full benefit of the right to access to justice, enshrined in section 34 of our Constitution;
AND NOTING that deprivation of this fundamental right is as a consequence of various factors including, but not limited to -
- systemic challenges in the administration of justice in our courts, namely, inefficient, inadequately trained and under resourced administrative personnel, complex, cumbersome pre-trial procedures and unreasonably long delays in the finalization of both criminal and civil trials primarily due to the pace of litigation (both criminal and civil) being set and controlled by the litigants and not by the judicial officers;
- the prevailing inequities of poverty, lack of information and paucity of adequate legal representation affecting in particular the most vulnerable sectors of our society, namely, the poorest of the poor, rural inhabitants, women and children; and
- inadequate coordination among role players in the justice cluster;
AND WHEREAS it is the responsibility of government as a whole to ensure that access to quality justice for all is realised;
AND WHEREAS the Judiciary under the leadership of the Chief Justice of the Republic of South Africa accepts the primary responsibility for the realisation of this objective;
WHEREFORE the Conference agreed to implement the following measures under the leadership of the Chief Justice:
Governance Measures
1. The Chief Justice shall establish a committee, comprising all key stakeholders in the justice system, to set benchmarks and performance standards for access to quality justice and to monitor implementation;
2. Structures which monitor access to justice and the functioning of the courts shall be established at a national, provincial, sub-cluster, and district level;
3. Heads of courts shall be empowered to effectively and efficiently implement these measures;
Inter-branch Relations
4. Judicial integrity and accountability shall be upheld by the judiciary and supported by the other two branches of government, namely, the executive and the legislature, as required by the Constitution;
5. The three branches of government will continue to carry out their constitutional mandate in a manner that is sensitive to the doctrine of separation of powers;
6. All steps necessary shall be taken to facilitate the institutional and functional independence of the judiciary;
7. Closer cooperation shall be fostered between the Ministry of Justice and Constitutional Development and the Judiciary in relation to programmes and all important matters of mutual interest;
Stakeholder Engagement
8. Prosecutors, public defenders and members of the private profession shall be consulted and encouraged to participate in all efforts designed to enhance access to the delivery of quality justice for all, including the establishment of a pool of professionals to render pro bono services to the poorest of the poor;
9. Innovative ways of raising public awareness about access to quality justice shall be explored;
10. There shall be structured interaction between the judiciary and the media;
Regulatory Review
11. Rules and legislation that stand in the way of access to quality justice for all shall be suitably amended;
Case Management
12. Judicial case management shall be implemented to ensure that the justice to which South Africans are given access is of a high quality and delivered with reasonable speed;
Specialised Courts
13. All measures necessary to enhance access to affordable justice shall be taken, including sufficiently restructuring and reasonably resourcing small claims courts, community courts and traditional courts;
14. More attention should be given to sexual violence cases and cases affecting children;
Education and Training
15. Education and training shall be prioritised for both judicial officers and support staff;
Alternative Dispute Resolution
16. Steps shall be taken to introduce alternative dispute resolution, preferably court-annexed mediation or the CCMA kind of alternative dispute resolution, into the court system;
17. More use shall be made of restorative justice and diversion programmes;
Information Technology
18. Advanced court technology, audio-visual postponements and electronic filing shall be introduced and widely implemented.
(This documented was presented to the Judicial Service Commission, September 3 2011)
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