COSATU SUBMISSION ON THE NOMINATION OF JUSTICE MOGOENG MOGOENG FOR THE POST OF CHIEF JUSTICE
SUBMITTED TO THE JUDICIAL SERVICES COMMISSION ON 3 SEPTEMBER 2011
COSATU notes that on 20 August 2011 the Judicial Services Commission (JSC) resolved to interview incumbent Constitutional Court judge, Justice Mogoeng Mogoeng, for the post of Chief Justice in response to his nomination by the State President. Further we note that the JSC invited written submissions on the suitability of the nominee from specific identified law bodies and "other institutions with an interest in the work of the JSC", without expanding further on which organisations would qualify under the latter category.
However, we are of the view that COSATU, as the largest trade union federation in the country, has a well-established history of engaging in a broad range of socio-economic and political issues nationally and internationally on behalf of our membership, the broader working class and the public in general. Further, we note that decisions of courts have a profound impact on the public at large, beyond the legal fraternity that has been explicitly solicited for their views on this nomination. Accordingly it would be inappropriate for the JSC to interpret narrowly which organisations would be considered to have an interest in the work of the JSC.
Further, notwithstanding the lateness of this submission and the scheduling of the interview of Justice Mogoeng for 2 September 2011, consideration should be given to both the short timeframes stipulated by the JSC as well as the fact that concerns regarding the nature of some of Justice Mogoeng's judgments have only recently come to light.
1.1 Principles Framing Our Submission
Noting the highly controversial role of the judiciary historically under apartheid in enforcing and consolidating repressive apartheid legislation and security laws, it could be described as neither independent nor impartial, principles that were only made possible with the coming into power of the first democratically elected government in 1994. At this time we inherited a largely untransformed judiciary and legal fraternity and we note that transformation remains an ongoing process.
COSATU has consistently demanded the need for the meaningful transformation of the judiciary, which in our view should include the following:
- A dramatic shift away from a judiciary that is dominated by white males to one that is representative of the country's demographic profile, and ensures opportunities for black legal practitioners who have been denied access in the past.
- Noting the massive gap in representivity of women in the judiciary and legal profession as a whole, programmes to accelerate increased access for women.
- The judiciary as a whole should reflect a working class bias, that is pro-poor and pro-development in its stance, in contrast to the current judiciary that has at its core a pro-business and pro-neoliberal agenda.
- The judiciary must reflect a bias towards women's rights and gender sensitivity, noting the triple oppression that continues to be experienced particularly by black women. Any future appointment must propel forward not only women's representivity but the addressing of these broader objectives.
Against this background we are of the view that unlike independence, judicial accountability receives far too little emphasis. Taking into consideration that the judiciary is a branch of the state, it should be held no less accountable than the legislature or the executive, even when making allowances for different mechanisms to protect independence. Further we note that the Constitutional Court has previously overturned a conviction for contempt of court where this related to the criticism of another court's decision and stated that "vocal public scrutiny constitutes a democratic check on the judiciary".[1]
It is against this background that we are submitting our comments, and wish to stress that the concerns from many quarters as to the suitability of the nominee highlights a broader underlying problem, namely the need to democratise and ensure more inclusivity in the judicial appointments process as well as in respect of other decisions affecting the judiciary.
Here we note the Presidential prerogative under section 174(3) to appoint the Chief Justice after consulting the JSC and leaders of political parties. However, this does not preclude the engagement of civil society especially if the intention is to address the overall objectives of judicial independence AND accountability.
2 CONCERNS BY OTHER ORGANISATIONS REGARDING EXPERIENCE
We note that relatively soon after the announcement of Justice Mogoeng's nomination a number of opposition political parties and organisations publicly raised concerns about his level of experience. At the outset we wish to record that nothing in this submission should be construed as support for those concerns.
Section 174(1) of the Constitution merely requires that a Constitutional Court judge be an "appropriately qualified woman or man who is a fit and proper person" and who is a "South African citizen". Further we note that previous judicial and Chief Justice appointees to the Constitutional Court have had varying backgrounds and levels of experience, some of whom would have had difficulties being appointed to the ordinary High Courts especially prior to 1994. Therefore it would appear that Justice Mogoeng's qualifications and experience meet the minimum requirements for appointment.
While COSATU is not in a position to comment any further on the question of experience, we are aware that experience has been used as a gate keeping factor to resist post-1994 transformation of the judiciary and the legal profession as a whole. Rather we are of the view that any emphasis on experience would be better focused on what it reveals about the character and mindset of a nominee.
Here we believe that it is imperative that any member of the judiciary reflects the mindset and values that would be consistent with her/his role in upholding the values of the Constitution when considering any matter.
3 JUSTICE MOGOENG'S PREVIOUS DECISIONS
COSATU's main concerns in this part relate to the decisions of Justice Mogoeng that reflect a mindset and values that are inconsistent with Constitution and more specifically a lack of sensitivity to a court's role in protecting the rights and interests of vulnerable groups.
3.1 Decisions on Gender-related and Sexual Violence
In summary we note the following decisions by Justice Mogoeng, notably most of which were handed down after the enactment of the current Constitution:
1. S V Moipolai 2005 SACR 580 (B)
In this decision the 10 year prison sentence for rape was reduced by Justice Mogoeng on appeal whereby half was suspended for five years. The basis for this decision appears to relate to the fact that they were previously in a consensual relationship as "common law" husband and wife. Mogoeng differentiated between "this rape" and "the rape of one stranger by another between whom consensual intercourse was almost unthinkable"
The judgment also reflects apparently contradictory statements. For example it states:
"It is correct that the complainant did not at any stage express her opposition to the intercourse ....She neither said no nor did she offer any physical resistance.... How then could her boyfriend ...have known that she was in fact opposed to the intercourse?"
In contrast Justice Mogoeng later states:
"It was indeed highly insensitive of the appellant, firstly, to punch an eight months' pregnant woman, and secondly to punch her so hard that it caused her to fall."
This judgment raises a number of fundamental concerns, namely:
- General insensitivity to gender-based violence as reflected by the reduction of the original sentence, taking into account the lack of rational factors justifying the need to do so.
- Trivialisation of the offence of rape and the understanding of what constitutes consent, regardless of the nature of the current or previous relationship
- Distinct lack of awareness of criminal law on rape, including the offence of marital rape.
- Illogical and contradictory weighing of the factual assessment as to whether there was in fact consent, which seems to suggest that the judge was predisposed towards finding reasons to reduce the sentence.
2. S V Mathibe (Unreported judgement, 1 March 2001)
This case involved the review of a 2 year imprisonment sentence imposed by another court for grievous bodily harm, whereby the accused had tied a woman to his car bumper and dragged her over a distance of about 50 metres.
In reducing the sentence to an effective R2000, Justice Mogoeng disregarded evidence that the woman had suffered abrasions to her stomach, thigh and knees AND that the offender had refused to allow her to seek medical treatment until the next day. His reasoning included that the woman who had "provoked" the assault had not sustained serious injuries. Further, the fact that the offender had pleaded guilty was construed as evidence of remorse.
An appreciation of the facts underlying the decision above can only lead to the conclusion that the judge either did not appreciate the gravity of the offence or was merely grasping at straws to ground a decision allowing for the reduction of the original sentence.
3. S V Modise (Unreported, 19 November 2007)
This case involved an appeal against a conviction and sentence of five years for attempted rape, involving a husband and wife who were undergoing a divorce and had been separated for almost a year at the time of the incident. The conviction was upheld but the sentence was wholly suspended in a concurring judgment by Gura J and Mogoeng.
The fact that the offender had "throttled and pinned her down" illogically was construed by the judges as "minimum force". The judgment further stated that "this case is not comparable to a case where a lady comes across a stranger on the street who suddenly attempts to rape her". They further appeared to find it relevant that the offender must have been "sexually aroused", thereby overwhelming him and probably caused his "somewhat violent behaviour".
As with the previous cases commented on, the facts considered appeared to contradict the eventual conclusion that one would have expected the judges to have made. Again what is reflected is a fundamental lack of appreciation of the seriousness of gender-based violence. Further, the decision disregarded the meaning of consent, and appears to take the problematic view that where two parties know each other and/or were in prior relationship the right to withhold consent is diminished.
4. S v Mathule
This case entailed a joint decision by Hendricks J in which Mogoeng concurred in relation to the appeal against the conviction and life sentence for the rape of a 7 year old girl. While the conviction was upheld the sentence was reduced to 18 years, and the grounds listed as serious and compelling circumstances justifying this departure included:
- Appellant is 31 years of age;
- He is unmarried;
- He is unemployed;
- He is suffering from chronic epilepsy;
- His highest standard of qualification is standard 7;
- He is staying with his unemployed mother
Firstly apart from the general seriousness with which the offence of rape should be treated, this case reflected a serious disregard for the rights and interests of a minor. Further, none of grounds listed above would rationally correspond to a decision that justifies a reduction of the sentence.
Children are generally considered to be a vulnerable group, which necessarily places profound obligations on a court in relation to the protection of their rights and interests. This decision shows no cognisance of that fact.
5. S V Serekwane (2005)
In this case appellant appealed against the conviction and sentence for the attempted rape of a 7 year old girl. In a concurring judgment, Mogoeng held that the evidence was not sufficient to found the conviction of attempted rape. Accordingly it was substituted for a conviction for indecent assault and the sentence reduced from 5 to 3 years.
The basis for the decision related to the medical evidence. Although bruising was found on the minor complainant's vagina, the judges concluded that because she "did not feel pain whatsoever", that this "militates against the Magistrates conclusion that the Appellant's penis caused the injury". Although this conclusion was contradicted by the fact that the complainant testified that the offender had used his hands to hold her around the waist in the course of the attack.
Illogically the reduction of the prison sentence also took into account that the offender was a first time offender, married with children and earned R1800 a month as a soldier. Further the judgment stated that the "injury sustained "is not serious".
This judgment reflects an evolving and consistent thread demonstrating a trivialising of the nature of sexual violence as well as the courts' responsibilities towards the protection of minors.
3.2 Decisions related to Rights to Equality and Sexual Orientation
In Le Roux and Others v Dey, [2011 (3) SA 274 CC], the Constitutional Court considered a claim for defamation and injury to personal dignity. The majority decision essentially found that it was not possible to found an action for damages for injury to feelings simply by calling or depicting another person as gay as the Constitution "protects autonomy of choice in relation to sexual orientation". Mogoeng dissented in this case from the majority without offering any reasons for his decision.
Admittedly it would be difficult to draw hard and fast conclusions from his dissent in this case alone and more specifically if it reflects a mindset that does not respect choices made on the basis of individual sexual orientation. However, the JSC should as a minimum enquire as to Justice Mogoeng's commitment to the Constitutional rights to equality and freedom of unfair discrimination on all grounds, including that of sexual orientation.
Generally we wish to state that it should be treated as an inherent requirement that judge show their full commitment to the protection of Constitutional values and the rights contained therein.
Further noting our earlier comments on the need to ensure judicial accountability there is a need to enquire as to why the Justice Mogoeng did not provide reasons for his decision.
4 MOGOENG'S ROLE AS A STATE PROSECUTOR
Mogoeng's history as a state prosecutor from 1986 to 1990 for the former so-called independent state of Bophuthatswana raises serious concerns regarding his role under apartheid. In many instances this has previously disqualified other candidates from appointment, noting the history of prosecution of politically motivated cases on behalf of what was an illegitimate state.
We believe that the JSC needs to enquire into Mogoeng's history and record and in particularly assess if he was involved in any politically-related criminal cases. Further, there is a need to enquire into his role in prosecuting any death penalty cases. In the latter instance we note that in 1991 he was responsible for defending the Bophuthatswana Government's bid to defend a stay of execution in a death penalty case.[2]
5 CONCLUSION AND RECOMMENDATIONS
On the basis of our concerns we cannot support the appointment of Justice Mogoeng for the position of Chief Justice, which we believe he would hold for the next 10 years if successful. Moreover, while this is not presently for the consideration of the JSC, it is disturbing that even if NOT successful Justice Mogoeng will remain on the bench as an ordinary Constitutional Court judge.
Whereas the reality is that questions as to his fitness and appropriateness to serve as a judge in ANY court, let alone the Constitutional Court, raises serious concerns as to the nature and rigour of the original process that enabled him to ascend to the bench. This highlights the need to ensure a process that will seek democratise the way judicial appointments are made.
Mogoeng proves the correctness of the theory that says "black is not equal to transformation". Ultimately we need a new beginning with a transformed judiciary that is sensitive, accessible and accountable, and which has as its focus the interests of the marginalised, the acceleration of development, justice and socio-economic justice in particular. Mogoeng does not reflect any class bias and we do not believe that he is capable of taking forward the objective of transforming the judiciary.
Based on his remarks, it is evident that he reflects an insensitive, patriarchal and backward mindset that is chauvinistically inclined towards the stereotypical role of women. His appointment would be a slap in the face of millions of black, and African women in particular, who have championed the rights and interests of women, and would constitute a reversal of the struggle for total women emancipation.
Accordingly we are calling on the JSC to recommend against Justice Mogoeng's appointment and to further call on the State President to review and re-open the nomination process in order to identify more suitable candidates.
FOOTNOTES:
[1] S V Mamabolo 2001(3) SA 409 CC.
[2] Ngobenza v Minister of Justice, Bophuthatswana and another.
Issued by COSATU, September 3 2011
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