For a Chief Justice We Need a Great Judge
September 1, 2011
Although SALC doesn’t usually work in the South African courts, we do support South African cases where they have the potential to impact human rights and the rule of law beyond South Africa’s borders. More importantly we follow South African legal developments because while we are conscious that South Africa’s size and power mean comparison in the region and on the continent sometimes inspires resentment, it is a fact that much within the South African legal system — like it’s Constitution and Constitutional Court — provide a model worth emulating. And so we have followed South African President Jacob Zuma’s nomination of Justice Mogoeng as South Africa’s next Chief Justice with great concern. Below is a piece that I wrote, published in edited form in Business Day last week, which outlines some of the concerns with his nomination. I want to take the opportunity here to recognise, after having received several corrections, that I wrongly suggested that Justice O’Regan had sat on a judicial bench before which her husband appeared. She never did.
Also posted below is a product of SALC research — documentation of several cases other than those which appeared in the submission given by Section 27, Sonke and the Equality Project — supportive of concerns that Justice M0goeng’s commitment to equality and regard for those most vulnerable in our society is not what it should be of a chief justice.
In the furore that has greeted the announcement that Justice Mogoeng Mogoeng has been nominated to be the next Chief Justice, there is much that is unfair.
For instance, it is suggested that he is not fit, having acted improperly in not recusing himself in cases in which his wife appeared as prosecuting counsel before him. Yet there is ample precedent, before the Constitutional Court even, of sons appearing before fathers, husbands before wives, without this having triggered any charge of impropriety. And no one, having read Mogoeng’s judgments in which his wife appeared before him, could conceive of any impression of favour.
Then there are the charges that he is too youthful, too inexperienced to assume the mantle of chief justice. One could point to Chief Justice John Roberts of the United States to illustrate the point that democracies around the world have made similar appointments without obviously disastrous consequences for the judciary. But one needn’t look outside our own recent judicial history: Judge Arthur Chaskalson was appointed to the position of President of the Constitutional Court with no judicial experience to speak of; Judge Kate O’Regan was appointed to the Constitutional Court while still in her thirties. Both have been leading lights on the bench.
Others have opined that Justice Mogoeng’s reputation for failing to ask questions of counsel appearing before the Constitutional Court raises questions about his suitability. But the judge forms part of a collective court in which various judges play different roles. Amid the combative, interrogative characters of some of his peers, he may understand his role as one of quiet reflection.
By all accounts Judge Mogoeng is a studious, apparently unassuming man. It must rankle to watch his honour and integrity be impeached when judicial etiquette permits no entry to him to the cut and thrust of public debate — particularly when unfair allegations are made. But there are two core issues — the first involving some degree of supposition, the other entirely on the record — that underline that Mogoeng’s fitness for the country’s top judicial office must nonetheless be questioned.
Far from depleting our judiciary, the controversy around the appointment of chief justice may in fact show how fine a judiciary we have. It also illustrates that you can’t have strong institutions of government without those institutions being peopled by persons of principle.
Justice Ngcobo honourably withdrew his candidacy rather than see his occupation of the top post besmirched by any suggestion of irregularity. Credible reports suggest President Zuma then offered the post to several other prominent judges but they declined, believing that the post, although not Judge Moseneke’s by rights, was his by due. And now Judge Moseneke, seemingly to quell further controversy and uncertainty, has indicated that he would not be available for elevation to the post of chief justice. In every instance these judicial officers have appeared to place their personal ambitions behind their roles as custodians of our judicial system.
The same cannot be said of Judge Mogoeng and we must wonder how he squares his own conduct with that of his judicial peers. The way is now open for him however to indicate that he is not available and, with Moseneke indicating likewise, for Zuma to again approach the more senior, more qualified jurists who demurred, believing the post should go to Moseneke.
The behind the scenes negotiations between the executive and members of the judiciary is not a matter of public record. What is clearly documented is Mogoeng’s failure to offer reasons for his dissent from the rest of the court in the case of Le Roux and others v Dey and accordingly his repudiation of the constitutional ethos.
In a seminal piece of academic writing in the early nineties, Etienne Mureinik set out a vision of the Constitution as a bridge, leading from a culture of authority, characterising our past, to a culture of justification, “in which every exercise of power is expected to be justified”.
This culture of justification has become emblematic of our Constitutional Court’s jurisprudence — of what it requires in the exercise of public power from the executive and legislature but also what it requires in the exercise of its own public power.
In the beginning, the court’s judgements were often unanimous — members of the court likely believing that in issuing formative decisions in a newly democratic country it needed to demonstrate unity. Its judgments were sometimes criticised for being unnecessarily long but this was perfectly in keeping with an inclination to err on the side of over-justification rather than under-. As the court and SA’s democracy matured, a greater number of dissenting opinions were issued. But always these judgments were substantiated with the same rigour and detail — often more — than the majority’s judgements.
It is in this context that Mogoeng’s unprecedented failure to deliver reasons for his dissent must be placed. And his dissent involved no trivial matter. He dissents from this ruling of the court:
“It is not, and should not 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.”
Still, not providing reasons may be the lesser evil because it is hard to see how one might dissent from this conclusion unless you were prepared to argue outside the constitution — and that is not an option permitted any judge, certainly not of the Constitutional Court.
As it is, we are left to believe that either Mogoeng does not subscribe to the ethos underlying our constitution — a culture of justification — or to certain fundamental commitments that lie at the heart of our Constitution. Neither conclusion will do of a new chief justice.
Nicole Fritz is the director of the Southern Africa Litigation Centre
SALC Research: Additional Cases Heard by Judge Mogoeng Raising Concern Regarding His Approach to Gender-Based Violence
S v Mathule (CA 243/03)  ZANWHC 6 (19 March 2004)
This case involved an appeal to the Full Bench of the High Court, presided over by Hendriks J, Landman J and Mogoeng JP. The case concerns an appeal against a conviction of rape of a 7 year old girl and the life sentence imposed.
The conviction was upheld. However, the sentence was reduced from life imprisonment, the minimum sentence imposed by law, to 18 years. While rape is a serious offence, the rape of a young child is a particularly egregious act. Nowhere in the judgment did the court appreciate the serious nature of the offence, or reflect on the prevalence of child rape. Hendricks J, writing for the court, in which Mogoeng JP concurred, found that substantial and compelling circumstances existed to justify a departure from the sentence imposed by the court a quo.
The Supreme Court of Appeal has found that the prescribed sentence is life imprisonment in cases of rape of girls under the age of 16 unless “weighty justification” exists justifying a departure. In Mathule the following grounds were listed as serious and compelling circumstances justifying departure from the imposition of life imprisonment –
– Apellant is 31 years of age;
– He is unmarried;
– He is unemployed;
– He is suffering from chronic epilepsy;
– His highest qualification is standard 7;
– He is staying with his unemployed mother.
Yet no explanation was provided for why these factors constitute “substantial and compelling circumstances”. In the main, these factors, apart from the appellant’s illness, do not obviously call for leniency on the part of the criminal justice system. At best, an impression of arbitrariness is created: at worst, that child rape is not among the most egregious crimes in our country deserving the law’s full effect.
S v Sebaeng (CA 16/2007)  ZANWHC 25 (22 June 2007)
This case concerned an appeal against conviction of rape of a 14 year old girl. The appeal was dismissed. Yet certain observations by Justice Mogoeng give rise to apprehension as to his ability to comprehend the full and devastating impact of sexual violence. In his evaluation of the evidence, he pointed to certain “shortcomings” in the victim’s evidence:
“She claims that the sexual intercourse was very painful but there was clearly nothing about her to suggest that she was in any pain when she arrived home and even during her stay there at her grandmother’s home … When she arrived at her grandmother’s home, the only strange things observed and spoken about by those who saw her were the Simba chips, the R30.00 and the 9 o’clock appointment with the Appellant.”
Justice Mogoeng fails to acknowledge that victims react to rape in different ways. More disturbingly, he appears to suggest that rape might be perpetrated with solicitous regard:
“One can safely assume that [the accused] must have been mindful of her tender age and thus so careful as not to injure her private parts, except accidentally, when he penetrated her. That would explain why the child was neither sad nor crying when she returned from the shop notwithstanding the rape. In addition to the tender approach that would explain the absence of serious injuries and the absence of serious bleeding, he bought her silence and cooperation with Simba chips and the R30.00.”
S v Serekwane (175/05)  ZANWHC 52 (1 August 2005)
Mogoeng JP, concurring in judgment concerning an appeal of conviction and sentence for the attempted rape of a 7 year old girl, found that the evidence wasn’t sufficient to justify the conviction of attempted rape and instead substituted the conviction with that of indecent assault and reduced the sentence from 5 years to 3.
This case also evinces a disquieting misunderstanding of the responses to rape and the consequences thereof.
The case turned on the evaluation of the medical evidence. The doctor found bruising in the entrance of the victim’s vagina and this was indicative of “something coming into contact with [the victim’s] genitals” Because the victim’s dress was covering her head she was unable to confirm whether the accused used his finger or penis to abuse her. The court however found that because the victim “did not feel pain whatsoever … at the time of being touched” that this “militates against the Magistrates conclusion that the Appellant’s penis caused the injury”. Yet the complainant testified to the accused using his hands to hold her around the waste during the course of the attack.
The conviction of attempted rape was set aside and substituted with a conviction of indecent assault. In reducing the sentence to three years the following were considered relevant –
– The accused was 30 years old and a first time offender
– He is married with two children
– The accused is a soldier who earns R1800.00 per month.
The relevance of these factors was not explained.
In relation to the harm suffered the court found that
“The complainant is seven years old, the injury she sustained is not serious. She sustained a bruise on her vestibule. Although there was no direct evidence led, she must have suffered some psychological trauma, as a result of this incident.” (emphasis added)
It is hard to see how an injury to a seven year old which results from sexual abuse, perpetrated by a “friend of the [victim’s] father”, can ever be classified as “not serious”.
S v Maluleka (CA 20/2008)  ZANWHC 23 (4 August 2008)
This case involved an appeal against a sentence of life imprisonment imposed on a man for murdering his wife. The judgment written by Landman J, in which Mogoeng JP concurred, upheld the appeal and reduced the sentence to 18 years on the basis that “substantial and compelling circumstances” had been shown. The circumstances in which the murder took place, and which were taken into account by the appeal court, include:
– The accused murdered his wife in front of two of his children, aged 9 and 13;
– He asked the children if he should kill his wife;
– The murder took place in the course of a domestic quarrel in which the wife was accused of spending too much money;
– The accused expressed remorse;
– The accused had no previous convictions;
– The accused had four young children;
– The accused handed himself over the police;
– The accused believed, “albeit unjustifiably”, that his wife was having an affair.
Again, no justification was provided as to why these factors might be classified as “substantial and compelling”, meriting reduction in sentence. Several of the factors cited appear particularly aggravating, not least that he sought to involve his children in the killing and that he required them to bear witness to their mother’s death.
 Rammoko v Director of Public Prosecutions 2003 (1) SACR 200 SCA