South Africa worried about new chief justice


South African President Jacob Zuma congratulates his new Chief Justice Mogoeng Mogoeng in Pretoria on September 8, 2011.


Sizwe Ndingane

JOHANNESBURG, South Africa — On the Sunday after he was appointed South Africa’s new chief justice, Judge Mogoeng Mogoeng stepped up to the pulpit at the Winners’ Chapel International, the evangelical church where he is a lay pastor, to give thanks.

During his nomination hearing, Mogoeng had said God wanted him appointed head of the country’s highest court. The judge had fasted three times a week for the Almighty’s favor.

"It was humility that put me where I am today,” Mogoeng told the congregation, according to the Sowetan newspaper. “I thank God for opening this door for me. I am now the third most powerful man in South Africa.”

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Mogoeng also had the country’s most powerful man, President Jacob Zuma, to thank for his good fortune. The president ignored a torrent of opposition, including from civil-rights groups, legal experts and female Nobel Peace Prize laureates, to appoint Mogoeng chief justice of the Constitutional Court last week. Lobby groups had argued that Mogoeng is inexperienced, lenient on rape and a member of a church that condemns homosexuality.

But the outcry failed to dissuade Zuma. Some South Africans now fear that their country’s post-apartheid constitution — considered one of the most progressive in the world for its protection of people of all ethnicities, sexual orientations and religious beliefs — may be eroded.

Mogoeng’s appointment has also stirred up fears that Zuma, who has faced the courts several times in the past, including on corruption and rape charges, may be trying to influence the South African justice system.

Lobby groups, in their efforts to prevent Mogoeng’s appointment, dug up numerous judgments in which he appears to minimize the severity of rape of women and even children. South Africa has one of the highest rates of rape in the world, with a rape committed every 17 seconds, according to an Interpol study.

In 2005, Judge Mogoeng concurred with a judgment reducing the sentence of a man who had attempted to rape a seven-year-old girl from five years to three years, noting without further explanation that the man is a soldier who earns only R1,800 ($245) a month, and “the injury she sustained was not serious.”

In 2001, Mogoeng reduced the sentence of a man who tied his girlfriend to the rear bumper of his car and then drove “on a gravel road at a fairly high speed” for about 55 yards.

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Mogoeng said a 2-year jail sentence was “too harsh by any standards,” and replaced it with a fine of R4,000 ($550) because the man was “provoked by the complainant” and she “did not sustain serious injuries,” according to the judgment.

In a 2007 judgment with which Mogoeng concurred, a man accused of attempting to rape his wife and throttling her had his sentence of five years suspended because he must have been “sexually aroused” by his wife, and had used “minimum force.”

"The desire to make love to his wife must have overwhelmed him, hence his somewhat violent behavior," the judgment said.

Under questioning at his nomination hearing by South Africa’s Judicial Service Commission, Mogoeng denied he was insensitive to rape, and cited cases where he had handed out stiff sentences to rapists and in some cases increased sentences.

He also said he would uphold the constitution, which respects gay rights, noting that South Africa’s constitution also respects his religious beliefs.

“In the exercise of this right, I have fully embraced the Christian faith,” Mogoeng said in defence of his membership in the Winners’ Chapel, a Nigeria-based church “where Winning in life is taught as a lifestyle,” according to its website.

Zuma described Mogoeng’s interview process as “no doubt the longest, most transparent and most robust ever undertaken by a candidate of chief justice in the history of this young democracy.”

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But these assurances have failed to convince some of Mogoeng’s prominent critics.

“As a woman, a black woman, I am very afraid that the alarming prevalence of gender-based violence and sexual abuse of women and children will not be curbed under his leadership of the Constitutional Court,” said Mamphela Ramphele, a leading South African academic, to Johannesburg’s City Press.

The Nobel Women's Initiative, which includes peace laureates Shirin Ebadi of Iran, Mairead Maguire of Ireland and Jody Williams of the United States, also pointed to Mogoeng’s judgments in rape cases in speaking out against his appointment.

"Many of his rulings have undermined the severity of the crime of rape and its consequences for victims and invoke dangerous myths about rape that often blame the victims themselves and excuse perpetrators of egregious crimes," they said in a statement.

Susan Booysen, a politics professor at Johannesburg’s University of Witwatersrand, warned of the potential of having a “sycophantic chief justice.”

When Zuma first announced his choice of Mogoeng for chief justice, it was on the heels of a failed attempt to extend by five years the term of Judge Sandile Ngcobo, the outgoing chief justice. Ngcobo initially accepted but then turned down the offer, and the Constitutional Court later ruled that the law Zuma had used to extend his tenure was unconstitutional.

Zuma then put forward Mogoeng, his only nominee for the job despite criticisms he had overlooked highly experienced judges, such as the deputy chief justice Dikgang Moseneke. Moseneke is seen as being fiercely independent, highly intelligent and is particularly respected for his written judgments. Some suspect Moseneke was not considered by Zuma because he was a leader of the opposition Pan Africanist Congress.

In contrast, Mogoeng is the most junior judge on the Constitutional Court and the most conservative. He has not had any groundbreaking judgments and in some instances has not bothered to explain dissenting opinions or to write judgments while on the Constitutional Court.

“It is not only surprising, but shocking that despite the massive public outcry, the president has simply ignored the objections and appointed this controversial candidate," said Inkatha Freedom Party spokesperson Koos van der Merwe.

Van der Merwe, who is also a Judicial Service Commission member, added: “It shows an utter disrespect for public opinion, and our democracy as a whole.”