Friday, September 2, 2011

South African Constitutional Court: Justice Mogoeng's Nomination and Opposition

[UPDATE: JSC supported Mogoeng; incisive analysis of interview from Pierre deVos here.]


On Saturday, the South African Judicial Service Commission (JSC) will interview Mogoeng Mogoeng, President Zuma's choice for Chief Justice of the Constitutional Court.

ZAConCourt While the President has broad discretion under the South African Constitution as we've previously discussed, the choice of Mogoeng has provoked a groundswell of opposition. 

For example, the important and well-respected organization Section 27, named after Section 27 of the South African Constitution providing for socio-economic rights, has filed a  Submission on behalf of itself and several other organizations, specifically objecting to Mogoeng's judicial judgments in the areas of sexual orientation and gender-based violence cases.  The submission requests specific queries from the JSC on the matter of sexual orientation, as well as a statement of his committment to equality on the basis of sexual orientation as explicitly stated in the South Africa Constitution.  The submission notes Mogoeng dissented in a sexual orientation case without providing reasons as constitutional practice requires. 

As for the gender violence issue, the problem is not Mogoeng's silence, but specific troubling statements that the submission outlines.  The Section 27 submission concludes:

We have no confidence in his ability either to dispense justice in accordance with the values of the Constitution or in his ability to address the complex gender questions that arise in the judiciary and in the legal profession appropriately.  The judgments to which we have referred evidence a patriarchal attitude to women.  We have no reason to believe that Justice Mogoeng will not exhibit similar patriarchy in relation to gender transformation in the judiciary, the legal profession and indeed society as a whole.

The Women's Legal Centre, writing on behalf of itself and other organizations and persons, also focuses on the matter of gender-based violence in its Submission, highlighting judgments and statements by Mogoeng, as well as mentioning the matter of sexual orientation.   

Both Submissions include a discussion of one of Mogoeng's most controversial judgments, rendered before he was a member of the Constitutional Court, eliminating a sentence of jail-time in favor of a fine for a man convicted on assault with the intent of doing grievous bodily harm to his "girlfriend."   In this previously unreported judgment also discussed by Professor Pierre deVos, the defendant had "‘tied the complainant, his girlfriend, with a wire to the rear bumper of a vehicle. He then drove that vehicle on a gravel road at a fairly high speed over a distance of about 50 metres."   Mogoeng found the sentence of two years imprisonment too harsh in part because the man "was provoked by the complainant."  In other cases, Mogoeng reduced or suspended sentences for rape because the parties knew each other. 

Cases described by the Southern African Litigation Centre, have prompted the characterization of "shocking" regarding other of Mogoeng's judgments involving sexual assault and violence against women and children.  In one, Mogoeng reduces to the miminum the sentence of a man convicted of raping a seven year old girl because her injuries were not "serious." 

Several law professors from the United States who have scholarly connections to South Africa, including myself, have signed a letter authored by Dean Penelope Andrews, herself once a candidate for the Constitutional Court, asking the JSC to seriously consider Mogoeng's role as Chief Justice on the Constitutional Court, an institution not only important to South Africa's constitutional democracy and transformation, but also internationally.  

The Saturday interview and deliberation places the Judicial Service Commission center stage, and is being "described as a test of its character and politics, and, therefore, of its value" in the South African Constitutional democracy.  There will be live radio coverage starting at 4.00 am EST available here. We also expect that Professor Pierre deVos of Constitutionally Speaking will have live blogging and a full report after the hearing.

[image: Logo of the South African Constitutional Court via]

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Readers may find interesting an opinion-piece—-written by Fiona Snyckers, a novelist and feminist in South Africa—-at a blog journal maintained by the Mail & Guardian, a widely-distributed newspaper in South Africa.

The author shares her own views of the debate (and criticisms) regarding the nomination of Justice Mogoeng for Chief Justice. Her article can be found at the following webpage:

In Fiona's article, I did not find any reaction from her to the concerns over whether Justice Mogoeng would ensure, as Chief Justice, the robust development of the Constitutional Court’s progressive jurisprudence—a concern apparently conveyed to the Judicial Service Commission in the aforementioned letter from Dean Andrews, Professor Robson and other various law professors.

Posted by: Sherman Jones, Jr. | Sep 3, 2011 4:19:08 PM

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