A few questions for Mogoeng Mogoeng

By Stephen Grootes 2 September 2011

Amid all the chaos in Joburg this week, there’s a small event taking place in Cape Town this weekend that matters. In fact, it matters so much it could knock the Malema hearings into second place in terms of importance. This week could well be remembered for the public Judicial Service Commission hearing of President Jacob Zuma’s Chief Justice nominee, Mogoeng Mogoeng. STEPHEN GROOTES is not a member of the JSC, thankfully, but he has a few questions anyway.

Lawyers like long words. But between all the Latin of the various bar councils, the complicated maneuvering of Advocates for Transformation and the sheer frustration of organisations like the Treatment Action Campaign and Freedom Under law, it all boils down to two major questions.

Is Mogoeng a sexist homophobe?, and…

Is he strong enough to stand up to government in general, and Zuma in particular?

Let’s look at the first question. So far, no one has produced a smoking gun, or video evidence, that Mogoeng is not someone who really believes in the constitutional principles that everyone is equal before the law, regardless of their sex or preference. But he has to answer why he didn’t provide a proper dissenting judgment in Le Roux vs Dey, in which school children manipulated a picture of their teacher into an image of gay sex. The question really is, did you now write a judgment because you believe that gay people don’t have the same rights as everyone else, or was there another reason? And if there is, what was it?

Then he has to answer the question posed by the TAC, Section 27 et al about rape. They’ve gone through his rulings as a judge in Mafikeng, and discovered that he seems to lessen the sentences imposed on men who rape women, and increased those for men who rape men. This looks bad for him. He will have to tread very carefully indeed. How do you explain lowering a sentence for a man convicted of dragging his girlfriend behind his car, or for writing in a ruling, that it was completely natural for a man to become aroused as his wife, with whom he had not enjoyed conjugal rights for some time, was wearing a nightie while in bed.

Both of these issues really boil down to religion. He’s a pastor, a fact that has not been hidden. So the central question is how religious is he? (Not that that’s really the issue.) The issue is whether he would be able to rule in a secular manner or, to put it this way, how much would the religion influence his decisions. It’s the same as asking a Muslim judge to rule on a case involving Zapiro and the Prophet. The Constitution says the judge’s religion mustn’t come into his rulings. We have a right to expect Mogoeng to be exactly the same.

He should make that promise to us. And he shouldn’t quote the Bible in a judgment again. Not that’s necessarily wrong, it’s just because it will look bad for him.

Now, to the second, and possibly more important question.

Much of the commentary has skipped around the central question of whether Mogoeng has been picked by Zuma because he’s the weakest of the judges on offer. He was a surprise appointment to the Constitutional Court in the first place back in 2009. The reasoning, usually unspoken (we seem to remember you being rather vocal Stephen – Ed), goes that as he’s young and relatively inexperienced, Zuma must have picked him because he will rule in government’s favour. Isn’t it a nice irony that the Protection of Information Bill is in the news this week. He’s one of the judges who will matter when it comes to laws like these. So he should be asked for his view on the bill. He probably won’t give an answer, because he may actually sit on a case involving it in the future. But you’d get the picture of would he rule in favour of free speech and open government, or for the ANC and closed government.

Mogoeng also needs to answer questions about culture and his definition of ubuntu. He referred to these during his minority judgment in the McBride case, in which he said The Citizen’s treatment of the former Ekhuruleni Metro Police chief went against the culture of ubuntu. As a result, he found against the paper. Does this mean that he believes Zapiro does not have the right to draw that shower head? If so, why? And surely, if he does believe that, then we are all in deep trouble.

If I were in Mogoeng shoes, there is a strategy that could work. First off, ask to make a personal statement. Apologise for not writing that dissenting judgment in Le Roux vs Dey. Explain, carefully what you really believe about homosexuality, and why. And make it good. Then say you are expecting questions, and you welcome the opportunity to clear the air. Explain that while it is Zuma that has nominated you, you have absolutely no plans to do anybody’s bidding. And that the Constitution is your only guide.

When Mogoeng was nominated, there was so much hoopla around another controversial candidate for the Constitutional Court, that his record wasn’t properly examined. With the benefit of hindsight, that was probably a mistake by many of us. Including myself. Because with his record of rulings in Mafikeng, you can’t help but wonder how he got on the court in the first place. It’s the nightmare of people appointed to Cabinet. Suddenly their entire record comes under scrutiny and you can go from brand new job to Mampara of the Week in moments. Mogoeng will probably survive Saturday. But he’s going to have to be clever about it. He’s a judge, after all. DM

Grootes is an EWN reporter.


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