Haters and sycophants split over Mogoeng at hearing

By Rebecca Davis 5 September 2011

This weekend Cape Town's lavish International Convention Centre played host to two quite different types of events. The public interview of Mogoeng Mogoeng succeeded in attracting only a fraction of the crowd intent on expanding their scatter-cushion collection at the Homemaker's Expo next door. REBECCA DAVIS describes what went down.

For the morning session of the Judicial Service Commission’s sitting there was standing-room only, but by late Saturday the audience had slimmed down considerably. They were a mixed bag. Everyone’s favourite law professor, Pierre de Vos, was there, as was Patricia de Lille, later tweeting that she had come away with the conclusion that Mogoeng was “an apologist for rapists”.

Many others were activists from gender and gay rights-focused NGOs, with the Treatment Action Campaign bussing in a large group to protest outside the building. The public had been warned in advance that no statements could be made and no placards carried inside the room, but activist groups had circulated invitations to the hearing on email and social networks, encouraging their supporters to attend and wear slogan T-shirts. Few were visible, although one woman sat draped in a rainbow flag, a silent notification to Mogoeng Mogoeng that he was under hostile observation from the gay community. Someone shouted “Down with gender violence!” shortly before the hearing began, but that was the last peep heard out of the well-behaved audience, many of whom were live-tweeting the event.

South Africa’s Twitter users tweeted the hell out of the interview, christening the man who would be Chief Justice “MoMo” and monitoring with amusement a huffy spat playing out on the social network between Helen Zille and Sunday Times columnist Ndumiso Ngcobo. (Ngcobo suggested that Zille only opposed Mogoeng’s nomination because she couldn’t pronounce his surname. Zille experienced a sense-of-humour failure about this, telling him she was “shocked” and “disappointed”. An argy-bargy exchange followed, culminating in the rather extraordinary final retort from Zille, who seemed to be briefly channelling a 12-year-old: “Whateva. Bored now.”)

Within the hearing room, Mogoeng’s presence also served as a catalyst for discord. If nothing else, the weekend was an eye-opener regarding the divisions within the Judicial Services Commission. Its members struggled to agree on pretty much anything, including the question of whether the proceedings should be carried out publicly in the first place. As has been widely reported, the tension between Mogoeng and Deputy Chief Justice Dikgang Moseneke was at points unnervingly evident. Moseneke was in a tight spot: publicly interviewing the man who might be his boss, and needing to be seen to do a proper job of it. This notion – the appearance of thoroughness – was clearly on his mind: he concluded the first day’s proceedings by saying that “nobody can say we haven’t done our bit”.

Moseneke, whose popularity grows daily in a manner which is directly commensurate with the expanding fears about Mogoeng, didn’t go easy. He testily drew attention to the fact that Mogoeng’s initial statement was simply a public reading of his previously-submitted report, and at various points implored him to hurry up. The moment when he asked Mogoeng why he believed he was the president’s choice had a poignant subtext – why not me? – but there were few occasions on which he betrayed any bitterness. Concluding the Saturday morning session with a rhetorical inquiry into whether Mogoeng had the requisite intellectual depth was a masterstroke. Raising the question automatically means you have doubts as to the answer, and the timing ensured that it was the major thing on the audience’s mind as they trooped out for lunch.

The hearing at times had the flavour of a criminal trial rather than a job interview. Mogoeng had a few odd turns of phrase, referring to “the gay and lesbian people” and repeatedly referencing something called “homopheabia”. This might seem like a churlish point to make about someone for whom English is not a first language, but it is relevant because the jurist has been criticised for the language of his judgments as much as their rulings. It was not difficult to imagine Mogoeng on the priest’s pulpit on a Sunday: he had a preacherman’s style of oratory, frequently dropping his voice to a kind of intense whisper when making a particularly passionate point. And boy, was he defensive –  on a number of occasions setting up totally artificial straw men in order to tear them down. “I am not a terrible person,” he insisted at one point. “My church is not the Ku Klux Klan”. What a relief. He waxed lyrical about traditional courts, evoking a kind of rural idyll where everyone walks to the courts, and he suggested South Africa look to Botswana and Arizona’s legal systems for inspiration. Botswana, where public flogging still happens; and Arizona, where there are currently 133 people on death row.

The panellists varied wildly in the tone and content of their questioning. Justice Minister Jeff Radebe used the platform to express his sympathy for Mogoeng, reading out his achievements and inviting him to tell the audience about his passion for extending legal services. Mogoeng was repeatedly thanked by the ANC panellists for his “dignified silence” and fortitude in the face of the nasty media’s horrible words about him. Possibly unfortunately, given the racial dimension to some of the opposition to Mogoeng, the harshest panellists were the whiteys. Engela Schlemmer expressed her “unease” with his lack of experience. CP Fourie grilled him about his endearingly quirky little habit of defending judgments by referencing Bible verses. And Koos van der Merwe went all out, describing him as “so arrogant” on Saturday and on Sunday following up with an invitation to Mogoeng to kindly remove himself from consideration.

It’s hard to know whether Mogoeng will have won any new fans from the public through his performance, spirited though it was. He took every possible opportunity to lay it on thick about his hatred for rapists, tolerance of the gays and love for women – at one point actually saying “I am a man who loves women”, giving him at least one thing in common with JZ – but when the agenda for the hearing was read out, it was a pretty disturbing indictment in itself. “We have gender sensitivity, we have homophobia, we have the issue of religious faith,” Moseneke summed up. A rather chilling list of concerns about the man who may be given the most important legal post in the country.

Yet the concerns of activists are unlikely to count for very much now. With the JSC having voted 16 to seven in favour of Mogoeng, he takes a big step forward on the road to assuming the mantle of Chief Justice. But is anyone really surprised? After all, it’s what God wants. DM

Erratum: In an earlier version of this article, we claimed that Kate O’Regan was present at the hearing, taking notes. She was in fact not. Our apologies for this error and any inconvenience it may have caused.


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