President Jacob Zuma’s candidate for chief justice is set for a grilling over his support for the death penalty, his lack of experience and alleged homophobia when the Judicial Service Commission holds public hearings into his fitness to hold office on September 3.
In a submission to the JSC, the National Association of Democratic Lawyers (Nadel) questioned Mogoeng Mogoeng’s support of the death penalty in a case heard in the Bophuthatswana High Court 1988.
“It is not merely the death sentence itself, but its use and application during the apartheid years that inform Nadel’s concerns,” the association said.
In a report in City Press on Sunday, Nadel lashed out at Mogoeng’s “active participation” in pushing in 1988 for a man whose original legal team didn’t represent him properly, to be executed.
Mogoeng had appeared as state advocate for the justice minister in the former Bophuthatswana court to oppose an application by the convicted man for a stay of execution.
“A day before he would have been hanged, the man [referred to as Ngobenza in the judgment] asked the court to postpone his execution pending a new appeal against his conviction and a clemency application,” the City Press said.
“Ngobenza believed his case wasn’t properly presented by his lawyers.”
The judge president of Bophuthatswana, Theal Stewart, eventually granted the stay of execution after it became clear that there was a chance that the man could successfully appeal against his case and receive a reprieve.
Stewart disagreed with Mogoeng’s insistence that “under the circumstances” Ngobenza’s execution should go ahead.
Nadel spokesperson Khanya Jele told City Press that “massive unanswered questions” remained about Mogoeng’s career as state advocate between 1986 and 1990.
The Cape Bar Council and the Johannesburg Bar Council have also shot down Mogoeng’s nomination.
Moseneke preferred
In its submission to the JSC, the Cape Bar Council said it was “at a loss to understand” how Mogoeng could be a suitable candidate to succeed retired chief justice Sandile Ngcobo.
“The [Cape Bar] is … at a loss to understand how a 51-year-old judge with less than two years experience on the Constitutional Court and less than a handful of truly significant judgments could be preferred as chief justice to the 63-year-old Deputy Chief Justice [Dikgang Moseneke],” the bar wrote in its submission quoted by the Sunday Times.
Moseneke had served on the Constitutional Court since 2002, held the office of Deputy Chief Justice since mid-2005 and authored a string of weighty judgments during his nine years on the court.
The Johannesburg Bar Council meanwhile, delivered a “scathing rebuke” of Mogoeng’s nomination and questioned his commitment to the Bill of Rights and judicial ethics.
A report on News24 said the council had criticised Mogoeng for not giving reasons why he differed with his colleagues in the Constitutional Court who had ruled that a person could not be defamed by being labelled a homosexual.
“His dissent indicates that he would, in fact, have found that it could be defamatory simply to refer to a person as being homosexual,” the submission, which was obtained by News24, said.
“If this is so, it would indicate a prejudicial attitude to members of the gay community, in conflict with the established jurisprudence of the Constitutional Court on this point, as well as the values in the Constitution.”
Last week a number of civil rights groups said they planned to object to Mogoeng’s nomination based on previous judgments relating to violence against women.
The public interest organisation, Section 27, planned to lodge an objection on behalf of the Treatment Action Campaign, the Lesbian and Gay Equality Project and the Sonke Gender Justice Network.
The Tshwaranang Legal Advocacy Centre and the Women’s Legal Centre also planned to object.
‘Minimum force’
The M&G reported on Friday that in an appeal, heard in the Bophuthatswana High Court in Mafikeng in 2007, Mogoeng suspended a convicted rapist’s two-year jail sentence on the grounds that he had been “aroused” by his wife and had used “minimum force”.
Mogoeng accepted that the appellant had returned home one night after moving into his parents’ house. He had “throttled his wife” and pinned her to the bed to have sexual intercourse with her.
His wife fought back and managed to escape to safety in a neighbour’s house.
Mogoeng said he was satisfied that “the guilt of the appellant was proved beyond a reasonable doubt”. However, he also said that “no real harm or injuries resulted from the throttling … the case is not comparable to a case where a lady comes across a stranger on the street who suddenly attempts to rape her. An effective term of imprisonment is, therefore, inappropriate in this case.”
The judgment reads: “This is a man whose wife joined him in bed, clad in panties and a nightdress. When life was still normal between them, they would ordinarily have made love. “The appellant must, therefore, have been sexually aroused when his wife entered the blankets. The desire to make love to his wife must have overwhelmed him, hence his somewhat violent behaviour. He, however, neither smacked, punched nor kicked her. Minimum force, so to speak, was resorted to in order to subdue the complainant’s resistance.”
Last week, City Press reported on a 2001 judgment relating to a man who tied a woman to the back of his car and dragged her along a gravel road for 50m and only took her to hospital the next day. He was sentenced to two years for assault.
Mogoeng found that the complainant had “provoked” the accused and that she had not suffered serious injuries. Ruling that the sentence was “too severe”, he offered the option of a R4 000 fine.
Zuma has to consult with the JSC and opposition political parties before he can appoint Mogoeng. – Sapa and Staff reporter