President Jacob Zuma’s supporters and advisers are not amused by ongoing questions about his choice of chief justice. Our letters page this week carries an angry response from Mac Maharaj, the presidential spokesperson, suggesting that our criticism of Mogoeng Mogoeng’s conservative and traditionalist jurisprudence was a sign of blindness to the need to bring African values more fully into the ambit of our developing law.
And the Cabinet on Thursday insisted “that the criteria and process outlined by the Constitution are being followed meticulously. Cabinet calls on all parties to respect the supremacy of the Constitution.”
Actually, it is a bit of respect for the Constitution that we would have liked to see. We would have liked to see it from the Judicial Service Commission (JSC) collectively, in the form of a decision to give full expression to the constitutional meaning of “consultation” by rigorously interviewing more than one candidate for the job.
We would have liked to see it from Dumisa Ntsebeza, one of the most influential members of the JSC and its spokesperson, who, in a letter to Advocates for Transformation, called on the group’s members to support Mogoeng blindly because he was the president’s choice and because black lawyers must not criticise black judges chosen by black presidents, even if all the other contenders for the job were black.
Ntsebeza apparently does not believe black South Africans should exercise their basic democratic right to scrutinise and contend with their elected leaders, nor does he understand the job that the Constitution lays out for JSC members. He ought to resign from the commission.
But most of all, we would like to see respect for the Constitution from Zuma himself.
As our reporting this week confirms, Mogoeng clearly has no such respects.
We already knew from his dissenting judgment in the Robert McBride v The Citizen defamation case that he did not value free speech or fully understand the functioning of the limitation clause in the Bill of Rights. From his mysterious dissent — giving no reasons for it — in Le Roux v Dey, we strongly suspected him of homophobia. And we knew he had ethical issues, having failed to recuse himself in at least one case where his wife was the prosecutor.
Then his judgment reducing the sentence of man convicted of dragging his girlfriend behind his car and giving him the option of a R4 000 fine instead of jail time surfaced. The woman had “provoked” her assailant, Mogoeng observed.
We now report on two cases where the man destined to be chief justice dramatically reduced sentences for two men convicted of marital rape in appalling circumstances, offering in mitigation the presumed “arousal” of one of the perpetrators, and a pre-existing relationship in the case of the other.
Our assessment is simple. Mogoeng is prepared to condone from the Bench brutal gender-based violence and sexual assault. His views are not just conservative, they are wrong, and they ought to debar him from any judicial office at all, let alone the highest.
President Jacob Zuma has nominated Constitutional Court judge Mogoeng Mogoeng as the new Chief Justice. For more news on the controversy surrounding the appointment click here.
And the blunders go on
You don’t have to be a fan of Nato’s Libyan campaign to celebrate the fall of an odious ruler like Muammar Gaddafi.
The circumstances of his going are full of messy ambiguity — a popular revolt fuelled by genuinely revolutionary anger but helped on its way by laser-guided bombs and special forces advisers; a victory over dictatorship no sooner won than the talk turned to oil concessions. Both the immediate and long-term future are complicated and fraught with risk.
But there is nothing ambiguous about the fact that Libya is better off without its Brother Leader and that Africa will be able to plot its future more readily without Gaddafi trying to buy the agenda.
Democrats, then, can find a good deal to celebrate in the events of the past week, however complex.
South Africans who have any interest in their country’s ability to prosecute an effective foreign policy, however, are watching in abject embarrassment as the Zuma administration staggers erratically around the intensely lit stage of the United Nations Security Council.
First there was the “yes” vote for a no-fly zone that we had been repeatedly warned, by United States Defence Secretary Robert Gates no less, would involve a bombing campaign. Then came the claim that we had been duped by the Western powers into supporting the military action. Apparently our diplomats didn’t watch CNN or Al Jazeera when Gates was explaining how no-fly zones work. And apparently they lack the elementary reading skills to understand the term “all possible measures”.
Then came the months of agonising African Union roadmap irrelevance, the backslapping visits to Gaddafi, the refusal to accord even limited legitimacy to the rebels. And then, while the despot’s compound was being looted, came our lonely rearguard action against the proposed release of funds for fuel, medicines and humanitarian relief.
Other respectable countries opposed the bombing campaign. Germany abstained from the original vote; so did India and Brazil. South Africa, uniquely, has confused and angered both supporters and critics of the no-fly zone, and has fluffed a crucial audition for permanent membership of the Security Council.