Chief Justice Mogoeng Mogoeng would never allow his faith to override his oath to uphold the Constitution, even if these two value systems clashed in court. In fact, Mogoeng believes the Constitution does not need to be changed “from the look of things” and replaced with a version infused with Christian morality.
However, the chief justice believes that religion could hold some answers to the key dilemmas facing society, and organised religion could do more to ensure these options were known to society.
Mogoeng addressed the media at a briefing at the Constitutional Court in Johannesburg on Wednesday, in an effort to clarify controversial remarks he made on law and religion.
The remarks were made during an address at the University of Stellenbosch last week. Mogoeng was invited by the university to address the conference on Law and religion: The quest for common good in pluralistic societies.
In that speech, Mogoeng said: “I believe that we can only become a better people if religion could be allowed to influence the laws that govern our daily lives starting with the Constitution of any country.”
On Tuesday, Mogoeng said those who criticised his speech had either not read it, or had misunderstood it. He said he only used Christian references in his speech because this was the religion he was most familiar with, and said he did not intend to “push religion down the throats of South Africans”.
Mogoeng said the African continent needed moral regeneration and all religions had “treasures”, which society could choose to adopt as part of its value system, so that problems in society could be resolved.
Some of these problems included, for example, adultery, divorce and “promiscuous fornication. Most of our lost generation come from broken families, and adultery is a major cause of family breakdowns,” he said. And “most marriages” affected by adultery ended in divorce, he said, adding that children suffered and could turn to crime as a result.
“The point is, we all know there have been many deaths resulting from the tensions flowing from adultery,” he said. Mogoeng said the same could be said of corruption, “which stems from greed”, and said society needed to consider the impact of “promiscuity” on the spread of HIV.
“We need to ask, what can religion offer? Can we put it on the table, discuss it, or reject it?” he asked. But religion’s usefulness to society would have to be when it was “properly practised”, he said. This meant that “the pelting of stones”, for example, was not permissible.
Mogoeng was noncommittal when asked if he meant that South Africa’s laws were therefore inadequate, although he emphasised that this did not mean they should be changed, or would be changed.
“Are we making it too easy to get divorced without considering the impact this has on children? What does religion say? Are we doing enough to ensure that divorce is a last resort?” But Mogoeng was adamant that he was not advocating for Constitutional change.
“I’m not saying the Constitution or any particular law must change, but I also know that we haven’t finished changing laws [the Constitution was last amended in August 2013].”
‘Better organised’ religious groupings
Mogoeng said religious groupings needed to be “better organised” to effectively participate in the consultative process before laws were passed. And “in the future”, Mogoeng said, religion might then hope to influence law making at a consultative level.
A question from the floor put it to Mogoeng that his views were in conflict with the jurisprudence of the Constitutional Court. Previous judgments have articulated the court’s position that religion should not infuse law making.
Mogoeng also admitted that biblical views on homosexuality were in conflict with the Constitution. However, he said this did not affect his ability to uphold constitutional values. “As a Christian I know that the Bible speaks out against homosexuality, but I took an oath, and I take that oath very seriously … My responsibility [as a judge] is to ensure that every gay and lesbian person enjoys their rights as protected in the Constitution,” he said.
Writing in the Mail & Guardian in April, Mogoeng described presiding over cases where the Constitution and his religion had been in conflict. But he said he had never allowed his faith to override his commitment to uphold the Constitution.