The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
I am attending the JSC interview with justice Mogoeng and will blog on proceedings. Refresh your browser for updates.
10:15 – Time for a break. I have another appointment so sadly won’t be able to blog on rest of interview.
10:10 – Mogoeng says he understand President might have considered other judges but chose him and somebody had to make themselves available so that work of the judiciary could go ahead. Denies that he has personal ambition.
10:05 – Ngoepe runs through all those who support the nomination. Probably trying to counter the submissions of COSATU and others who criticised the nomination.
10:55 – Smuts asks if civil society have the right and duty to raise questions about Mogoeng’s judicial approach. Mogoeng says gender groupings and others must be encouraged to be vigilant, but all he was questioning was that these institutions were not balanced in their criticism.
10:50 – Adv Smuts asks why Mogoeng followed a 1988 judgment of SCA in rape case when Constitution was adopted in 1994 and minimum sentencing legislation was adopted in 1997. Refers to SCA judgments of 2001 which rejected the Mogoeng argument that it might be a mitigating factor when the rapist knew the victim or was intimately involved with her. Was it sound to refer to 1988 case instead of 2001 judgment? Good question! Mogoeng says one does not always come across all the authorities that are relevant. So he admits that he was wrong (and in effect, that he did not know the judgments of the SCA), but says the fact that he ignored 2001 judgment does not show that he has a sexist mindset. Moseneke follows up and points out that anyone alive to the new values embodied by the Constitution and the legislation could not have made the judgement Mogoeng did and that the judgment was therefore not jurisprudentially sound. Moseneke asks why Mogoeng did not follow the authorities? Moseneke also points out that Mogoeng relied on facts of previous cases instead of the ration decidendi, seems to give Mogoeng a bit of a lecture on how to be a judge.
10:45 Minister Jeff Radebe once again mentioned the “attacks” on Mogoeng. Says there is nothing wrong for a prosecutor being appointed as an acting judge (something that judgments in other jurisdictions have found to be in contravention of the independence of the judiciary). As prosecutors are independent, they can act as judges. This ignores questions about whether such a prosecutor should hear criminal cases when he or she is invested in successful prosecution of accused persons.
10:38 – Prof Schlemmer asks whether JSC and whether it should not appoint better judges to start with, entering a political minefield as this line of questioning can easily be interpreted by some as suggesting that transformation leads to problems. Mogoeng says he would be reluctant to engage with the question.
10:35 – Prof Schlemmer notes that in Germany they want to pass legislation to hold the state liable if a judgment is not delivered within 5 months. Mogoeng says JSC must make sure that there are training opportunities for judges, suggesting that better training would stop delays of handing down of judgments (which can be up to seven years – as Ngcobo stated on another occasion). Suggests training will solve the problem, not disciplinary action against judges who fail to write judgments.
10:28 – Being asked about accountability of judges and the role of CJ in this. Sometimes there is an overemphasis on the independence of judiciary, one should strike a balance between this and accountability. Asked about CJ’s role in disciplining judges i.t.o. JSC Act. Mogoeng says that now that we have the structures in place, we must make sure that these structures get on with its task. Mogoeng says he would not go so far as saying that a judge should be removed if he or she does not deliver judgments in time. Depends on the facts of a particular case.
10:11 – Chohan asks about UCT’s DGRU submission which developed criteria for Chief Justice. One of the criteria is the ability of candidate to lead the Constitutional Court itself. She asks about the esteem he is held by his colleagues at the CC and Mogoeng states that he “has a sound relationship” with his colleagues, not answering whether he is held in esteem by them.
10:05 – Asked why law made by courts seem to differ than from law made by Parliament on rape as former suggests that one should make a distinction between rape of someone known to victim and someone who is not, correctly in my view, suggesting that our courts more generally do not always treat rape in a way that is acceptable or should be acceptable. Deputy Minister Fatima Chohan asks about minimum sentences, pointing out that Parliament has now made clear that knowledge of victim is not compelling reason not to give a minimum sentence. Not sure if she is criticising the nominee who has suggested that it should be a reason to treat rape differently depending on the relationship – despite the minimum sentencing laws. Is she suggesting that Mogoeng did not obey the law as passed by Parliament but rather followed the SCA judgments and hence did not respect the separation of powers? The sentencing laws were passed in 1997, before Mogoeng handed down some of his controversial judgments.
9:53 – Moseneke asks about Mogoeng’s views and that of his church about other religions and their right to exist. Mogoeng says his church is Christian in nature, guided by the holy bible. Other faiths have their own books. There will always be points of disagreement between faiths. Mogoeng suggests that his views might differ from that of his church and that he would be guided by the Constitution as one should not confuse your personal beliefs and the fundamental rights of everyone, thus suggesting that when he is a judge he will not follow the dictates of his church.
9:47 – Asked how he would manage to be CJ given the widespread opposition to his nomination. Mogoeng states that the criticism related to three judgments only (suggesting other rape judgments did not demonstrate gender insensitivity) but now he has had opportunity to show this is not as shocking as it may appear and people will accept that. He says he will reach out to those who criticised him because if ANC and NP could agree to act for best of country, so could others.
9:39 – Some Commissioners trying to stop further questioning of Mogoeng on issues raised before (rape judgments etc) and is supported by others like Deputy Minister Ramatlhodi.
9:34 – Asked about rape judgments and the “point of departure” of judge Mogoeng who suggested that but for the presence of another person the rapist would have had sex with the survivor. Mogoeng again blames the SCA for his views. Still says that because complainant knew the rapist the effect of the rape could not have been so serious.
9:26 – Asked about number of reported judgments, but Mogoeng says he cannot remember how many. Asked again about his Dey “dissent” in which he never gave any reasons. It is suggested that he did not apply his mind to the case at hand, which is something a judge should never do.
9:22 – Being asked about the right to health care and the NHI scheme now. Mogoeng says that that people are fairly satisfied with health services as it has improved.
9:17 – Being asked about competition law now. Judge Dennis Davis might have loved to answer this question but Mogoeng declines to comment due to possibility that such a matter might come before the court.
9:05 – Sunday morning and back at the hearing. Discussion about the devastating COSATU submission which suggests that Mogoeng might not be fit to serve as a judge.
First impressions of the interview: Given the sustained criticism of the nominee by a wide range of civil society organisations, including ANC-aligned COSATU and Nadel, the nominee probably performed better than expected. Although his defensive and emotional defence of his record in his opening statement did not appear judicial and at times sounded more like the response of a politician than a Chief Justice, I would guess that it might have garnered some sympathy from many South Africans watching the interview on TV. Evidence of his quick temper — rebuking the Chair of the JSC for perceived sarcasm and often bristling under sustained questioning from the more critical members of the JSC – might well have diminished his stature with many lawyers and members of the judiciary, but probably also garnered some sympathy among those not well versed with the ways of the judiciary.
The nominee made some excellent points, and his statement that the government should change its briefing patterns in order to assist black and women practitioners to gain the necessary experience to prepare them for appointment to the bench is well taken. (I would argue that anyone interested in the independence and credibility of our judiciary — including attorneys working in big law firms — could also take this need for a change in briefing patterns to heart.)
However, his answers to criticism of his rape judgments were not convincing. He never explained why he thought that it might be a mitigating factor that a rapist is married to or intimately involved with the survivor or why he could say that it was a mitigating factor that the man who assaulted his partner by dragging her behind his car was “provoked” by the victim. Mere platitudes about support for women’s rights will not dispel concerns about the patriarchal views of the nominee regarding women.
His explanation for the non-writing of a judgment in which he disagreed with the judgment that it can never be per se defamatory to call somebody gay was also not convincing. Surely his colleagues would have asked him to provide reasons for his dissent and surely one only dissents when one has reason to? The contention that he did not have time to think about whether he agreed with this judgment and that even today he has not formed a clear view on this issue, is quite frankly, bizarre. It is difficult not to conclude that he decided that being gay is so awful that it would always be defamatory to call somebody gay but that he could not provide reasons to that effect because that would have contradicted the very provisions of the Constitution which he had sworn to uphold. In the end Justice Mogoeng indicated that he might well now have signed on to that judgment, suggesting that he was prepared to change his views — at least in public – if his views became too controversial and would hamper his ambitions – not a characteristic that one would want from a Constitutional Court judge or any judge for that matter.
The JSC’s performance was mixed. The ANC members often appeared to want to answer questions for the nominee and bent over backwards to show their support for him, while some of the more critical questioners probably did their cause more harm than good by asking questions in a tone that was overtly aggressive. Justice Moseneke was an active chairperson and asked some pointed questions of the nominee, providing hints that there might be some tension between him and the nominee. Sometimes the tension between them was palpable. Other questioners posed the difficult questions and allowed the nominee to respond to the sustained criticism against his record, but some questioners seem to suggest that it was close to treason to ask critical questions about a nominee, referring to the criticism as “vicious attacks” and as an “onslaught”, suggesting that they were uncomfortable with democracy, which allows for a sustained scrutiny of the decisions of a President.
The impression left was that the President had already appointed Mogoeng and that the consultation with the JSC was little more than a charade. Some JSC members seem to think that all they have to decide is whether the nominee has the requisite legal qualifications and is fit and proper – not whether he is a good choice or the best choice, suggesting that it saw the JSC as little more than a rubber stamp of the President’s decision except in cases where the President would want to appoint, say a Charter accountant with a serious criminal record as Chief Justice.
A last question: would the submission from COSATU, which suggested that perhaps Mogoeng should never have been appointed as a judge, make any difference to the proceedings? The answer is that it probably would not as the ANC members and Presidential appointees on the JSC have already decided to support the nomination.
17:09 – The meeting is adjourned until tomorrow at 9h00. Will continue then.
16:45 – Adv Smuts asks Mogoeng about the dinner Mogoeng had with Jacob Zuma where he met the President. Mogoeng states that this was the first and last time he spoke to President Zuma – except when he attended the heads of courts conference and at the judges conference. And the fourth time was when he went to the President’s house to be formally asked to become Chief Justice. Of course, this phrasing would give some ammunition to those who wish to challenge the process as it sounds as if the decision had been made to appoint Mogoeng before consultation took place and that the consultation is completely irrelevant. Maybe the nominee just misspoke on this score?
16:44 – Asked about whether he would prefer the greater good of society above the rights of the individual, but Mogoeng declines to comment.
16:36 – Mogoeng asked about why he was selected and not one of the more experienced candidates. When Moseneke was appointed Deputy Chief Justice, says Mogoeng, other judges on the CC were more senior but they were not appointed and no one complained. Mogoeng sounds bitter about the criticism raised about his “nomination” as he claims the tenor of the discussion about him changed after he was “nominated”: first he was mentioned as a possible candidate but when he was nominated people said he was not suitable, which makes no sense.
16:32 – Ngoepe raises the question of the CC hearing the case about the extension of the term of office of the Chief Justice. Mogoeng says he felt “very uncomfortable” sitting in that case (but not uncomfortable enough to recuse himself, it seems). Sounds as if Ngoepe is indirectly having a go at Moseneke.
16:24 – Ngoepe asks about the rape judgments. It appears as if he is coming to the nominees assistance, saying that a judge must list the mitigating factors when he sentences a rapist. The question of whether one should rely on the fact that the women “aroused” the rapist or provoked him as mitigating factors, is avoided.
16:15 – No matter what happens, I think it is a good thing that there is an open hearing after civil society was given the opportunity to express their views. Cosatu made a submission at the last minute which was surprisingly critical of the nominee stating that: “It is disturbing that even if NOT successful Justice Mogoeng will remain on the bench as an ordinary Constitutional Court judge. Whereas the reality is that questions as to his fitness and appropriateness to serve as a judge on ANY court, let alone the Constitutional Court, raises serious concerns as to the nature and the rigour of the original process that enabled him to ascend to the bench.” Those who claim that the nominee has been treated badly seems to miss the point (apart from the cartoon of Zapiro, which I believe was completely out of line).
15:55 – Tea break. So far the interview, after a slow start, has been quite revealing. Justice Mogoeng is being subjected to serious questioning and there has been flashes of anger and irritation coming from him. This puts the rather emotional and defensive opening statement in some perspective. The ANC aligned Commissioners seem to have made up their minds and are trying to protect the nominee. But am I the only person who cringes when white Commissioners question Mogoeng on his experience? It can easily come across as arrogant and runs the risk of sounding racially insensitive.
15:45 – Ngoepe now jumps in and says that it is also wrong for son or daughter to appear before judge. Of course, this is a very good point. But two wrongs obviously do not make a right.
15:34 – Minister Radebe refers to Constitution, which refers to minimum qualifications for appointment as a judge, suggesting that Mogoeng has the MINIMUM qualifications for the job, obviously not setting the bar very high. Now Radebe walking Mogoeng through the failure of the nominee to recuse himself when his wife prosecuted the case and providing the answers to justify this lapse, making it unnecessary for Mogoeng to make his own case. We all know where he stands on this nomination (just as we now know where Moseneke stands on the nominee). Moseneke asks whether there is a difference between a son and a wife when it comes to whether one should recuse oneself. Mogoeng says no: the perception would be the same. In others words, his defence is that others did the wrong thing so when I did the wrong thing I should not be judged for it. Moseneke now makes this very point!
15:30 – Mogoeng asked about how he was received by other judges of CC. They did not necessarily reach out to me.
15:20 – Moseneke jokes that “I am not at all close to the President, indeed, I am not”! This is turning into the Moseneke and Mogoeng show. The electricity between the two (in a negative sense) is palpable.
15:15 – Moseneke asks whether he would have written differently now, would he have said that the man (the rapist) was allowed to be aroused because women was scantily clad. Mogoeng says: “maybe, I would have changed my decision…..”
15:08 – Now asked about the child rape judgment where Mogoeng stated that the rapist had a “tender approach” towards the child. Mogoeng says he was not treating the injury of girl child in insensitive manner but one gets different degrees of violation in rape cases and one must make this distinction. Moseneke mentions the submissions of women’s groups which pointed out that the judgments included myths about rape not in line with gender sensitivity. Mogoeng again relies on SCA. He says SCA reasoning was the same as his. In other words, his defence is: the SCA made me do it.
15:04 – Mogoeng says when he gave the rape judges he was young and he looked at SCA judgments, and finds it problematic that people just focus on the fact that he had mentioned the relationship between the parties as a mitigating factor.
15:01 – Now being asked about whether Mogoeng sees difference between rape and marital rape. Mogoeng now states that he sees rape as rape. Asked whether being married to the victim is a mitigating factor. Mogoeng states he relied on SCA and says marital state is not the only or decisive factor in sentencing. He is trying to skirt the question because the judgement referred to by questioner clearly shows that Mogoeng does make a distinction between marital rape and other forms of rape. As Moseneke mentions all the shocking rape judgments, Mogoeng looks less than happy.
15:00 – Koos van der Merwe asks about Mogoeng’s temper and why he told Moseneke not to be sarcastic: “It is the first time in 15 years that an applicant has been so arrogant”. Mogoeng apologises to Moseneke for losing his temper. Well, this is not boring.
14:50 – Adv Smuts now asks him about appointment of acting judges from ranks of the prosecution service: is this not infringement of separation of powers. Mogoeng says he has only applied his mind superficially but “it is an option worth exploring”. Not an impressive answer as the candidate is skirting the issue. Mogoeng reminds me of Zuma: friendly, pliant and very vague and not really thoughtful enough to answer some of the difficult questions. Moseneke pushes the point, saying this is a very vital issue for the independence of the judiciary, so he is suggesting Mogoeng is not really a person who has sufficient concern for this independence.
14:45 – Now being asked why he has no publications and so few reported cases. Mogoeng says he has no passion for writing articles. He suggests that some judgments were not reported for reasons that are not clear.
14:40 – Moseneke now pursues this very question. Mogoeng seems to skirt the question as he seems to suggest that because he did not have time he did not give reasons and now he claims that he does not have a view on this now. Mogoeng is angry and calls Moseneke sarcastic because Moseneke presses him and does not allow him to skirt the issue. Mogoeng now claims that he would have not dissented! In other words, he is disavowing his previous views on this issue by pretending that he never had real views on the matter to start with. Wow! Not very consistent or principled. There is clearly some tension between Moseneke and Mogoeng.
14:36 – Now being asked about the Dey case and about not writing a dissent. Mogoeng says he should have provided reasons. Someone should ask him what these reasons would have been.
14:30 – Is being asked now about chairing JSC and whether it is doing its job. He talks about briefing patterns and why government often only briefs white counsel and the need to change this. This is a good point, but what a Chief Justice can do about this is not clear.
13:30 – Moseneke asks that if CJ is intellectual leader, then must convince us that you have that intellect. but now it is lunch first.
13:23 – Lex Mpati, President of SCA asks about the relationship between JP’s and the CJ as well as about President Zuma’s statement in which he told judiciary not to make policy. Mogoeng says that judiciary must be independent from other branches of government and lobby groups, but must know it’s role is not boundless. Problem arises when judges determine policy.
13:16 – Adv Madlanga asks about how CC colleagues feel about his appointment. Mogoeng says any CC judge might want to be CJ but no judge on CC would not cooperate because of disappointment about not being appointed. Good answer.
13:07 – Adv Fourie asks about court structure and the question about whether CC should become apex court as well as about office of Chief Justice. Mogoeng talks about JP’s, basically saying same thing as in previous interview. Talks about need for CC to have sifting mechanism to select only really important cases.
13:00 – Minister Radebe talks about a “vicious campaign” against Mogoeng and asks whether he would be able to carry his colleagues with him and provide examples of this. The ultimate sweetheart question. Mogoeng says he has confidence of colleagues as at judges conference he was asked to oversee implementation of decisions taken there. Moseneke says: one thing to run a conference another to be Chief Justice.
12:45 – Ms Boroto asks about access to the judiciary; how would you ensure access to justice for all? Justice Mogoeng says he invited traditional leaders, religious leaders and civil society to conferences to discuss these issues and he believes traditional courts could play a role here. (Gender activists will of course be rather nervous about this proposal as traditional courts are by their very nature patriarchal.) M states that such courts could be trained so that they actually adhere to the Constitutional imperatives of gender equality.
12:20 – Judge President Bernard Ngoepe now asking questions, calling the criticism against Mogoeng “an onslaught” and making a longwinded speech. Says that JSC members have an open mind about the issue.
11:46 – So, finally Mogoeng’s statement is coming to an end and he claims again that he is neither homophobic nor gender insensitive.
11:40 – On freedom of expression, he states that this right must be exercised with reference to dignity. His concerns have been vindicated by some of the cartoons about him. This suggest that the judge believes Zapiro cartoons about him are defamatory.
11:27 – Now dealing with why he prosecuted people on behalf of the Bophutatswana bantustan. He got a bursary from that government, despite organizing a protest on June 16 and being dismissed from school for it. Bursary required him to become a prosecutor.
11:24 – Justice Mogoeng seems to have an uncanny strategy – wear down critics by droning on for so long that no one would ask difficult questions.
11:14 – He refers to the appointment of John Roberts as Chief Justice of the USA when he was only 50 years old. Maybe not the best example as Roberts is a far right-wing judge and was appointed by the bumbling George W Bush. But I agree that his age is not a very convincing reason for not appointing Mogoeng as Chief Justice.
11:10 – Quotes from a male rape case which, perhaps inadvertently, underlines that he sees this kind of rape as more disgusting than the rape of a woman.
11:07 – On the Dey case he states that he refused to sign on to aspect of judgement which states it cannot be per se defamatory to call someone gay, Muslim or Christian. If this is to be believed he is saying that it would often be defamatory to call someone a Christian.
11:03 – On homophobia M states that he has constitutional right to freedom of religion and that his church is no different from other churches, based on the idea that man must marry a woman and not another man. In effect, he says that he endorses homophobia of his church but that this is no different from homophobia of other churches.
11:00 – M is reading his document of more than 40 pages in which he attempts to justify his various judgements on rape and other controversial judgements.
11:00 – M reads from judgement where he stated that it was “highly insensitive” of a man to punch and rape his eight month old girlfriend. I would not call it insensitive, I would call it brutal and callous.
10:50 – Now discusses the various controversial gender violence cases. Says accused who dragged his girlfriend behind his car was given a suspended sentence so that he could be put on terms. Minister Rbadebe talks about the viscous attacks on Mogoeng.
10:45 – M: It is unfair and disingenuous to use 3 cases out of 10 to argue that I am not sensitive to gender violence. He mentions cases where he imposed heavy sentences on the men who were convicted of rape.
10:40 – M makes opening statement. Talks about legal philosophy and commits himself to Constitution and it’s values.
10:28 – Decided that Justice Mogoeng will be interviewed first, and he takes his seat.BACK TO TOP