30 August 2011
NADEL submission on Justice Mogoeng
National Association of Democratic Lawyers
55 Shortmarket Street
Mobile: 078 514 3706
Fax: 086 602 6167
SUBMISSIONS OF THE NATIONAL ASSOCIATION OF DEMOCRATIC LAWYERS (NADEL) ON THE PRESIDENT’S NOMINEE FOR THE POSITION OF CHIEF JUSTICE – JUSTICE MOGOENG MOGOENG
- On 20 August 2011 the Judicial Services Commission (“JSC”) resolved to interview the President’s nominee for the position of Chief Justice, Justice Mogoeng Mogoeng, and to invite relevant stakeholders, including NADEL, to make submissions on his suitability for the position. NADEL appreciates the opportunity to make these submissions and thus contribute to a process of such fundamental national importance. As a national organisation it has proven a difficult task to canvass all our members’ views on this issue. The short time limits within which these submissions were due contributed to the difficulty. NADEL therefore respectfully prays the JSC’s indulgence in allowing it to supplement these submissions at a later stage should this prove necessary in order to properly reflect the views of all our members.
- NADEL is and always has been committed to the promotion of the values enshrined in the Constitution of the Republic of South Africa, 1996 (“the Constitution”) within the legal profession, judicial system and society at large. As stated in the preamble to NADEL’s Constitution, it is committed, inter alia, to:
“the realisation of the goals and objectives as set out in … the [Constitution]; in particular … to:
(a) meaningfully and assiduously strive for a truly democratic and just society, free from oppression and exploitation; and
(b) combat and prevent all instances of injustice, malpractice and unfair discriminatory practices based on race, colour or creed.”
- These submissions are made with the above goals in mind.
QUALITIES OF A CHIEF JUSTICE
- Before making submissions on the suitability of any candidate for the position of Chief Justice, it is apposite to detail the qualities that NADEL submits a Chief Justice ought to have. These include:
4.1 Consistently demonstrated respect and appreciation for the values entrenched in the Constitution, and in particular the rights to life, human dignity and equality and the rule of law, foundational values of our constitutional state, his role including the championing of such values throughout the justice system;
4.2 The respect of his peers, a Chief Justice being a leadership figure in the judiciary as a whole;
4.3 Sound knowledge of the law and of the judicial system as a whole;
4.4 Demonstrated contribution to the jurisprudence of the nation;
4.5 A keen grasp of the legal framework within which the judicial system functions, in order to act in accordance with applicable law in the oversight of judicial functions and to make informed contributions to any changes, additions or amendments to existing law that are required;
4.6 Proven administrative skills at a high level and proven management skills;
4.7 An ability to stay calm under a great deal of pressure;
4.8 A character beyond criticism and a record of accountability for his and his Court’s actions, as the Chief Justice is the face of the judiciary and in his or her persona reside the image of a judiciary and thus significantly contribute to the trust the public have in the judiciary and the judicial system;
4.9 Sound knowledge of basic constitutional principles regarding governance of the Republic – the Chief Justice is fifth in line for the Presidency, his or her ability to act as President should such an eventuality occur must be considered.
- NADEL makes these submissions regarding the suitability of Justice Mogoeng Mogoeng for the position of Chief Justice based on the above broad – but not exhaustive – criteria.
- Mogoeng J’s past contribution to the judicial system informs his suitability or otherwise for the position of Chief Justice. Any concerns raised y his record or issues that require clarification will be outlined in these submissions. There are also topics on which Mogoeng J has not as yet had an opportunity to express his opinion, such as the role of the Office of the Chief Justice as envisaged in currently proposed legislation for example. NADEL hopes the latter will be addressed at Mogoeng J’s interview. To the extent that the relevant topics require detailing or further elaboration from Mogoeng J, the relevant questions will be posed below.
- The submissions made below are informed by Justice Mogoeng’s Curriculum Vitae, his interview by the JSC prior to being appointed to the Constitutional Court bench and his judgments, reported and unreported. Since Justice Mogoeng has neither published articles or other materials nor are there any speeches of his readily available upon research, these are the only sources available to examine his suitability for the position of Chief Justice.
MOGOENG J’S CV AND JSC INTERVIEW IN 2009
- Mogoeng J has referred to his having set up working relations with local universities while Judge President of the North West High Court, in order to assist their law clinics and thus promote access to justice and to provide students with insight into the profession. NADEL views such an initiative as laudable. NADEL would appreciate having some insight into Mogoeng J’s ideas on how it could be implemented at a national level? The promotion of access to justice is just as much a responsibility of a Chief Justice as it is that of the members of the profession, in NADEL’s view. NADEL submits Mogoeng J’s views on this issue are essential to establishing his ability to further contribute to access to justice if he were to appointed Chief Justice.
- Case flow management, for which Mogoeng J has highlighted his experience, is a fundamental aspect of proper administration of our Courts. It is however only one such aspect. To the extent that Mogoeng J only has direct experience of administration in a Court significantly smaller than the majority of Courts in the country, his vision of the manner in which administrative difficulties faced by the judicial system as a whole is as yet unknown.
- Mogoeng J points to his participation in or organisation of events or conferences and workshops. In NADEL’s views these are, with respect, no indication of his broader administrative and management abilities in the long term. Aside from judicial training and case flow management in the small North West High Court, Mogoeng J himself states he has no other such experience. What qualities does he posess that he believes will inform his approach to these elements of his responsibilities as Chief Justice? What knowledge of such challenges beyond the walls of the North West High Court would Mogoeng J bring to the Office of the Chief Justice?
- During his interview for his post on the Constitutional Court bench, Mogoeng J stated that the use of interpreters in our courts is too much of an expense. NADEL is concerned by such statements and their implication of a failure to appreciate the barrier that language can be to access to courts. Does Mogoeng J believe that the eleven official languages have no place in ensuring access to courts? If so what is their role and how can access to courts be effected while appreciating the lack of knowledge of many South Africans of the English and Afrikaans languages?
- Finally, and in NADEL’s view significantly, Mogoeng J was a prosecutor for the erstwhile Bophuthatswana Government from April 1986 to February 1990. In light of the history of our country and the realities of prosecutorial duties during this period, the paucity of information provided by Mogoeng J on his work as prosecutor raises concerns. Of particular concern is his role in Ngobenza v Minister of Justice, Boputhatswana & another in which he defended the Bophuthatswana Government’s bid to defend a stay of execution in a death sentence case. NADEL’s role in the legal profession during the relevant period informs the serious concern we have at Mogoeng J’s active participation in the imposition of the death sentence on accused men and women. Clarity on this aspect of his history is fundamental to establish his commitment to the foundational values of our Constitution. It is not merely the death sentence itself, but its use and application during the Apartheid years that inform NADEL’s concerns. In this respect:
12.1 Did Mogoeng J ever prosecute politically related accused or other death penalty cases?
12.2 How does he reconcile such work with his possible role as head of the judiciary should he be appointed?
12.3 To the extent that such work has been deemed reason enough to deny applicants to the bench, in what respect does he submit it ought not to affect his ability to represent the judiciary in our constitutional democracy?
- NADEL is disquieted by the failure thus far by Mogoeng J to detail his role as prosecutor during the Apartheid era. It is submitted his silence in this respect ought also to warrant elucidation.
CONTRIBUTIONS TO THE LAW AND JURISPRUDENCE OF SOUTH AFRICA
- Mogoeng J mentions a number of cases over which he presided that in his view constitute his “most significant contribution to the law and the pursuit of justice”. Of these, the following three were decided during his tenure at the North West High Court:
14.1 Balatseng v S;
14.2 Chief Lesapo v North West Agricultural Bank & Another; and
14.3 S v Booi & Another;
- In Balatseng v S, Mogoeng J, in our view commendably and with detailed and thoughtful attention to the prerogatives of a right to a fair trial, condemned the failure of a presiding officer to properly assist and guide an undefended accused.
- Mogoeng J states that his decision in Chief Lesapo is the seminal judgment on access to courts. To the extent that Concorde Plastics (Pty) Ltd v NUMSA & Others was decided years prior, what role he ascribe to the judgment on the issue of access to courts? Furthermore, to the extent that the Constitutional Court cited Beinash & Another v Ernst & Young & Others in its judgment on appeal of Chief Lesapo, what role does he ascribe to the latter judgment? In asserting a contribution to the jurisprudence of the country NADEL deems it relevant to establish the true extent of such contribution and to ascertain Mogoeng J’s understanding of the meaning, value and extent of such contribution.
- As for S v Booi, it is a judgment in which Mogoeng J held that two children of 11 and 15 years who had been victims of rape at the hands of two accused ought not to have testified through intermediaries. Mogoeng J found that there was no evidence that the rape victims would indeed suffer undue stress and thus no evidence justifying the appointment of intermediaries. He also found that intermediaries needed to be, themselves, sworn in and given instruction, lest their appointment be invalid in terms of section 170A(1) of the Criminal Procedure Act 51 of 1977.
17.1 However, nowhere in the Act or the relevant Regulations is such a requirement set out. It is therefore unclear on what basis Mogoeng J made such a determination. The failure to fully motivate such a legal requirement is a significant gap in any judgment.
17.2 Furthermore, one of the factors in determining whether an oath administered through an intermediary who has insufficient experience renders the evidence inadmissible is the possible stress to the witness should they have to testify again. Seemingly Mogoeng J did not deem the need for an 11 year old to testify again about her rape, this time in the presence of her rapists, to warrant his intervention. As a result, Mogoeng J held the accused had not had a fair trial and set aside their convictions. This was the only ground upon which the convictions of the two accused were seemingly challenged.
17.3 With the greatest of respect to Mogoeng J, the insensitivity shown to the psychological harm a child might suffer in testifying of her rape by two accused, let alone in doing so twice and the second time in their presence, raises serious concerns about his appreciation of the true nature and impact of rape, let alone child rape.
17.4 The judgment of S v Booi is sadly not the only instance in which Mogoeng J has shown a lack of appreciation of the violent – rather than sexual – nature of rape and the true import of domestic violence. In numerous instances Mogoeng J has demonstrated a pattern of lessening sentences of individuals found guilty of sexually assaulting their wives or partners and of domestic violence. In S v Mathibe, S v Moipolai and S v Modise Justice Mogoeng systematically reduced the sentences of men who he accepted had raped or severely assaulted their wives or partners. His justification for doing so included his assertion that women in relationships are somehow enjoined to assume their partners will want sexual intercourse with them and thus share if not take the responsibility of their being sexually assaulted; that rape is a sexual rather than a violent crime – with no consideration for the psychological harm or trauma caused, the humiliation and degradation of the act; and that the privacy of a home somehow lessens – rather than aggravates – the blameworthiness of an accused. The above are just some of the more shocking aspects of Mogoeng J’s reasoning in these judgments. In light of the considerable work that has been done in recent years to shed light on the truth about rape and domestic violence, to appreciate its violent and degrading – rather than sexual – nature and the insidiousness of relinquishing such offences to the so-called ‘private sphere’, such decisions are a worrying indication of Justice Mogoeng’s insensitivity to victims of rape and domestic violence and his sexist views of gender relations.
OTHER JUDGMENTS BY JUSTICE MOGOENG
- In Gondwe v Minister of Home Affairs & Others Mogoeng J decided on the fate of an applicant seeking to enforce his rights to be free from unlawful detention while under suspicion of holding an allegedly fake identity document. Mogoeng J held that the respondent government institutions were free to arrest the applicant should they deem it appropriate. This decision was made with apparent disregard for the principles of administrative law and its role in protecting individuals from arbitrary actions by government institutions and the fact that, failing a determination that the applicant was in fact not entitled to citizenship, no such arrest could lawfully be effected. An individual in possession of an identity document that has not been proven invalid is not an illegal foreigner and therefore not subject to detention. There is no indication of the Judge’s application or consideration of the administrative law issues that arise from a decision to issue an identity document or to deprive a person of their citizenship. Mogoeng J’s appreciation of such issues is therefore cause for further concern.
- In S v De Beer the Supreme Court of Appeal (“SCA”) unanimously found that Mogoeng J had erred in his determination of a fundamental issue – that of the High Court’s jurisdiction. Significantly Mogoeng J had made a determination in direct contradiction with multiple earlier decisions of the then Appellate Division. The intention to ensure members of the public benefit in a practical way from issues of jurisdiction is a laudable one. The attempt to do so without due regard to settled law is worrying. There is at present no indication that Mogoeng J is alert to the limitations in current law to the challenges faced by members of the public to access to justice, to the extent that it is affected by applicable legislation and jurisprudence.
- In his list of judgments he wrote that were overturned on appeal, Mogoeng J fails to mention the SCA judgment of Molotlegi & another v Mokwalase. In this judgment the SCA criticised Mogoeng J for having failed to exercise his discretion judiciously, mischaracterising the issues, going beyond what he was meant to decide and making a determination without any evidence of the relevant issue being put before him. Is it not clear why Mogoeng J failed to refer to this judgment, in which the SCA made scathing remarks on his appreciation of his role as a presiding officer at the time. Gaps in Mogoeng J’s references to his own record are in and of themselves cause for concern.
- In Molema v MEC for Safety and Security Mogoeng J questioned the probability of a policeman, in the new South Africa, inflicting bodily injuries on a suspect while interrogating him. These occurrences are however known to take place, sadly, quite frequently. Mogoeng J’s conviction that it is improbable suggests a lack of appreciation of the state of our police forces and the impact this has on the prosecution of criminal cases. His previous role as a prosecutor combined with such a decision raises concerns of Mogoeng J’s views on the proper treatment of accused persons and his commitment to the values in our Constitution relating to the role of police and their powers.
- A number of serious concerns are raised by Mogoeng J’s record regarding his commitment to the espousal of foundational values of the Constitution, his knowledge and appreciation of the nature and reality of domestic violence and sexual assault, his seemingly sexist views of women’s rights within the home and his role as an Apartheid prosecutor. NADEL feels strongly that under the circumstances Justice Mogoeng Mogoeng’s appointment as Chief Justice, in light of the importance of the position and its requirements, is not recommended.
DATED this 26th day of August 2011
Submitted by the National Executive Committee of NADEL
On behalf of the National Association of Democratic Lawyers
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 Mogoeng J questionnaire, paras 12 to 15, page 4.
 Mogoeng J’s questionnaire, pages 5 to 13 of Annexure 1.
 Mogoeng J’s questionnaire, para 6, p 2 and his Curriculum Vitae
 1991 (1) SACR 395 (B).
 Mogoeng J’s questionnaire, Para A of Annexure 1, pages 1 to 5.
 2005 (1) SACR 28 (B).
 1999 (10) BCLR 1195 (B).
 2005 (1) SACR 599 (B).
 Mogoeng J’s questionnaire, para A.1. of Annexure 1, page 1.
 1997 (11) BCLR 1624 (LAC).
 1999 (2) SA 116 (CC).
 As yet unreported judgment of 1 March 2001, case no 8/2001, review judgment of Bophuthatswana Provincial Division.
 2005 (1) SACR 580 (B).
 As yet unreported judgment, undated, case no 113/2006, Bophuthatswana Provincial Division.
 Unreported judgment dated 8 February 2001, case no 197/2000, Bophuthatswana Provincial Division.
  SCA 78 (RSA) at para 13.
 Mogoeng J questionnaire, para 16.4, page 5.
 (222/09)  ZASCA 59 (1 April2010).
 Unreported judgment dated 8 March 2002, case no 795/2000, Bophuthatswana Provincial Division, at para 17.