Controversy over judge appointment

[Steve Hayes]

ALLISTER SPARKS: At home and abroad
Of all the blunders President Jacob Zuma has made in his still young
incumbency, his nomination of Judge Mogoeng Mogoeng as the next president of
the Constitutional Court and chief justice of SA is by far the most egregious.
Published: 2011/08/31 07:09:14 AM

OF ALL the blunders President Jacob Zuma has made in his still young
incumbency, his nomination of Judge Mogoeng Mogoeng as the next president of
the Constitutional Court and chief justice of SA is by far the most egregious.

This is the single most important appointment the president can make. It lies
at the very heart of the interpretation and protection of our c onstitution,
and thus of our hard- won democracy.

The nation expects the president to choose carefully to ensure he appoints
someone whose judicial credentials are widely acknowledged and someone who is
acceptable to as broad a cross-section of the nation as possible.

Yet Zuma has bypassed Judge Dikgang Moseneke, the deputy president of the
court, whom the legal profession is almost unanimous in regarding as the
obvious choice, and named a highly controversial figure instead.

Why? It is difficult to escape the conclusion that the president has a
personal prejudice against Moseneke. This is the second time he has bypassed
the most respected legal mind on the court, who also happens to be in pole
position for the senior job.

Moreover, it is believed Zuma approached three other judges before turning to
Mogoeng, and that all declined the job. Could it be they, too, recognised
Moseneke as the obvious candidate and were uncomfortable about accepting it
ahead of him? If that is the case, it means Moseneke didn’t even figure among
the top four potential candidates in the president’s mind. In fact it means
Zuma has blackballed him.

One is left to assume this is probably because Moseneke is not a member of the
African National Congress (ANC), but was once a protege of the ANC’s great
rival, the Pan Africanist Congress (PAC).

He was imprisoned for 10 years on Robben Island as a PAC activist at the age
of 15, the youngest prisoner among that august group, but Moseneke has not
been politically active for many years. He has focused on his role as a fine
lawyer instead. What is even more troubling is the juridical record of the man
Zuma has named as his choice to be chief justice, and thus the legal expert
who must head the Constitutional Court and lead the whole judiciary through a
complex restructuring process.

It is clear that Mogoeng does not enjoy the full confidence of the legal
fraternity to play that role.

Judges can be judged only on their published work and the standard of the
judgments they have handed down, and Mogoeng’s record is not inspiring. He has
published nothing and delivered surprisingly few judgments in cases of
consequence.

There is another factor that warrants closer examination. Mogoeng is an
ordained pastor of an evangelical religious sect called Winners Chapel SA —
the local branch of a chain of Nigerian ministries founded by Bishop David O
Oyedepo, one of Nigeria’s richest men, who owns fancy cars, vast tracts of
land and his own fleet of aircraft . The sect, itself immensely wealthy,
promises riches to its members through a process called "supernatural wealth
transfer", by which God rewards those who give generously to the ministries’
mission to liberate the world from all oppressors of the Devil. Hence the
notion that they are "winners".

The sect also preaches faith-healing — and, along with similar sects in the
US, opposes abortion and holds that homosexuality is a "perversion" that can
be cured.

This raises questions about whether Mogoeng’s beliefs, through his religion,
may be in conflict with the c onstitution, which entrenches the protection of
sexual orientation together with other human rights. Confronted with a case
involving homosexuality, or the perpetrators of gender-based violence, could
Mogoeng discharge his oath of office "to uphold and protect the c onstitution
and the human rights entrenched in it?"

This throws into relief Mogoeng’s dissent in a Constitutional Court judgment
last March, which has already become the subject of strong controversy.

The case involved a man who brought an action for damages against others for
manipulating a picture he alleged depicted him as a homosexual. The majority
dismissed this aspect of the claim on the grounds that it cannot be defamatory
to describe someone as being a member of a constitutionally protected group.

Mogoeng was the solitary dissenting judge on this point, but he gave no
reasons. He has been sharply criticised for this, because in terms of the Code
for Judicial Conduct, judges are required to give their reasons for any
decision. This is because it is the only way judges can be held accountable.
It is doubly important that they do so in the Constitutional Court because, it
being the highest court in the land, its judgments make case law for the
entire country.

But the bigger question is whether Mogoeng failed to give a written judgment
because his dissent was really based on his religious beliefs. We don’t know.
But it is surely incumbent on the Judicial Service Commission (JSC) to ask
him.

Moreover, there is a clause in the Code of Judicial Conduct that requires a
judge to make a public commitment that he will "not take part in the
activities of an organisation that practises discrimination inconsistent with
the c onstitution".

There is a precedent for this. When Judge Thomas Cloete was interviewed by the
JSC for appointment to the Supreme Court of Appeal in 2003, the panel
expressed concern that he was a Freemason, an organisation that excludes women
and holds its meetings in secret. Cloete resigned from the order and was duly
appointed.

But it appears the JSC has never confronted Mogoeng with his membership of the
Winners sect. It should do so now.

Human rights and women’s organisations have drawn attention to three other
Mogoeng judgments, delivered while he was judge president of the North West
High Court, which they believe reveal a callous attitude towards violence
against women.

In an appeal case, Mogoeng suspended a two-year jail sentence on a man
convicted of raping his estranged wife by throttling and pinning her down when
he revisited her at what had been their home.

Mogoeng said the man must have been sexually "aroused" when she entered the
blankets where he was lying. But he had not hit or kicked her; no real harm
was done by the strangling; only "minimum force, so to speak, was resorted to
in order to subdue the complainant’s resistance".

The second case also involved marital rape, in which a man sexually assaulted
his wife, eight months pregnant, in front of another man. Mogoeng reduced the
man’s 10-year sentence by half on the grounds that the act could not be
"legally categorised as rape" because the two were married — a legal error
that ignored marital rape as set out in the Family Violence Act of 1993.

The third controversial judgment involved a case in which a man had been
sentenced to two years’ imprisonment for tying his girlfriend to the back of
his car and dragging her along a gravel road for 50m.

Mogoeng found that the woman had "provoked" the man and that her injuries were
not really serious. He offered the option of a R4000 fine.

Think again, Mr President. You can’t really do this.

• Sparks is a veteran journalist and political analyst.

http://www.businessday.co.za/articles/Content.aspx?id=152076

[Bob Dubery]

Post by Steve Hayes
There is another factor that warrants closer examination. Mogoeng is an
ordained pastor of an evangelical religious sect called Winners Chapel SA —
the local branch of a chain of Nigerian ministries founded by Bishop David O
Oyedepo, one of Nigeria’s richest men, who owns fancy cars, vast tracts of
land and his own fleet of aircraft . The sect, itself immensely wealthy,
promises riches to its members through a process called "supernatural wealth
transfer", by which God rewards those who give generously to the ministries’
mission to liberate the world from all oppressors of the Devil. Hence the
notion that they are "winners".
The sect also preaches faith-healing — and, along with similar sects in the
US, opposes abortion and holds that homosexuality is a "perversion" that can
be cured.
This raises questions about whether Mogoeng’s beliefs, through his religion,
may be in conflict with the c onstitution, which entrenches the protection of
sexual orientation together with other human rights. Confronted with a case
involving homosexuality, or the perpetrators of gender-based violence, could
Mogoeng discharge his oath of office "to uphold and protect the c onstitution
and the human rights entrenched in it?"

organisation that practises discrimination inconsistent with

Post by Steve Hayes
the c onstitution".

Indeed. He's not the only religious person who would be likely to be
less than objective on matters of sexual preference, but he is the
only one up for the highest judicial job in the land.

More worrying, though, to me was his claim that he had received a
personal, private revelation from God to the effect that the Almighty
wanted him to take the job.

Really?

He must know that there is no way that he can prove this, yet he
thinks it should carry some weight. This doesn't speak of a very sharp
or rigorous legal mind. Judges are not just upholders of the law (and
already there are doubts about wether Mogoeng will uphold the law
above his own personal beliefs and prejudices) but also are sifters
and weighers of evidence and seekers of truth (or, at the very least,
the greater probability). By making this claim Mogoeng is relying on
hearsay - and he must know it.

The more Mogoeng is put under the spotlight of scrutiny (as somebody
seeking the Presidency of the Constitutional Court should be) the more
his nomination looks like a massive mistake and the less impressive a
figure he cuts.

[Steve Hayes]

Post by Steve Hayes

Post by Steve Hayes
There is another factor that warrants closer examination. Mogoeng is an
ordained pastor of an evangelical religious sect called Winners Chapel
SA — the local branch of a chain of Nigerian ministries founded by
Bishop David O Oyedepo, one of Nigeria’s richest men, who owns fancy
cars, vast tracts of land and his own fleet of aircraft . The sect,
itself immensely wealthy, promises riches to its members through a
process called "supernatural wealth transfer", by which God rewards
those who give generously to the ministries’ mission to liberate the
world from all oppressors of the Devil. Hence the notion that they are
"winners".
The sect also preaches faith-healing — and, along with similar sects in
the US, opposes abortion and holds that homosexuality is a "perversion"
that can be cured.
This raises questions about whether Mogoeng’s beliefs, through his
religion, may be in conflict with the c onstitution, which entrenches
the protection of sexual orientation together with other human rights.
Confronted with a case involving homosexuality, or the perpetrators of
gender-based violence, could Mogoeng discharge his oath of office "to
uphold and protect the c onstitution and the human rights entrenched in
it?"

organisation that practises discrimination inconsistent with

Post by Steve Hayes
the c onstitution".

Indeed. He's not the only religious person who would be likely to be
less than objective on matters of sexual preference, but he is the only
one up for the highest judicial job in the land.
More worrying, though, to me was his claim that he had received a
personal, private revelation from God to the effect that the Almighty
wanted him to take the job.

One thing I find interesting about the whole brouhaha is that everyone
seems to be obsessed with this church's presumed attitude towards sexual
matters, and very few seem to be at all concerned about its attitude to
class, and particularly towards those that the dominant class regards as
"losers".

[Bob Dubery]

Post by Steve Hayes

Post by Bob Dubery
Indeed. He's not the only religious person who would be likely to be
less than objective on matters of sexual preference, but he is the only
one up for the highest judicial job in the land.
More worrying, though, to me was his claim that he had received a
personal, private revelation from God to the effect that the Almighty
wanted him to take the job.

One thing I find interesting about the whole brouhaha is that everyone
seems to be obsessed with this church's presumed attitude towards sexual
matters, and very few seem to be at all concerned about its attitude to
class, and particularly towards those that the dominant class regards as
"losers".

Mogoeng is now chief justice. There are concerns, valid concerns,
about wether he will allow his own personal prejudices to override his
responsibility, his duty to uphold the entirety of the constitution.
These concerns arise from the record that is to be found in his
rulings. There isn't much in there to suggest how he would let matters
of class colour his rulings. It's valid to attack on the basis of the
evidence that is there. His duty is to uphold the whole of the
constitution. There are grounds for believing that he will not do so,
and that's why his appointment is worth questioning - is he able to
put his personal feelings aside and test matters bought before him
against the foundation law of this country? Personally I couldn't care
less what church he belongs to or if he belongs to one at all - I want
to be sure that he is going to conduct himself with rigour and
impartiality and in line with the constitution.

I also don't see why the issue of Mogoeng's church's teachings on
wealth and salvation should suddenly be a concern - unless one has
consistently condemned other churches that preach a similar message.
There are plenty of churches that will tell you that God wants you to
be materially wealthy and whose members and pastors seem to worship
Mammon at least as enthusiastically as they worship the Almighty. This
is what Christianity has allowed itself to become, if only by not
speaking out about the matter.

Ronald Reagan had what he called the 11th commandment - thou shalt not
speak ill of a fellow Republican. Christianity, as a broad movement,
has adopted a similar practice - not criticising any person or
organisation that waves a bible and proclaims itself to be Christian.
It's the same "principle" that Reagan applied, but it's not actually a
principle, it's the abandonment of principle, it's the equivalent of
"my country right or wrong" style patriotism.