Lawyers lambaste Mogoeng
Jacques Pauw, Media24 Investigations Unit
Johannesburg - The Johannesburg Bar
Council has delivered a scathing rebuke to Judge Mogoeng Mogoeng’s nomination
as Chief Justice, questioning his commitment to the Bill of Rights and judicial
The Bar Council’s
response was obtained by Media24 Investigations yesterday shortly after it was
submitted to the Judicial Service Commission which is considering President
Jacob Zuma’s nominee who has already been beset by controversy.
The Judicial Service
Commission will consider the Johannesburg Bar Council submission among others
when it subjects Justice Mogoeng Mogoeng to a public interview to interrogate his
suitability for the top judicial job.
Its submission is the
strongest criticism to emerge from his legal peers over his nomination.
sharply criticised Mogoeng for not removing himself from a case in which his
wife was the prosecutor and said that he should have informed the accused in
the case of his relationship .
criticised him for not giving reasons why he differed with his colleagues in
the Constitutional Court who had ruled that a person could not be defamed by
being labelled a homosexual.
indicates that he would, in fact, have found that it could be defamatory simply
to refer to a person as being homosexual. If this is so, it would
indicate a prejudicial attitude to members of the gay community, in conflict
with the established jurisprudence of the Constitutional Court on this point,
as well as the values in the Constitution,” the submission said.
raised serious questions regarding [Justice Mogoeng’s] commitment to judicial
ethics and to human rights,” it added.
argued there was a perception that Judge Mogoeng was homophobic and the
perception was strengthened by his membership and leadership role in the
Winners Chapel International church which was known to have conservative views
questioned his commitment to gender equality and referred to three of his
decisions where he had reduced the sentences imposed on rapists.
In one case a man had
raped his partner who was eight-months pregnant and had hit her in the face.
Judge Mogoeng had found that the man had committed rape but had reduced the
sentence because there had not been violence in the relationship previously.
The bar council also
questioned Mogoeng’s views in differing from his colleagues in a case where
Robert McBride had claimed defamation from the Citizen newspaper which had
called him a murderer for planting bombs as part of armed resistance against
Mogoeng had differed
with other judges who said that McBride could not claim to have been defamed
simply because he had received amnesty for his acts.
“An examination of
[Judge Mogoeng’s ] attitude to constitutional values indicates what may be
fairly described as a conservative attitude to individual rights and
liberties. In some instances he appears to have flouted the values of the
Constitution and entrenched rights,” the council said.