Lawyers lambaste Mogoeng

2011-08-27 08:44

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 ethics.

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.

The organisation 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 .

The council 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.

“His dissent 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.

“...members have raised serious questions regarding [Justice Mogoeng’s] commitment to judicial ethics and to human rights,” it added.

They 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 towards gays.

The council 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 apartheid.

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. 

  • Slapper - 2011-08-27 08:49

    It does not matter what anyone says. They guy is Zuma's lapdog and that is the only criteria that matters to him.

      Netherlander - 2011-08-27 08:55

      Lets sing tgether: "Nkosi Sikalele e Banana Reeepubleeekkkk...." (sound better than Ard)

      Pigscanfly - 2011-08-27 08:56

      We all have to bow down to Baas Zuma

      debrakayestylist - 2011-08-27 08:59

      Like "Moeletsi Mbeki FOR President" on Facebook if you are tired of the nonsense!

      Robnob - 2011-08-27 09:08

      Somebody has to protect Zuma after the constant requests for proper investigation into the arms debacle. Zuma is worried that Zille, and the educated portion of the population, will finally get the answers we've all been waiting for.

      roboman1 - 2011-08-27 11:07

      sound like a perfect African judge to me, "flouting the constitution", homophobic, etc etc, so what's new here. Did anyone ever think Zuma would want anything or anyone else. The top judge must be buyable in a good Africa, autocracy

  • SolomonMagalefa - 2011-08-27 09:11

    So they are unhappy because he had a difference in opinion in a few judgements? It seems to me that judges should be more discerning and not simply follow the decision of the majority. That's what consensus is all about and that's what the public need to see - judges who have an opinion and who are not afraid to express it!

      gatvol4corru - 2011-08-27 09:33

      you have blinkers on -- what about the case where his wife was involved?

      gizzy - 2011-08-27 09:40

      Consensus means debating and agreeing, so your logic is flawed!

      Lab-Rat - 2011-08-27 09:49

      Is it an opinion for it to be wrong to rape a 8 month pregnant woman, or anyone for that matter? Your hatred is blinding whatever ethics you might have.

      Agwambo - 2011-08-27 10:01

      Big Solomon, here you have to go with the DA thinking otherwise people will bash you here if you take an independent ANC thinking. This is DA's space buddy.There is absolutely nothing wrong with that Mogoeng guy, his sin is that he is chosen by our President Zuma. Had he been nominated by Zille everyone would be singing hallellujah on this forum

      Rincewind - 2011-08-27 10:09

      The pith of the criticism is not that he differed, but that in differing he disregarded constitutional values. It is inherently homophobic, and thus contrary to the intention and purpose of the costitution, to hold that being called a homosexual is defamatory.

      grant9 - 2011-08-27 10:09

      I agree with you that a judge should stand by his belief and not just 'go with the flow'. Pity the other judges didn't feel the same about the McBride case as he did. The fact that 783 Zuma has nominated him does put me off him. @Gizzo. The Oxford dictionary defines 'consensus as "general agreement"

      Agwambo - 2011-08-27 10:11

      Solomon, for your own information, my comment has just been blocked because I supported your thinking. This is a DA forum.

      O'forth - 2011-08-27 10:34

      @Agwambo: Like I am going to let the DA's get in my way because it is their forum. Gumf!!! It is a bit more educational than the Sowetan and the drivel Soloman and his friends spews there. To think that it was the Soloman collective who liberated this country! How on earth did that happen? Fact is that it wasn't Soloman and his kind that did. It was people who could actually articulate disagreement in such a way as to convince others of the need to do this differently. There are a lot of DA Solomans on this site but at least they make it obvious and laughable. The problem with Vadis, Soloman and that imposter Steve Biko guy is that they are not interested in outcomes, just brown nosing with the hope of getting their snout in the grub. Soloman, for your info, Moegeng was not the President's first choice. Actually the man who should have been appointed was overlooked because he isn't ike you who follow leaders simply because the are in charge. As a result two other more capable individuals also refused the post for reasons of intergrity which now leaves us with this fourth rate, ex-Bantustan suporter. But I guess that is ok with the likes of you because he is "the President's man". What a joke!

      Ozymandios - 2011-08-27 10:37

      "not simply follow the decision of the majority." Well what is majority rule all about mate? If the majority in parliment can change the Cosntitution then what has majority gotten wrong with this story? The majority of the Bench don't like him! You guys run with the hare and hunt with the hounds as and when it suits you. Its majority rule that puts the ANC IN POWER. Not consensus. Heck if that was the case they'd all be in jail tomorrow on charges ranging from treason to fraud to theft. Now when we criticise your boss (not mine) then all of a sudden we cry 'the Bleeding Consensus and debating bit' to try and impress the peoples that you have progressed somewhat. Consensus and debating are all Colonial concepts of thought so you better not go down that road because you'll really make yourself look stupid more so than you are right now. You reject the fact that their is a constitutional right of the Bench to reject this man and state their opinions yet in the same breath you demand consensus. What are you? A chameleon in a box of Smarties.

      Zion - 2011-08-27 11:33

      SolomonMagalefa, In some cases there is only one correct answer and it is often that single answer which justice can be fairly meted out. The guys mentality came clearly through when he, in a debasing manner, referred to the gay community.

      Zion - 2011-08-27 11:36

      Ag ou Wambo why do you not go back to your own corrupt government in Namibia and live in the Northern area once referred to as Ovamboland in a stroois.

      gizzy - 2011-08-27 13:20

      grant9. Read my comment again!

      Rev. H-Cubed - 2011-08-27 18:45

      Homophobia, just like racism, is not merely a "difference of opinion". Ignoring entrenched human rights is not an acceptable "opinion". Did I really need to point that out, Solomon? Really? Should we view, for example, the use of the "K" word as a mere "linguistic flourish"? We don't allow that for the average citizen, why should it be allowed in high legal office?

      (s)Kai - 2011-08-27 19:22

      as a law student, i've found that most minority judgements rather differ in either their interpretation of the facts or the means to get to a result, the simple fact is that his judgements point to poor application of the law and no regard for judicial etiquette; hence his unsuitability to be appointed as the most senior judge in the land.

  • Wow! - 2011-08-27 09:11

    Zuma and the ANC do not give a damn about the quality of the constitutional court> they have the intent of bringing into disrepute.

  • Ryan Tunney - 2011-08-27 09:12

    No doubt he will be crying racism...raceest, raceest,raceest....

      Figuerro - 2011-08-27 09:50

      Jislaaik man, can't you bloody put race out of this? This seems to be the only way that most News24 wankers argue their points!!

      Neil - 2011-08-27 19:41

      @Figuerro: Maybe if the masses stop playing the race card for everything they do not have an answer for we will stop making a joke of them, simple as that. CAUSE and Effect..

  • Shivermetimb - 2011-08-27 09:12

    Zuma is not well known for taking advice from anybody. Ever. So Mogoeng it is.

      MaanDonkie - 2011-08-27 10:11

      So true...he should have never been deprived of his goat herding career!

  • Mieka - 2011-08-27 09:12

    'Birds of a feather flock together. Sounds as if Zuma has found someone to suit HIMSELF

  • v3 - 2011-08-27 09:20

    This is what Constitutional lecturer Prof Pierre de Vos wrote about Zuma's previous key appointment - of Adv Menzi Simelane as the National Director of Public Prosecutions []: "The appointment shows an utter disregard for the Constitution and the law. It is nothing more than the actions of a gangster hell bent on protecting himself and his cronies. I feel ashamed that I have given our President the benefit of the doubt for all these months." Simelane, of course, is one of the people who plays Jacob 783's stay-out-of-jail card. Too many people will consider Mogoeng more of the same.

  • letsee - 2011-08-27 09:21

    It's a convenient appointmnet and it will go ahead. After all the ANC does't govern with more intergrity than the previous government.

  • Jou - 2011-08-27 09:23

    What we should be affraid of is WHY he was appointed! ... something is cooking.......

  • OZNOB - 2011-08-27 09:28

    how did this guy get to become a judge in the first place as some of his work definitely leaves alot to be desired. if they want him to be chief judge they are either scraping the dregs of the barrel or they ar really desperate

  • gatvol4corru - 2011-08-27 09:32

    Bloody agent! Just as incompetent and corrupt as his comrades and JZ

  • SayWhat? - 2011-08-27 10:12

    That pesky constitutional court keeps getting in the way of ANC policies... so you overload it with political appointees alligned to Jacob Zuma... to be fair the Nats did exactly the same thing with the Supreme Court in the past.

      Freddie - 2011-08-27 11:01

      Saying that two wrongs make a right, is not being fair!

      SayWhat? - 2011-08-27 17:56

      I agree with you Freddy, I'm just suggesting that maybe this is an inherent flaw in every legal system..

  • abg100 - 2011-08-27 10:20

    Solomon-we all have opinions but when you are on the bench you are not supposed to infer your personal opinions but those on which the law is derived and by our very constitution it states that homosexuals are entiteld to the same rights as any other citizen.The fact that he is zuma choice is the biggest red flag in its self!His wife as prosecutor and not informing the client already shows he believes he is above rebuke and such people should not be allowed to wield the hand of justice over the south african public.When suspect appears before the court-he/she should be standing infront of an unbiased judge whos only interest is seeing that due justice is served!!I will go further as to say if this was a white judge he would probably have been disbarred!!!

  • Navyseal - 2011-08-27 10:40

    The mere fact that there is controversy around his candicy makes him wrong for the job. When are we going to elect leaders that are morally beyond reproach? That is the problem with western democracy, a person can be morally corrupt but if he gets the majority support he will rule, case in point ????? the highest office in our country. This does not auger well for the future of this country. People are blinded by emotions and follow what ever they throw up because it is ok for this government to waste billions and keep the poor in the gutter so that they seem to be getting something when the crumbs are thrown their way. it's a vicious system that will keep the majority enslaved.

      Sizwe - 2011-08-27 11:24

      That is flawed thinking. You cannot get a candidate who is liked by everybody in a country of 50 million people and eleven ethnicities and races...

  • acsteyn - 2011-08-27 10:43

    There goes the constitution. Rape now and pay in installments or better yet why just not do a lay-by? I hope Zuma sees into this. But, on the over hand Darren, Zuma got away with it all-together and according to Malema his lapdog, she must have enjoyed it because she had breakfast before she left and he even gave her bus-fare. Here's the rub, rape them, pay them, feed them and bus them. Even if they are mentally challenged.

  • Trueblue - 2011-08-27 10:46

    The ANC elite beneficiaries of the arms deal and other corrupt activities have to ensure that their version of the Information Protection Bill and the Media Tribunal stand the test of the Constitutional Court, and what better way than to have a tame judge leading the court. The court will become the legislative arm of the ANC. A loota continua in the new Kakistocratic Kleptocracy of the Republic of KwaZumalema.

  • abg100 - 2011-08-27 11:15

    We have 16 days of activisem against woman abuse,womans week,the list is endless. Then we have a pres with an endless ammount of wives and off spring-who was on rape charges,corruption etc.How can we expect a judicial system that is fair and just with unbiased servers of the law when the government of the day leads us to belive this is normal, All the anti this and anti that are devoid of meaning as the people who are supposed to lead by example are the very ones who are guilty of such actions.If you form such a liberal constitution then you should place people in these judicial positions that are at least capable of enforcing what the constitution stands for.This is the problem with most anc policies-they look good on paper but when it comes to enforcing them-its a question of does it suit the anc problem of the day. For the man in the street-our justice system is nowhere near as ethical as what the constitution proclaims. Only anc cadres benifit from the "Just prosecution/innoccent till guilty"

  • Sizwe - 2011-08-27 11:19

    An open and democratic country does not subject its populace to be liberal in thought and act, it rather accomodates the various shades of the beliefs existent in such a society, thus a Judge's religious views cannot be pressumed to hamper his professional conduct. As a conservative I too have a place in a democratic society, for as long as my views do not incite harm against or demean any other member or group in society. The fact that he dissented and gave no reason simply means we do not know his motivation for such and thus an insunuation of homophobia is nothing more than assumption with out a proven fact, the Society is being mischievous as many a dissenting view is given without reason on a daily basis in South African courts and thus it is not an anomaly of sorts, but rather one can argue it to be a norm or an accepted practice. Any sentencing is preceded by a formal hearing with both counsels making representation, and as such to give an outcome without comparing the representation is in itself misleading. I am not convinced that the Judge is unfit to be a Chief Justice, all I see are politics in an institution that should protect society from such, and the Judge would be the first Chief justice without links direct or otherwise from the current political dispensation, and that to me should be a major consideration not religious beliefs...

      abg100 - 2011-08-27 11:24

      He hasnt exactly been willing to give these reasons/motivations. Politics is one thing-when he is recommended by zuma who has such a "spotless record" i think its says enough!!!

      Sizwe - 2011-08-27 11:36

      abg. Your thinking is flawed, The Commander-in-Chief HAD to make an appointment, and thus his nominaions cannot simply undermine a person's intergrity or ability to be in an institution he "currently" serves in now can it?

      Spanker - 2011-08-27 12:26

      Great side step on the rape case and the case that his wife was involved in. You defense is like an ostrich, hiding from the facts of reality.

      Freddie - 2011-08-27 12:37

      "I am not convinced that the Judge is unfit to be a Chief Justice" But the moot point is not your negative 'not convinced', we want to be convinced that he is fit! It also appears that there are many more judges that would be much more acceptable to a much wider spectrum of opinion.

  • BryanJhb - 2011-08-27 11:58

    I dealt with the Ethics Division of the Jhb Bar Council during 2004 / 2005 and sadly I have to question their own conmitment to fairplay and transparency. When I raised matters that it would seem they were simply unable to adequately explain they refrained from dealing with my concerns and questions ad seriatim. Also they refused to let me take the matter on review to the SA Bar Council in circumstances where the SA Bar Council had informally advised me that there seemed to be merit to my concerns. Furthermore, I have to also question the underlying ethics of some of the individual members of the Jhb Bar Council. Please understand I am NO supporter of Zuma or Mogoeng.

  • abg100 - 2011-08-27 12:15

    Sizwe: He had to make a decision-point taken. If this is the best of the available candidates,then we are in dire straights! To my knowledge there were other candidates who were far better qualifide for the position and when someones ethicacy is being questioned as president he should be the first to sit up and investigate the questions further.The mere fact that he was nominated and its been left at that[zuma has spoken]in my opinion removes the word democratic from the entire procedure.

  • adw - 2011-08-27 13:41

    He will definitely get the job now!

  • Chris - 2011-08-27 14:33

    Will it matter that the legal fraternity is anti Zuma's latest folly? It is clear that Zuma's choice will be the next high priest overseeing our laws. The question is, will he be able to influence his colleagues on the bench? Is he a leader and will his past decisions not make a mockery of his tenure on the bench? Let's believe that the other judges have the moral fibre to stand up against Zuma's new pet.

  • amos - 2011-08-27 15:57

    Calling someone what that person is .. is it defamatory? if i am called heterosexual, am i being defamed?

      MyTwoCents - 2011-08-27 17:41

      From what I have read - the main complaint is not that he differed from the other judges, but that he didn't give any reason for it. It is perfectly acceptable to hold a dissenting viewpoint, but an explanation should be furnished outlining the reasons for it. Especially as this is the Constitutional court and his reason would have to be constitutionally valid and not a personal conviction. He refused to do so. That makes his judgement suspect - if not unconstitutional.

  • Vince York - 2011-08-27 17:29

    Zuma has made it quite clear where this J. Mogoeng's allegiances lie, in defiance of all logic and goodwill towards the nation in his nowadays 'expected' sidestepping from justice. NO -the People of South Africa have had enough of being dictated to by an unpopular idiot bent only on self preservation and further access to enrich himself and connected acolytes. Next thing is the insinuation that a single person n the capacity of CJ can override and overrule every other persons judgement's and make "pronouncements" like Mpshe did when he ruined a decade of maturing Democracy by implying that "political feelings" are of greater importance than the entire nations legal framework. THAT kind of subversion is tribal custom at its worst AND WE WANT NO PART OF IT. The ONLY SOLUTION is to withdraw J. Mogoeng and make submission of either J. Moseneke or J. Cameron and in light of needing to blacken the Constitution then J. Moseneke gets his few years before J. Mogoeng comes up for it again. ZUMA start to do the right thing if even only for the first time in your life!

  • Lerato Kabe - 2013-11-01 11:16


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