Lawyers lambaste Mogoeng

2011-08-27 08:44

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 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.         

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