I'm not a homophobe, Mogoeng says
Cape Town - Chief justice nominee Mogoeng Mogoeng says he is not homophobic or gender-insensitive, nor is he inexperienced for the job.
In a 38-page written reply to claims about his reputation, published by The Mercury newspaper on its website on Friday, Mogoeng says he took an oath as a judge to uphold and protect the Constitution and the human rights entrenched in it.
"I would like to rebutt any suggestion that I am insensitive to gender-based violence, that I am homophobic, that I have little or no regard for judicial ethics and that I do not subscribe to freedom of expression."
He is to be grilled by the Judicial Service Commission (JSC) on Saturday morning on his fitness to hold office.
Mogoeng, nominated by President Jacob Zuma to be the country’s next chief justice, says he has been a judge for more than 14 years, and that the only other Constitutional Court judges with longer services on the present Bench are justices Froneman and Cameron.
He had been a judge president for seven years, "whereas none of my other colleagues at the Constitutional Court have been permanently appointed to lead a division, small or big".
Mogoeng goes into detail about rape cases he has presided over and where he imposed or confirmed substantial periods of imprisonment.
"These cases... clearly demonstrate that I am not insensitive and lenient to criminals when it comes to gender-based violence, as alleged."
The Constitution guarantees every South African freedom of religion, belief and opinion, he writes.
"In the exercise of this right, I have fully embraced the Christian faith," he says.
The fact that his church - the Winners’ Chapel International Church - was opposed to homosexuality was not something peculiar to it, nor did it have as a core value the attitude that homosexuality should not be practised, or was deviant.
"It is based purely on the Biblical injunction that a man should marry a woman. The position it has adopted in this regard is similar to all Christian churches and religions to which many other judges belong."
JSC spokesperson CP Fourie said the interview could get "personal" when the 23 commissioners grill Moegeng on Saturday morning.
"The commissioners of JSC are allowed to put questions to Justice Mogoeng," Fourie said.
"The interviews can get personal. I think the requirement is that the questions need to be fair and applicable."
The hearings will be led by Deputy Chief Justice Dikgang Moseneke.
"It will be within the discretion of the deputy chief justice to decide which questions are applicable and fair," Fourie said.
After the interview, the JSC would deliberate on Mogoeng's written responses, his responses at the interview, and submissions from various law bodies, among others.
President Jacob Zuma would then be advised of the JSC's views "as to his suitability or otherwise".
Section 174(3) of the Constitution provides for the chief justice to be appointed by the president after consultation with the JSC and leaders of political parties represented in the National Assembly.
"The president appoints the chief justice," said Fourie.
"The only requirement is that there needs to be meaningful consultation with an open mind. It does not mean there has to be consensus."
It would "unprecedented" for the JSC to challenge Zuma's final decision in court.
At a loss
Mogoeng, born in Goo-Mokgatha (Koffiekraal) village, north-east of Zeerust, on January 14, 1961, was nominated for the job by Zuma, following the retirement of former chief justice Sandile Ngcobo after his term of office expired on August 14.
The African Christian Democratic Party, the ANC and its allies, have thrown their weight behind Zuma's choice of Mogoeng.
The decision however has been widely criticised by opposition parties, civil rights groups and NGOs and the Cape and Gauteng bars.
In its submission to the JSC, the Cape Bar Council said it was "at a loss to understand" how Mogoeng, who became the judge president of the North West High Court in October 2002, and was appointed to the Constitutional Court in October 2009, could be a suitable candidate to succeed Ngcobo.
"The (Cape Bar) is... at a loss to understand how a 51-year-old judge with less than two years experience on the Constitutional Court and less than a handful of truly significant judgments could be preferred as chief justice to the 63-year-old Deputy Chief Justice (Moseneke)," the bar says in its submission.
Moseneke had served on the Constitutional Court since 2002, held the office of Deputy Chief Justice since mid-2005 and authored a string of weighty judgments during his nine years on the court.
Mogoeng, on the other hand, had presided over only a "handful" of judgments since his appointment as Constitutional Court judge.
The Johannesburg Bar Council rebuked Mogoeng's nomination in its submission, and questioned his commitment to the Bill of Rights and judicial ethics.
The council criticised Mogoeng for not giving reasons why he differed with his Constitutional Court colleagues, 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," the submission says.
"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."
Last week a number of civil rights groups said they planned to object to Mogoeng's nomination based on previous judgments relating to violence against women.