JSC to grill Mogoeng

2011-08-27 16:41

Judge Mogoeng Mogoeng should prepare himself for an avalanche of questions when he appears before the Judicial Service Commission (JSC) on Saturday.

Various interest groups have made submissions regarding his suitability after President Jacob Zuma announced him as his choice for chief justice.

The General Council of the Bar will make submissions, based on contributions from two of its members.

» The Johannesburg Bar has two fundamental concerns: Mogoeng’s commitment to judicial ethics and his commitment to the Bill of Rights.

Some members also question his appointment above other more senior legal practitioners.

“Many members have questioned his human rights record, particularly with respect to discrimination against homosexuals, gender equality and freedom of expression.”

The latter is the result of his deviation in the case of Robert McBride, in which Mogoeng found The Citizen newspaper went too far in calling McBride a murderer. Mogoeng cites this judgement as one of his proud contributions to the law.

Mogoeng’s former Bar Council, in North West, did not contribute but its chairman, Advocate Johan Pistor SC sent a note saying it stood by the opinion of the majority because there was not enough time to find consensus among its members.

» Advocate Alaisdair Sholto-Douglas SC from the Cape Bar Council said it had limited information at its disposal but Mogoeng’s judgments did raise concerns.

» The National Association of Democratic Lawyers (Nadel) pointed out that Mogoeng had not declared a case in which his judgment was successfully appealed against to the Judicial Service Commission (JSC).

The JSC specifically asks for this information in its questionnaire for candidates.

The Appeal Court severely criticised Mogoeng because he didn’t use his discretion correctly and went too far in his judgment in a defamation case.

Mogoeng found words to be defamatory before he had heard the context in which the words were used.

Because Mogoeng did not declare that his judgment was criticised so dramatically by the Appeal Court, further questions were raised.

Nadel also cited concerns over a case that Mogoeng himself listed as a proud contribution to the law.

Because of his finding in this case, an 11-year-old girl who had been raped had to testify again because Mogoeng held she should not have been allowed to testify with the assistance of a mediator in the first place.

He also told the JSC in a previous interview that court interpreters are too expensive.

“Does Mogoeng J believe that the eleven official languages have no place in ensuring access to courts?”

Finally, “Nadel feels strongly that in the circumstances, Justice Mogoeng Mogoeng’s appointment as Chief Justice, in light of the importance of the position and its requirements, is not recommended.”

» The NGO Section27 wants certain guarantees from Mogoeng. They require assurance of his compliance with the Code of Judicial Conduct that stipulates that he will “not take part in the activities of any organisation that practises discrimination inconsistent with the Constitution”.

Section27 also refers to Mogoeng’s membership of the Winners Chapel Church, which claims to be able to “cure” gay people.

“We have no confidence in his ability either to dispense justice in accordance with the values of the Constitution or in his ability to address the complex gender questions that arise in the judiciary.”

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