Two bulls. One kraal. Can it work?

2011-09-03 18:29

Does Judge Mogoeng Mogoeng have the intellectual ability to lead the judiciary?

With this veiled question, a public war of words exploded into a day of spectacle as the Judicial Service Commission (JSC) met to interview Mogoeng.

Activists picketed the hearings while Cosatu has called on the JSC to recommend not accepting President Jacob Zuma’s nomination of Mogoeng as the next chief justice.

Yesterday turned into a showdown between deputy chief justice Dikgang Moseneke and Mogoeng.

The question now is whether the two men can work together.

“The chief justice is the intellectual leader of the judiciary. He is the visionary. It is he or she that is the flag-bearer,” Moseneke said, after an earlier first skirmish when he tried to get Mogoeng to speed up the reading of his 47-page response to a month of criticism following Zuma’s nomination.

Justice minister Jeff Radebe stepped in and insisted on Mogoeng’s right to take his time after what he called a month of unprecedented mobilisation against him.

After lunch, Mogoeng answered the intellect question. “In all humility, I have to say I have no doubts about my intellectual depth.”

The atmosphere was tense in the Cape Town International Convention Centre between the two men, who sat directly opposite each other.

Activists, legal experts and members of the public gasped audibly as the two judges tackled
each other.

At one stage, an irritated Moseneke rephrased a question for Mogoeng’s benefit, reminding him that “if you listen you might be able to answer”.

Mogoeng hit back: “You don’t have to be sarcastic, sir.”

Koos van der Merwe, IFP MP, reprimanded Mogoeng for this, calling him “arrogant” and asking whether he was in control of his temper and emotions.

Mogoeng apologised.

But the tough talk continued between the two judges.

Moseneke asked Mogoeng why he, in particular, had been nominated by Zuma while there were so many other legal experts with more experience.

Moseneke later explained he had only asked because he could not read Zuma’s thoughts.

Moseneke has been overlooked a second time for the top judicial job.

At the previous JSC meeting, Moseneke said he did not covet the top job.

Mogoeng tried to get his own back. He commented that colleagues on the Constitutional Court might be “disappointed” because they had not been chosen.

Legal experts believe that despite their heated exchange, Mogoeng and Moseneke can still work together.

Independent legal expert advocate Kevin Malunga said: “The ball is ultimately in Moseneke’s court.

If he is a professional person, he will accept Mogoeng’s leadership. However, if he is unwilling to accept that leadership, a wise option would be to step aside for someone who does.”

Constitutional law expert Shadrack Gutto said Moseneke’s maturity would win the day.

“He has come to terms with being overlooked for the (chief justice) position by President Jacob Zuma on two occasions. I don’t believe he is bitter.”

Zuma is constitutionally entitled to appoint the country’s chief justice, but must consult with the JSC and opposition parties before he makes the appointment official.

Zuma is under no obligation to heed the commission’s advice.

Cosatu said in a statement yesterday: “The reality is that questions as to his fitness and appropriateness to serve as a judge in ANY court, let alone the Constitutional Court, raise serious concerns as to the nature and rigour of the original process that enabled him to ascend to the bench.”

Sonke Gender Justice Network spokesperson Mbuyiselo Botha and Tshwaranang Legal Advocacy Centre director Lisa Vetten criticised Mogoeng’s responses to questions about his judgments on the different forms of rape.

“His answer was unsatisfactory and evasive,” said Vetten.

In 2007, Mogoeng reduced a convicted rapist’s two-year sentence, arguing that the man was aroused by his wife.

He told the JSC that different forms of rape resulted in different degrees of injuries, which required different types of sentencing.

Vetten said rape was rape and that rapists must be severely punished by the courts. She said Mogoeng was bound by conservative judicial precedent on rape sentencing when he could be transformative and progressive.

“Mogoeng is not good for gender equality. I don’t think he is a right candidate for the chief justice position,” she said.

Botha said Mogoeng was likely to reverse the gains made in terms of child and women’s rights.

The JSC interview continues today.

Read Justice Mogoeng’s full response

– Additional reporting by Cedric Mboyisa and Mandy Rossouw 

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