Mogoeng defends record, slams critics

2011-09-03 13:00

Cape Town - Chief Justice nominee Mogoeng Mogoeng blasted his critics and rigorously defended his record as a prosecutor and judge before his interview with the Judicial Services Commission (JSC) on Saturday morning.

"There have been suggestions from some commentators, notably the Eastern Cape Bar Council, the Johannesburg Bar Council and the Cape Bar Council, that I lack the requisite experience for appointment to the position of Chief Justice," Mogoeng said, reading from his written submission to the JSC.

"I disagree. I have been a judge since 1997, serving first as a judge in the North West High Court, later as the Judge President of that Court, then as a judge of the Labour Appeal Court and finally a judge of the Constitutional Court. In total, I have been a judge for more than fourteen years.

"The only two judges on the Constitutional Court who have had a longer period of judicial service than me are Judges Froneman and Cameron.

"Apart from this I have been a Judge President for seven years, whereas none of my other colleagues at the Constitutional Court has been permanently appointed to lead a Division, small or big." Mogoeng said.


A "number of commentators" had raised concerns about his "approach" to gender-based violence.

"They have suggested that I am insensitive to gender-based violence.

In support of this assertion, they have relied on three cases involving rape against women where the sentences imposed by the trial court were reduced.

"They have compared these cases to a case involving indecent assault on a man where I expressed the view that the sentence imposed was too lenient, to suggest that I care more about men than I do about women.

"What the commentators have deliberately failed to draw to the attention of the Commission is that I have presided in at least seven other cases involving rape of women in which I imposed or confirmed substantial periods of imprisonment, ranging from 10 years to life imprisonment."

Mogoeng defended his attitude toward "sexual orientation".

"It has been alleged that I am homophobic. This allegation rests primarily on three grounds, namely - the fact that I dissented from paragraphs 181 to 189 in the CC Judgment in Le Roux v Dey - the absence of my reasons for dissenting and - the attitude of my church, Winners Chapel International, on homosexuality.

"The Constitution guarantees every South African freedom of religion, belief and opinion. In the exercise of this right, I have fully embraced the Christian faith.

"I did and do so mindful of the fact that our Constitution was not meant to benefit Christians to the exclusion of all other people who either belong to other faiths or do not subscribe to any religion at all."


Mogoeng said his church's opposition to homosexuality was not "something peculiar to it", nor did the church have as its core value, the attitude that "homosexuality should not be practiced, or is a deviant behaviour".

"It is based purely on the biblical injunction that a man should marry a woman and that there shall be a husband and a wife.

"The opposition to homosexuality is not therefore, a sine qua non for the existence of Winners Chapel International. The position it has adopted in this regard is similar to that of almost all Christian churches and religions, to which many other judges belong.

"It is unlike, for example, the Klu Klux Klan, whose core value is racial supremacy. The core values of our church relate to Biblical teachings and the church is not founded on homophobia. It is founded on the Holy Bible."

Mogoeng said he had been criticised for not recusing himself when his wife appeared before him on appeal in a matter that was set aside by the Supreme Court of Appeal.

"At the time there was no certainty in relation to whether or not a judicial officer's spouse or child could appear before that judicial officer.

"Whenever she appeared before me in appeals, I made it a point that counsel knew that she was my wife and left it to counsel to clear up the matter with their clients," he said.


"In the circumstances, the fact that I sat in a case in which my wife appeared does not show that I have no regard for judicial ethics." Mogoeng said there was nothing wrong his age of 50.

"When the Chief Justice of Namibia, Honourable Peter Shivute, was appointed, he was 41 years old.

"The Chief Justice of the United States of America, Honourable John Roberts, was 50 years old when he was nominated and appointed Chief Justice of that country.

"The President of the Federal Constitutional Court of Germany, Honourable Andreas Vokuhle, was 46-years-old when he was appointed to that position.

"The Chief Justice of New Zealand, Honourable Dame Sian Elias, was 50 years old when she was appointed to that position.

"I cite these examples to show that age is not a decisive factor. What matters is one's experience."

Mogoeng also defended his record on pushing for the death penalty while he was a prosecutor in Bophuthatswana.

"Somebody had to prosecute persons accused of the murders, robberies and gruesome rapes of innocent victims of violence, even during Apartheid. And I did. For that I have no regret, just as I am not apologetic for the bursary that the Bophuthatswana government assisted me with."

Death penalty

He said while he was employed as a High Court - then Supreme Court - prosecutor, his political standpoint was known by his boss, Advocate JJ Smit.

For that reason he was once allocated a political trial - the State v Ngobenza.

"When an urgent application for the stay of execution in the matter of before Theal Stewart CJ, my boss, Advocate JJ Smit SC, assigned the duty to oppose the application to me, and I did.

"At the time the death penalty had not yet been abolished. It was the law. The new Constitution did not exist. More importantly, Makwanyane had not yet been decided in favour of abolishing the death penalty.

"It may interest you to know that in 1992 or 1993, my former boss and I were on radio against each other. He presented argument for the retention of the death penalty and I was arguing for its abolition, based on what I had learnt from my Masters programme about the effect and cruelty of the death penalty.

"There is therefore no substance in the suggestion that I was some kind of an agent or puppet of the apartheid machinery," said Mogoeng.

  • Terminusest - 2011-09-03 13:34

    Nothing more than an ANC stool pigeon. Stop trying to make out like you have any kind of credibility, legal or otherwise. It is patently obvious to everybody that your appointment is exactly the same as the appointment of the head of the NPA - a pliable, boot-licking, ANC lackey that will tarnish the very laws he is meant to uphold. No doubt any attempt to hold the stealing parasites you bow to accountable for their multiple transgressions, will be squashed the moment you come to hear of it.

  • Benny66 - 2011-09-03 13:39

    It really does not matter what YOU think of yourself and of your qualifications and experience, the opposition to your appointment is too overwhelming and therefor your appointment will be detrimental to the judiciary! So it's best that you withdraw your availability; go and establish credibility amongst those who now appose you and try again in a few years time - you have age on your side.

  • Gatsheni - 2011-09-03 14:01

    The honourable Judge has spoken. There is absolutely nothing wrong with Jugde Mogoeng except the continuation of our prejudice/disgusting bigotry and utter racism (accompanied by ill advised feeling of supremacy & arrogance). Overall, a good choice that all of us must live with (whether we like or not).

      Babba x - 2011-09-03 15:13

      Indeed we are supreme!!!

      Kevin - 2011-09-03 16:34

      What about his judgements in child rape cases fool. They are despicable and render him unfit to be an officer of the court.

      OZNOB - 2011-09-04 07:23

      IT WOULD APPEAR THAT YOU ARE HIS BROTHER in that you are ill read , arrogant and prepared to go agaist the consensus without any form of supporting arguement to back your case

  • Charles N - 2011-09-03 15:55

    To be fair, Mogoeng's response: 1. Highlights and discredits the key points against him 2. Establishes his experience and background 3. Covers the political agenda Whilst I am against any form of judicial system being controlled by any political party, this person (assuming he maintains his political impartiality) sounds like the right guy for the job. The real issue that should be concerning South Africans is the ANC's ability to adjust the constitution to suit whatever their current desires may be. For example, JZ never said that there wouldn't be nationalisation. He only said that it would require a change to the constitution for it to happen. The media and the public then made the assumption that he said it wouldn't happen. I think that all South Africans should do themselves a favour and think about what these politicians are saying, word-for-word!

  • Chabi - 2011-09-03 16:56

    Mogoeng Mogoeng meaning "HOWL at him Howl at him" true to his name this was done, whether in praise or scorn... ultimately there is nothing wrong of JZ's choice... the bone of contention has always been the Media & those that have the means to influence public opinion were in favour of Moseneke.. from the on set this had nothing to do with the inadequacies of this man, he is after all a Judge & a judge president is after all a judge... The moral of the story: with only political power even the president of the country cannot do anything without interference from the section of our communities that still want apartheid in any of its guises... Victory or defeat for Mogoeng is nothing, what we have is a "shell" we just prefer to call it freedom.

  • Schalk - 2011-09-03 21:13

    I'll vote for the guy. Sounds like he has conviction

  • Steve Wonderboy - 2011-09-03 22:11

    The amount of flack this guy is getting just shows that there is way too many gay's and gay sympathizers in powerful positions out there. To be honest I know the difference between right and wrong and any thinking person does so too. Just because a bunch of fools try to convince the world that black is white does not make it so.

  • hannes.vantonder - 2011-09-04 00:39


  • manas - 2011-09-04 00:42

    Judge Mogoeng speaks well and answered even better. I wonder had he been given those questions on th day of interview what would have happened. Overall he is not suitable and he is extremely arrogant. You could almost get a sense of Malema-ego in him as if he had th job already. nterview what would have happened. Overall he is not suitable and he is extremely arrogant. You could almost get a sense of Malema-ego in him as if he had th job already.

  • leonard - 2011-09-04 07:32

    If the learned Mogoe was so suited to high office,why is the OUTCRY so loud.Dissent comes from all sections of society including Cosatu et al.On the basis of this,those in favour of Mogoe should go and sit in the corner and let the intelligent thinkers sort this one out.

  • Dries - 2011-09-04 08:09

    This guy is far better than most, mark my words. AND he is not in favour of the SA Communist Party shift from our present judiciary state status to a police state. The SAPD under Bheki-Whatever already assumes that the shift had been made. Is Mogoeng really a good judge for that position? No. But he is better than most.

      leonard - 2011-09-04 13:38

      @Dries If your assumption re Mogoe`s suitability to the post is correct,G-D help us all.See todays Sunday Times,Zapiro cartoon encapulates the situation better than any number of words.

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