Civil rights groups in South Africa have condemned Jacob Zuma‘s choice for the role of the country’s top judge, arguing that the nominee’s views on gender equality and marital rape “make a mockery” of the country’s constitutional rights.
Justice Mogoeng Mogoeng was a surprise pick for the position of chief justice, with many critics arguing that he lacked the experience and qualifications of rival candidates. His apparently socially conservative views have also come under scrutiny because, as the head of South Africa‘s constitutional court, he will be responsible for upholding one of the most progressive constitutions in the world.
Documents seen by the Guardian detail appeal cases at the superior court over the past decade in which Mogoeng’s judgments are being questioned by gender and legal activists.
One was a 2001 appeal by a man named Mathibe who tied a woman to the bumper of his car and “drove that vehicle at a fairly high speed over a distance of about 50 metres”.
Mogoeng ruled that the two-year sentence imposed was “too harsh by any standards”. Among his reasons were that the accused had been “provoked” and “the complainant did not sustain serious injuries”.
Three years later a Mr Moipolai appealed against his sentence for the rape of his common law wife. She was eight months pregnant, and another person was present during the attack. Court records show Mogoeng upheld the conviction but reduced the 10-year sentence, meaning half was suspended for five years.
Marital rape is a crime in South Africa, but Mogoeng felt there were “mitigating factors”. He listed these as: The appellant was a first offender; the appellant and complainant were no strangers to each other (they were lovers) and said: “But for the presence of [another person], the appellant and complainant would probably have had consensual intercourse.”
Another case was the 2007 appeal of a man named Modise, who had been jailed for five years for attempted rape. He and his victim were undergoing a divorce and had not shared the same bed for almost a year.
One night, Modise went to the marital bedroom and later the complainant went to bed, where the incident took place.
Mogoeng was among the judges who suspended the man’s sentence, stating: “The desire to make love to his wife must have overwhelmed him, hence his somewhat violent behaviour. He, however, neither smacked, punched nor kicked her. Minimum force, so to speak, was resorted to in order to subdue the complainant’s resistance.”
The judges added: “The case is not comparable to a case where a lady comes across a stranger on the street who suddenly attempts to rape her.”
The documents – which also raised concerns over Mogoeng’s attitude to sexual orientation – are likely to intensify pressure on Zuma, who was cleared of a rape charge before his election as president, to rethink the nomination.
Louise Olivier, the law programme manager at the Open Society Initiative for Southern Africa, said: “The South African constitutional court has been regarded by jurists both internationally and on the continent as a model, socially and legally progressive and providing jurisprudence that protects and promotes human rights.
“To appoint judge Mogoeng Mogoeng as its chief justice makes a mockery of the substantial constitutional advances made by the court. His previous judgments on gender equality and marital rape indicate that he has scant regard for legal protections that most South Africans hold dear.”
Olivier added: “It also shows either that President Zuma’s legal counsel have not done their homework in finding these judgments, as it is unlikely that after reading them they would have advised him to recommend Mogoeng’s appointment, or his views on women’s rights and marital rape find resonance within the presidency.”
South African media have reported that Mogoeng belongs to the Winners Chapel International church, which preaches that homosexuality is a perversion that can be cured. The City Press newspaper said Mogoeng is a member of the Johannesburg branch and provides “pastoral services”, such as house visits, but does not preach.
There has already been a strong backlash against Zuma’s decision to overlook the deputy chief justice Dikgang Moseneke, widely seen as a formidable legal mind.
Pierre de Vos, an expert in constitutional law, said: “It is as if president Zuma, acting like a spoilt child who could not get his way with the extension of the term of office of the outgoing chief justice because he relied on a clearly unconstitutional provision to do so, is now trying to get back at critics by indicating a wish to appoint one of the less suitable candidates to that post.”