Mogoeng Interview

Kate Lefko-Everett

Amidst all the anticipation and interest in the disciplinary hearing of ANC Youth League president Julius Malema this week, which according to a press release this morning is set to continue on Monday, two very important things are happening in Cape Town: first, deliberations continue in Parliament over the Protection of Information Bill. For more information, have a look at this analysis in today’s Mail & Guardian, or visit the Right2Know Campaign’s website. You can also receive live updates on Twitter via @r2kcampaign, and search (or post) by #SecrecyBill.

Then, tomorrow morning the Judicial Service Commission (JSC) will conduct an interview with Mogoeng Mogoeng, who was nominated earlier this month by President Zuma for the position of Chief Justice, which is open to members of the public.

A number of civil society organisations and others have objected to Mogoeng’s nomination, particularly given his past judgements in cases of domestic and sexual abuse, marital rape, gender equality and LGBTI rights. Sisonke Msimang, chair of Sonke Gender Justice Network and Executive Director of the Open Society Initiative for Southern Africa, has very insightful analytical piece in the Business Day today, while Ilham Rawoot has reviewed Mogoeng’s rulings in cases of child abuse and rape.

Notably, Mogoeng also took a dissenting position in the case of The Citizen v McBride, the outcome of which was supported by the South African Coalition for Transitional Justice (SACTJ). On his blog Constitutionally Speaking, Professor Pierre de Vos explained Mogoeng’s position as follows:

‘In the case of The Citizen v McBride in a judgment handed down earlier this year by the Constitutional Court, justice Mogoeng dissented from the majority and provided reasons for this dissent which suggest that he has a curious understanding of the way in which freedom of expression operates in a constitutional democracy. In the context of a discussion of the effects of the granting of amnesty by the Truth and Reconciliation Commission (TRC) to those who had committed gross violations of human rights during the apartheid years, justice Mogoeng stated that it was impermissible to use truthful facts to insult, demonise and run down the dignity of self-confessed human rights violators.

Invoking “traditional values and moral standards” — something that the justices on the ultra-conservative wing of the US Supreme Court might do — the judgment seemed to suggest that it was inappropriate in a constitutional democracy to engage in debate that would affront the dignity of any individual. Even in cases where the impugned comments are based on incontrovertible facts (“X is a murderer hence X is a bad person”), would seemingly offend the honourable judge.

As per section 174 of the Constitution, the ‘President as head of the national executive, after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme Court of Appeal’.

As such, there is little opportunity for public participation in this process, except indirectly through expressions of support or opposition to representatives within Parliament. However, according to the the Lesbian and Gay Equality Project, which has made a submission to the JSC together with Sonke, TAC and Section 27, members of the public can observe the interview as follows:

DATE : Saturday, 3rd September 2011
TIME : 09h15 for 09h45
VENUE : Westin Hotel, Lower Long Street, Convention Square next to the Cape Town International Convention Centre, Cape Town

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