South African Chief Justice Mogoeng Mogoeng Threatens Freedom of Speech

“Every South African who is aggrieved about something has the right to say what he wants ..that’s also politicians… but I will not hesitate to confront anybody who actually does something that poses a threat to the independence of the judiciary,” 

By Melanie Nathan, August 29, 2012.

The socially conservative Chief Justice of the South African Constitutional Court, Mogoeng Mogoeng was appointed amidst controversy, and now he is lashing out with a warning to press and politicians, while slamming his fellow South African’s on the judiciary with his message of no confidence in their abilities to thwart press criticism.

According to the Mail and Guardian Chief Justice Mogoeng Mogoeng noted in no uncertain terms that:

“anybody who went beyond talk or criticism to actually threaten the judiciary’s independence would definitely be confronted, Chief Justice Mogoeng Mogoeng told a meeting of editors in Durban on Saturday.” But what exactly is the Justice referring to and what does he really mean?

He was asked at the meeting if, given statements by some politicians that the judiciary was being used to undermine the government, he felt there were any threats, now or potentially, to the independence of judges.

“I will not respond every time somebody says something… but if that person does something, I’ll rise up to confront him.”

Then the real threat by the Chief Justice:

“But if we ever get to the point where our judges are pressured never to go a particular way in decisions for fear of threats, or death threats, or cartoons, whatever… Then the judiciary is under threat.”

One must wonder where the seemingly insecure Justice conceived this ides that judges could in fact be so threatened? Why would any South African  judge shirk his/her duty and rule on a case or issue a judgment that has been influenced? I always had faith in the South African judiciary and its independence.   To my way of thinking this is a threat by the Chief Justice to the South African community – a threat to freedom of speech and an attempt by him to silence the press.  How does he expect, if he is indeed independent, to go after these situations he mentions?

There is no practical application for what he says. Is he suggesting that he can connect the outcome of a case before a member of the judiciary to a cartoon about that member?   How can judges and magistrates be pressured by cartoons and death threats? Surely if that were the case it is the judicial officer who should be fired for inability to perform in an unbiased and uninfluenced fashion?   On what basis could the press be silenced for so called “influence” of a judge. The judge simply should NOT be influenced and if he/she is then he/she should lose their job.

If anyone should know this it is our esteemed Chief Justice and it is for this reason that I assert that Chief Justice Mogoeng Mogoeng  is threatening South Africans’  freedom of speech and himself falling into the trap of smudging the boundaries of the Judicial systems independence!  After all what is his plan? Is HE  going to have President Zuma, the legislative branch of Government or the administrative branch make laws silencing press or ordering police to arrest journalists?

Of course the law will take care of those making death threats. That ought to happen without Mogoeng having to weigh in in this fashion – such would be a matter of normal police investigation and action. And to assert cartoons and press critique in the same sentence as death threats baffles me!

Utilizing my ‘blogger’s license,’  I have come come up with some assumptions.  I  assert that the Chief Justice is still recovering from the press-beating he took as a social conservative, when President Zuma decided to appoint him to a bench that will preside over one of the most socially progressive Constitutions in he world. I believe that while he pretends to be “cool” and “healthy” in his response to the criticism directed at him, he in fact is suffering from a form of post-traumatic-press-criticism-syndrome.  And as will be noted from his further remarks below, he is going all out to mask his affliction.

In the meantime, as a reminder, here is what I wrote a year ago, back in August 2011, in an article entitled ‘South African Constitutional Court New Chief Justice Belongs to Anti-Gay Mega Church.’

Critique comes as some believe others are more qualified; 0ne wonders why the ANC President would choose Mogoeng: Zuma, once himself accused of rape, seems either to have failed to do his homework or is simply not concerned with upholding the Constitution in its current form, risking precedent under leadership of a Judge who has already provided rulings that reflect views on gender and rape that are disdainful of the country’s constitution.

The  UK Guardian: discusses  some of Mogoeng’s rulings and which include statements that are incongruous with the intent of the SA Constitution. Read more …. http://www.guardian.co.uk/world/2011/aug/25/south-africa-jacob-zuma-choice-top-judge

In one appeal, heard in the Bophuthatswana High Court (subsequently renamed the North West High Court) in Mafikeng in 2007, Mogoeng suspended a convicted rapist’s two-year jail sentence on the grounds that he had been “aroused” by his wife and had used “minimum force”.  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 behavior.”

“Louise Olivier, the law program manager at the Open Society Initiative for Southern Africa, said: “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.”

To add to the bewilderment of the SA Civil rights groups, 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.”

In his comments the Chief Justice commended (somewhat of a detectable ego preserving tactic – my opinion) the press for their criticism of him asserting that it made him feel powerful (my interpretation) a but then went on to note his caveat:

“I have the capacity to absorb just about anything, but spare the magistrates and the judges … We do not need judicial officers that decide cases based on what they have seen happen to colleagues in terms of media criticism,” Mogoeng said, adding that it was critical the media take care it got the facts correct”

Chief Justice Mogoeng Mogoeng seems to hold himself in a category all of its own.   Clearly this Chief Justice has no faith in the other members of the South African judiciary. His (I assert feigned) power to deflect criticism is on a self-placed pedestal, implying that his fellow members of the judiciary do not have this ability and thus an equal ability to perform their duties, uninfluenced.

It is a sad day that the Chief Justice of the South African Constitutional Court has to resort to such undignified commentary. I am more convinced than ever that President Zuma’s continued appointments reflect the nature of a conservative and traditionalist swerve by the ANC, one that was never intended by the promise of *Madiba’s South Africa.

(*Madiba – the fond name used for former South African President Nelson Mandela, who delivered South Africa from the rule of Apartheid.)

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