Civil rights groups concerned about Mogoeng judgments

A number of civil rights groups plan to object to President Jacob Zuma's nomination of Mogoeng Mogoeng as chief justice based on previous judgments relating to violence against women.

The public interest organisation, Section 27, planned to lodge an objection on Friday on behalf of the Treatment Action Campaign, the Lesbian and Gay Equality Project and the Sonke Gender Justice Network, the Mail&Guardian reported on Friday.

The Tshwaranang Legal Advocacy Centre and the Women's Legal Centre also planned to object.

Their concerns were based on two judgments handed down by Mogoeng.

One involved a woman who was throttled by her husband and another involved a pregnant woman who was raped by her husband.

In an appeal heard in the Bophuthatswana High Court (renamed the North West High Court in Mahikeng) 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.

The man had returned to his house one night after moving into his parents' home and had "throttled" his wife and pinned her to the bed to have sexual intercourse with her.

Mogoeng, who was promoted to judge at the Constitutional Court in 2009, found that although guilty, no real injuries had resulted from the throttling.

"The desire to make love to his wife must have overwhelmed him, hence his somewhat violent behaviour," he said, in explanation for suspending the rapist's sentence for two years.

In the Bophuthatswana High Court in 2004, a man was initially sentenced to 10 years' imprisonment for raping his eight-months pregnant wife in front of another person.

Mogoeng upheld the conviction but reduced the sentence to five years' imprisonment on the grounds that the nature of their relationship rendered their intercourse incapable of being legally categorised as rape.

The publication reported legal experts as saying that at that time, marital rape was deemed illegal under the Family Violence Act of 1993.

Mogoeng said the couple had been "lovers for seven years" and that "the assault was not serious".

Last week, City Press reported on a 2001 judgment relating to a man who tied a woman to the back of his car and dragged her along a gravel road for 50m and took her to hospital only the next day. He was sentenced to two years for assault.

Mogoeng found that the complainant had "provoked" the accused and that she had not suffered serious injuries. Ruling that the sentence was "too severe", he offered the option of a R4 000 fine.

Section 27 said: "It is our firm view that Justice Mogoeng is not suitable for the position of chief justice of South Africa.

"In the cases of gender-based violence, his attitude is quite clear."

The submissions would be made to the Judicial Service Commission, which Zuma has to consult, along with political parties, before appointing Mogoeng.