Bar councils speak out against Mogoeng

Civil opposition grows to president's choice for country's top judicial post.

The public outcry over the nomination of Justice Mogoeng Mogoeng as the country's next chief justice is growing.

The Cape Bar Council is the latest body to shoot down President Jacob Zuma's nominee.

It joins a range of other bar councils and civil society organisations which have made submissions challenging the nomination, announced by Zuma two weeks ago.

They include the Sisonke Gender Justice Network, the Tshwaranang Legal Advocacy Centre, the Treatment Action Campaign, the Women's Legal Centre and public interest organisation Section 27.

According to a report on the News24 website yesterday, the Johannesburg Bar Council has also raised objections.

In its written submission to the Judicial Service Commission (JSC), the Cape Bar Council says it is "at a loss to understand" how Justice Mogoeng could be a suitable candidate to succeed retired Chief Justice Sandile Ngcobo.

The Cape Bar says Justice Mogoeng's controversial judgments relating to domestic and sexual violence, which he delivered during his time on the bench of the Bophuthatswana High Court, and his short stint in the Constitutional Court, made him unfit for the job.

"The (Cape Bar), is ... at a loss to understand how a 51-year-old judge with less than two years' experience on the Constitutional Court and less than a handful of truly significant judgments, could be preferred as chief justice to the 63-year-old Deputy Chief Justice (Dikgang Moseneke), who has served on the Constitutional Court since 2002, held the office of Deputy Chief Justice since mid 2005, and authored a string of weighty judgments during his nine years on the court," the council writes.

"It is unclear how Justice Mogoeng could have been preferred to all the more senior Constitutional Court justices, or a female justice such as Justice (Sisi) Khampepe who was appointed to the Constitutional Court at the same time as Justice Mogoeng."

The Cape Bar also expresses concern about Justice Mogoeng's lack of experience in civil and commercial litigation.

"The lack of civil or commercial (judgments) is particularly troubling, given the proposal to make the Constitutional Court the highest court in all matters," the bar council writes.

Mbuyiselo Botha of the Sisonke Gender Justice Network said the organisation was deeply disturbed by Justice Mogoeng's judgments on issues such as marital rape and on the question of homosexuality.

"Our view is, how will women in this country - already the justice system has failed them - feel, standing in front of him?

"He will not inspire confidence.

"His judgments raised a homophobic attitude and a very patriarchal approach," Botha said.

But Justice Mogoeng has, surprisingly, received strong backing from the ANC Women's League.

League president and Minister of Basic Education Angie Motshekga described the outcry around Justice Mogoeng's nomination as hypocritical and dishonest.

"I don't see anything wrong with (Justice) Mogoeng.

"I just think the outcry is very hypocritical, I think it's not honest," she said.

Motshekga said the women's league, which had failed to lobby successfully for a female chief justice, did not have a problem with Justice Mogoeng's personal outlook on life, including his religious beliefs.

"We all have our own world views. I could have my world view about gays but if I have world views about gays, it can't make me progressive or anything ... what's wrong about being Christian?" she said.

The JSC will hold public hearings on Saturday to probe Justice Mogoeng's fitness to hold office.