Judge v Judge: Mogoeng and Moseneke

04 September 2011 - 03:13 By CAIPHUS KGOSANA

Tension between President Jacob Zuma's candidate for chief justice, Justice Mogoeng Mogoeng, and Justice Dikgang Moseneke, the man many believe should have been chosen, broke into the open during a Judcial Service Commission hearing yesterday.

Read Justice Mogoeng response

Seated opposite each other in the Cape Town International Convention Centre, Mogoeng and Moseneke locked horns over key issues such as the former's now infamous judgments on marital and child rape, a case from which he refused to recuse himself when his wife was prosecuting, and the reason for Mogoeng's nomination by Zuma.

The exchange between the two Constitutional Court judges started shortly after Mogoeng had put up a spirited, 47-page defence of his track record as a prosecutor and a judge.

Moseneke drew first blood by suggesting that Mogoeng should not read the entire presentation in order to save time.

"I'm aware of that response. I have it in my possession. You are on page nine of 47 pages. I can see from the document. Do you propose to read all of this word for word or are you going to give us the highlights of your responses?" Moseneke asked.

Minister of Justice Jeff Radebe went to Mogoeng's defence, insisting that he be allowed to read the whole document, as he was responding to many of the issues for which he had been criticised since his nomination.

"He must be given an opportunity. The vicious mobilisation against the president's nominee, Justice Mogoeng, is quite unprecedented. He needs to be given an opportunity to ventilate and express his views," said Radebe.

Mogoeng and Moseneke were to take each other on later, when Moseneke - who is currently acting as chief justice following the retirement of Justice Sandile Ngcobo - asked if Mogoeng believed that he had the intellectual capacity to provide leadership to the court.

"I have no doubt about my own intellectual depth," Mogoeng said.

Mogoeng was being interviewed in a special sitting of the JSC to assess his suitability as chief justice.

Moseneke, who chaired the interview, also asked Mogoeng why he thought he had been nominated.

"There are many other people who have had extended exposure in the judiciary. Why do you think you are the president's nominee?" he asked.

Mogoeng replied that the constitution gave the president the prerogative to decide on who he thought was the best candidate.

But the most vicious of the exchanges was when Mogoeng was explaining his decisions not to provide reasons for dissenting in a case involving a ruling on homosexuality.

"If you listen, you might be able to answer," said Moseneke.

"You don't have to be sarcastic, sir," retorted Mogoeng.

Inkatha Freedom Party MP Koos van der Merwe said in his 15 years as a commissioner on the JSC he had never seen a candidate behave that way.

Van der Merwe asked Mogoeng whether he had a "short temper" after his outburst.

"It points to me that you are not suitable to be the number one lawyer in the country.

"This is the first time in 15 years that an applicant is so arrogant that he has done what you have done now," he said.

Mogoeng then apologised.

"Deputy chief justice, I did the wrong thing," he said. "I apologise."

Commissioner Krish Govender challenged Mogoeng over a reference he had made to "minor injuries" suffered by a young girl when she was raped.

"To me, you can't have something as a minor injury when it comes to rape," Govender said.

"It can not be diminished by judging amount of injury caused to the woman."

Mogoeng said he had dealt with many rape cases and that there were "people who are so brutal to women and children, they literally tear them apart mercilessly".

"I have seen worst, you can imagine, in many cases," he said.

"They vary in degrees, that is all I am trying to put across. Some even die in the process."

Of the infamous Dey case in the Constitutional Court, Mogoeng said he had "erred" by not providing reasons for his dissent.

"I did not have the time to reflect properly on the matter," he said.

Mogoeng said he had not failed to give reasons because he had anything against gay people.

He reiterated he was committed to the constitution, but, questioned further, he conceded that he should not have dissented on the judgment.

Commissioner Nick Koornhof told Mogoeng that if he became chief justice, he would need "strength" to stand up to the executive when it was necessary.

"For that, you will need experience," he said. "I think you should have been a few years older, but, nevertheless, if I look at your questionnaire, you don't have any publications in the field of law. If we compare you with fellow judges for the same time, they will have far more reported cases than you."

Commissioner Engela Schlemmer said she had an "uneasy feeling" about Mogoeng's experience.

"Maybe you lack the experience in the judiciary to become chief justice," she said.

"Many other judges have written more judgements that have been published. We don't have anything to look at to see what your judicial experience amounts to. I don't see anything on paper that can convince me otherwise."

Mogoeng said he had been a judge for 14 years and whether others agreed with his judgments was "neither here nor there".

"I am saying, in a nutshell, I have judicial experience.

"I have been a judge writing judgments for more than 14 years."

In a tacit sideswipe at Moseneke, Mogoeng even alluded to his colleagues in the judiciary as not being so desperate to become chief justice that they could hinder the functioning of the judiciary as a whole. - Additional reporting by Sapa