Majority of JSC members approve Mogoeng

Justice Mogoeng Mogoeng received an overwhelming nod from the Judicial Service Commission yesterday when its members endorsed him to become South Africa's next chief justice.

Sixteen of the 23 commissioners voted in favour of Mogoeng, who was controversially nominated by President Jacob Zuma as former Chief Justice Sandile Ngcobo's successor.

"It was a big majority, 16 to seven in favour of Mogoeng," said a JSC commissioner, who spoke on condition of anonymity.

The outcome could not be confirmed with JSC spokesman Dumisa Ntsebeza last night.

Although Justice Mogoeng faced tough questions over two days of interviews this weekend, it now is just a matter of time before he is appointed as the country's top judge.

The JSC will now officially inform Zuma that it has endorsed his nomination, after which Justice Mogoeng will be sworn in.

The justice told the commission yesterday that God wanted him to be the next chief justice and president of the Constitutional Court.

This was in answer to a question from IFP member of parliament and JSC commissioner Koos van der Merwe, who asked him whether it was true that he had told other Constitutional Court justices that God wanted him to be the next chief justice.

"When a position comes like this one, I wouldn't take it unless I had prayed and satisfied myself that God wants me to take it. I got a signal that it was the right thing to do," said Justice Mogoeng.

"You think God wants you to be the chief justice?" asked Van der Merwe, to which Mogoeng replied: "Yes, I think so."

The commission appeared divided yesterday over whether Justice Mogoeng was a villain or victim.

Gauteng Judge President Bernard Ngoepe, senior counsel Ntsebeza and Justice Minister Jeff Radebe defended Justice Mogoeng, whereas Van der Merwe and commissioner Izak Smuts seemed set on grilling him.

Justice Mogoeng said several times that he was the victim of an "untold, one-sided, concerted, well-orchestrated" campaign to portray him as unsuitable for the job.

He said other judges would not have "survived the pressure" of being criticised in the media.

Harsh criticism was levelled at Justice Mogoeng - who is also a pastor of the Winners Chapel Christian church, which reportedly believes that gay people can be "cured" of their sexual orientation - immediately after Zuma announced that he had nominated him to be the new chief justice.

Civil society groups circulated some of Justice Mogoeng's judgments, including one in which he said a two-year sentence was too harsh for a man who had tied a woman to his car and driven off, dragging her on the ground.

In another controversial case, Justice Mogoeng reduced the sentence of a husband who had raped his wife because the rapist and his victim had not been strangers.

Cosatu said on Saturday that the justice's judgments "showed a mind-set and values that were inconsistent with the Constitution".

Smuts asked Mogoeng yesterday why he had relied on an apartheid-era ruling to justify a light sentence in a marital rape case over which he presided in 2004, instead of a later ruling that said rape within families was no less reprehensible than rape by strangers.

Mogoeng's answer was first that busy judges "do not always come across" all prior rulings, and that he had not done an "exhaustive search". But he then complained that those who had circulated his rape judgments were pouring all their energies into portraying him as "a dangerous man".

Deputy Chief Justice and JSC chair Dikgang Moseneke dismissed this suggestion, saying to Justice Mogoeng: "You are really saying to us that you did not look at the law properly."

But Judge President Ngoepe came to Justice Mogoeng's defence. "It is unprecedented that an interview is being beamed live to the nation during which a sitting judge is accused of being homophobic and having a gender bias," said Ngoepe, pointing out that the justice had been supported publicly by the Black Lawyers' Association, the KwaZulu-Natal and North West bar councils and high-profile lawyers.

On Saturday, Justice Moseneke, whom many believe should have been given the top job, was involved in a heated exchange with Mogoeng, telling him: ''If you listen, you might be able to answer.''

Justice Mogoeng retorted: ''You don't have to be sarcastic, Sir.''

He was later forced to apologise.

Yesterday, Ntsebeza, a veteran human rights lawyer and Black Consciousness activist, said the General Council of the Bar had supported Justice Mogoeng in 2009 when he had applied to be a Constitutional Court judge, describing his judgments as "sound".

Ntsebeza cautioned that "interest groups" were pitting justices Mogoeng and Moseneke against each other for the position.

Van der Merwe criticised Justice Mogoeng's track record, saying he had never presided over any high-profile cases or published any journal articles.

The justice replied that his aim was not to write articles in obscure legal publications but to be a leader who solved ordinary people's "problems with delayed judgments, postponements, unacceptable treatment by the courts and expensive litigation".