The Christian faith of Constitutional Court Chief Justice nominee Justice Mogoeng has been widely criticised, questioned and ridiculed by media, politicians and gender groups during a week in which the Judicial Service Commission (JSC) reportedly endorsed his nomination.
Mogoeng, who was nominated for the top judicial post by President Jacob Zuma, has also been accused of being insensitive to rape victims, homophobic, insufficiently experienced for the job, and lacking the intellectual capacity required for the post.
Newspapers have made much of his statement, in reply to questioning at a public JSC hearing at the weekend, that he believed that God wanted him to accept the country’s top judicial post.
Opponents to Mogoeng’s nomination include the Democratic Alliance (DA) and Congress of South African Trade Unions (COSATU). The African Christian Democratic Party (ACDP) has welcomed the JSC support for Mogoeng.
“Their vote is an acceptance of Justice Mogoeng’s reply to his critics that he is neither homophobic nor insensitive to gender-based violence,” said ACDP president Kenneth Meshoe.
“We do not doubt Mogoeng’s commitment to judicial ethics and independence, and his upholding of the Constitution.”
Family Policy Institute director Errol Naidoo says in his weekly newsletter that the media’s “lynching” of Mogoeng was more about his Christian viewpoints, than about his suitability for the post of Chief Justice of the Constitutional Court.
“South Africa appears to following a similar path as Britain where a UK High Court recently ruled, ‘Christian convictions and principles no longer have a place in British law’. Anti-Christian discrimination appears to be the only acceptable prejudice in post-apartheid South Africa.
“Justice Mogoeng is a man of faith. His faith and Biblical views on homosexuality are shared with millions of South African’s. The media’s appalling vilification of Justice Mogoeng is a disturbing indication of its anti Christian bias.”
Much of the flak about Mogoeng’s faith focuses on his replies to questions by Inkatha Freedom Party MP Koos van der Merwe who was one of the JSC commissioners who interviewed him at the weekend.
“Do you think God wants you to be appointed chief justice?” Van der Merwe asked.
“I think so,” Mogoeng said.
“That creates problem for me,” Van der Merwe said. “If I vote against you what is God going to do to me?”
“That is between you and God, commissioner,” Mogoeng replied.
“I prayed and got a signal it was the right thing to do when I was approached,” Mogoeng said. “I am one of those believers who believe that there is God and God does speak.
“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.
“Without the God I depend on for strength, I am going to fail.”
During questioning by JSC commissioners Mogoeng also defended himself against questions on judgments he had given in rape cases.
He 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 after being asked about a reference he had made to “minor injuries” suffered by a young girl when she was raped.
“They vary in degrees, that is all I am trying to put across. Some even die in the process.”
During questioning he also defended his attitude towards “sexual orientation”.
“It has been alleged that I am homophobic. This allegation rests primarily on three grounds, namely: the fact that I dissented from paragraphs 181 to 189 in the CC Judgment in Le Roux v Dey; the absence of my reasons for dissenting; and the attitude of my church, Winners Chapel International, on homosexuality.
“The Constitution guarantees every South African freedom of religion, belief and opinion. In the exercise of this right, I have fully embraced the Christian faith.
“I did and do so mindful of the fact that our Constitution was not meant to benefit Christians to the exclusion of all other people who either belong to other faiths or do not subscribe to any religion at all.”
Mogoeng said his church’s opposition to homosexuality was not “something peculiar to it”, nor did the church have as its core value, the attitude that “homosexuality should not be practised, or is a deviant behaviour”.
“It is based purely on the biblical injunction that a man should marry a woman and that there shall be a husband and a wife.
A freelance writer and novelist, Fiona Snykers, writing in the Thought Leader reader blog section of the Mail & Guardian online, takes a different position to the majority of media voices that attack Mogoeng’s character and track record. She writes that despite being a lifelong feminist, she believes that Mogoeng has been “extremely unfairly treated by the media and various interest groups”.
She says the media criticism of his handling of three rape cases has ignored the context of the court’s responsibility to evaluate each case on its merits.
“But the fact remains that the media has chosen to concentrate on the three sexual assault cases in which Justice Mogoeng reduced the sentence, rather than the seven in which he imposed heavy sentences.
One has to wonder where the bias really lies.”
Regarding the campaign against Mogoeng for his Christian views on homosexuality, Snykers writes: “On the question of Justice Mogoeng’s membership of a church that openly disapproves of homosexuality — if we were to apply that logic we should also disqualify many observant Jews, Muslims and Christians from judicial office, because every one of those faiths is arguably hostile to homosexuality. The only people left to hold judicial office would be the bubbly-and-caviar atheists, and God, most sincerely, preserve us from that fate.”
According to media reports the JSC panel voted 16-7 in favour of Zuma’s nomination of Mogoeng.