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The media witchhunt of Justice Mogoeng cannot be justified

By Fiona Snyckers

Some recent attempts by the media to condemn Constitutional Court Justice Mogoeng Mogoeng on the basis of certain carefully excerpted snippets from his judgments have placed me in the parlous position of seeming to side with those who would go easy on the perpetrators of violence against women and children.

As a lifelong feminist, I find this a difficult position to sustain, but nevertheless cannot sway from my belief that Justice Mogoeng has been extremely unfairly treated by the media and various interest groups who have taken it upon themselves to comment on his nomination for the position of chief justice.

Justice Mogoeng’s judgments in the three cases of sexual abuse that have been cited in the media need to be understood within the context of the criminal justice system in South Africa. On the one hand, we have the feminist agenda, which seeks to advance and protect the rights of women and children, and which I support fully and without reservation.

On the other hand, we have the unique set of facts in every case of sexual abuse, which judges are obliged to consider first in attempting to determine the guilt or innocence of the accused, and then in deciding on an appropriate sentence.

The two should not be confused. The feminist agenda holds that all rape is traumatic to the victim. I would wholeheartedly agree with this. But the judge presiding over a criminal trial is sometimes obliged to determine precisely how traumatic a particular rape was to a particular victim, in comparison to other rapes of other victims. In doing so, he or she may consider whether the victim was injured or not, and if so, how severely. This can be determined by the presence or absence of bruises or lacerations on the victim’s body, and by sundry other medical evidence.

The judge also sometimes has the unenviable task of determining precisely how traumatised the victim was by the rape, when comparing cases for the purposes of deciding on an appropriate sentence. This may include considering testimony about the victim’s demeanour after the incident, and other similar evidence.

All rape cases are not created equal, and neither are all cases of child abuse. We do not impose a single blanket sentence in South Africa for all cases of sexual violence. Some feminists may disagree with me, but I do not believe that we should. I don’t believe, for instance, that the sixteen year-old boy who has sex with his fifteen year-old girlfriend should receive the same sentence as the men who repeatedly gang-rape a woman and beat her to a bloody pulp.

And between these two extreme examples of the same crime lie all the other cases of sexual violence, with their own unique sets of facts, that judges have to sift through in determining an appropriate sentence.

So while Justice Mogoeng’s statement that a fourteen year-old girl did not appear distressed and was not limping after a rape may grate on the ear of the sensitive layman, the fact remains that he was doing his conscientious duty as a judge in taking these facts into consideration.

It has also been declared outrageous by the media that Justice Mogoeng took the perpetrator’s personal circumstances and position in the community into consideration when deciding on sentence. Again, if you believe this, you have a problem with the law of South Africa, not with Justice Mogoeng. Because judges are legally obliged to consider whether a person is a first-time offender or not, whether he could potentially be rehabilitated, and whether he has dependants who are relying on him for their sole support.

Second-guessing the judgments of a trial judge is a fool’s errand that is best left to the courts of appeal. As someone who was not present in court, observing the witnesses’ demeanour and hearing all the evidence, I am in a very poor position to decide whether the judge’s decision was fair or not, and so are you. We weren’t there and we don’t know what happened.

Furthermore, the fact that a judge has from time to time reduced an offender’s sentence should be taken as evidence of his capacity for compassion, rather than used as a tool to demonise him. The liberal agenda is better served by a judge who is flexible in his application of his sentencing powers than by a “flog ’em and hang ’em” hawk of the law-and-order variety.

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.

Justice Mogoeng has also been accused of lacking the necessary experience to hold the office of chief justice. But, as he points out in his submission to the Judicial Service Commission, there are only two justices of the Constitutional Court with more judicial experience than him, and he remains the only justice with experience — seven years’ worth of it, moreover — as a judge president.

It is also nonsensical to cavil at his age, 50, when history is full of chief justices all over the world who ascended to the position at an even younger age.

It is difficult, in fact, to fathom precisely why there is such a hateful campaign against Justice Mogoeng. Is it because he is not, and never will be, Dikgang Moseneke — that darling of the white media? Is it because there are better candidates for the job? There undoubtedly are, and if rumour is to be believed, five of them turned down the job before Justice Mogoeng was approached.

But even if Justice Mogoeng is not the best candidate for chief justice, he remains an apparently conscientious and well-intentioned man.

The fact that he served as a prosecutor under Lucas Mangope in Bophuthatswana makes him no different from judges who served in the apartheid army, or judges who handed down death sentences under the apartheid regime.

There is not a single judge in all the land who could stand up to having all of his or her judgments scrutinised and selectively quoted from for the purposes of making him or her look foolish or biased.

The law is a dirty business, and judges are forced to wade through muck every day, particularly when they are presiding over criminal trials.

Every judge who has heard a number of rape cases has been obliged to consider issues that make a feminist like me wince. 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.

Fiona Snyckers is a novelist and freelance journalist. She lives in Johannesburg.

  • karien

    Granted that progressive camp criticism of Mogoeng might edge too far in one direction, I for one still think that he is of unimpressive intellect, and that his alignment to a radically rightwing church is problematic. When a country with the kind of constitution that we have ~ and the paradoxical scourge of rape and socalled corrective rape, appoints a person as chief justice who is clearly in the pocket of its sexist, traditionalist president, and a person who clearly holds rightwing beliefs about homosexuality, we have much to worry about. Did we forget the terrible oppression and discrimination of our past? Are we not a tolerant society? Well, clearly not.

  • Michael Mokotong


    You write beautifully, I was happy to see you are a novelist when I reached the end of this piece. I need a bookshop now.

  • goolam.dawood

    Its quite obvious to me that the attack on Justice Mogoeng is nothing more than an anti-Zuma and anti-ANC political crusade. The guilty parties include the DA, the Media and interest groups who garner public favour and resources. Its actually deplorable that people would go so far as to demand a change in the constitution with thinly veilied arguments to mask the prejudice. Thank you for making the obvious statements that few are being troubled to say.

  • SuyaKhula

    Fiona misses the most crucial elements of the #JSC Justice Mogoeng saga and seemingly fails to take note of the future of all in the long run!

    The issue most centrally revolves around the political advantage that a certain agenda is pursuing with a vengeance and the easing of the way in which to attain it as well as the fact that it is not desirable to have a very lengthy period of service by any single person, born out by the examples all over the continent so far!
    This is most definitely NOT a racial ‘black vs white’ matter.
    It is on the ‘cons’ side, an expected ultra reaction against Africa’s perceived offenders (colonialism by western) in the face of WORSE COLONIALISM still ongoing and far worse perpetrated by eastern (& middle eastern) but which is never voiced.
    Will J Mogoeng be a lackey lap dog to political coercion and worse, will he continue to reinvent the wheel with in Chris Kanyane’s words ” There is a price to be paid for silence and cowardice in the face of oppression and injustice.

    Watch your step: the quickest way to shed your colonial mentality is to restore African Philosophy to the pedestal it deserves not just in your books but in your minds and way of life”.


  • pam

    “Fiona Snyckers is a novelist and freelance journalist.” And clearly not an attorney, advocate or person with any legal experience. It is not the media who are criticizing Mogeong but various public interest groups,the Bar as well as legal academics(internationally and locally). Their concerns are legally, morally and ethically valid.I, as an attorney have actually read the cases and judgements of Mogeong, and am able to fully understand the consequences of such a judge heading the CC. It leaves me cold with fear and disillusionment. Perhaps you should leave this discussion to those who actually know what they are talking about.

  • Witness

    Fiona, you are defending the indefensible. Mogoeng is not the best legal mind in the country and his interview proved just that.

  • Tessa Strydom

    In the last few days with all the negative reporting on the Justice Moegeng, I had a strong sense that something was “off”. Not for any political reason, but simply because I could not believe that our justice system could be that ineffective and unaccountable. I read this article, and it made a lot of sense to me. Thank you

  • Thobekani Khoza

    your objectivity is much appreciated but I’m still not at ease

    1. Sentencing on criminal offenses then needs to somehow have their structures readjusted (if any) in accordance such facts [and other circumstances] to higher minimums once the decision of guilt has been reached.
    2. Popular religions are know to have potential to be oppressive in that they can be gender insensitive, tribalist, patriarchal, sometimes depending on some interpretations racist and in some instances even divisive in the way that they stratify social thinking – some criminals have committed terrible offenses to other people in the name of religion and have been found to have been psychopathic, my here being that human beings have a tendency of upholding their values and principles based on their faiths above everything else and its one’s judgement status that we are entitled to test here.
    3. Does the experience in the actual constitutional court matter if one had to make comparison?

    And this is worrying to me

    Thats my 5c

  • Adrian, Photojournalist | Media Analyst

    This piece has certainly sparked a healthy, protracted debate on several issues relevant to Moegeng’s appointment. Is this not what democracy is all about: citizens actively engaging on the many issues of importance within our country.

    With reference to how the media have covered Moegeng’s appointment, a thorough content-analysis study for example, may reveal much added insight into this complex topic of discussion. This is not always a possibility however, but it’s safe to assume that the complexities of the media’s portrayal of the Moegeng Moegeng debate, is by no means an easy one to analyse.

  • FOOM

    >>”The only people left to hold judicial office would be the bubbly-and-caviar atheists, and God, most sincerely, preserve us from that fate.”

    Heaven forfend that reason and enlightenment be our guiding principles!

  • Domhito


    Not even Zuma thought Mogoeng is the best man for the job. He tried three judges before settling on Mogoeng

  • GW

    Good article with a brave point made and then you go and ruin it with a completely hypocritical and pithy dig at “caviar-and-bubbly” Athiests? Forgive me for pointing out the obvious here but the good Judge is not only a member of a religion which you deliberately downstate, he is a pastor. That’s right, this guy promotes belief in a particular brand of thinking that is crumbling around the free world. It also casts a large grey area over the validity of our separation of church and state. When one is simultaneously an officer of both in a lofty position, I have a problem with that as should any thinking person.

    But of course Athiests are simply plump liberals without a point to make and not a brain to divvy up between them. They would also, incidentally, make the most logical choice for a judge since they concern themselves with facts and facts alone, with evidence for everything they believe, much like the law should and absolutely treasure the life and quality of life of every human since it appears, from the evidence, that it is the only one we have.

  • Morena

    There are several absurdities in Justice Mogoeng Mogoeng’s reasoning in the contested judgements. The assertion that a judge is required to evaluate all the evidence before him/her and to considered both mitigating and aggravating circumstance in arriving at a suitable sentence, should never be understood to give licence to a judicial officer to attach undue weight (in favour of the accused) on facts that in essence degrade the dignity of the victim. The framing sentences in a judgement surely must reflect the judicial officer’s considered view and evaluation of the facts; and when suggestions are made that, a woman would have probably consented to sexual intercourse had there been no third party in the room or that a man is entitled to be aroused, such insinuations contains a troubling patriarchal notion that women are objects of sex and must/will submit to the sexual urges of their partners as a matter of duty. This must cause enough outrage to result in the “media onslaught”, for if we remain silent we would be complicity in perpetuating this myth. Event then when given the opportunity to do so Justice Mogoeng came across as wanting, only come alive when access to courts and the administration of justice was the subject of discussion. I believe Justice Mogoeng surely must acknowledge that he needs to work harder on his jurisprudence. This article is I’m afraid equally wanting, in that, it is simply a shortened paraphrased version of Justice Mogoes’s 47 page

  • MoBear

    “The only people left to hold judicial office would be the bubbly-and-caviar atheists, and God, most sincerely, preserve us from that fate.”
    I’ve yet to hear of an atheist who kills for his belief in atheism, but how many people have been slaughtered for and by a belief in a “God”. Stalin and the rest of the Communist murderers may have been atheists, but they did not kill in the name of atheism.
    And what the hell is a “bubbly-and-caviar atheist”? Most atheists are seculuar humanists who believe in the sanctity of human life and respect for other humans.

  • MoBear

    Just because you label the media reporting on Mogoeng as a “Witch hunt” doesn’t make it so. The media were not only reporting on some of Mogoeng’s past legal decisions, but also reporting on the dismay of many prominent legal minds that Zuma could only have come up with this dubious character to head the Concourt.
    His demenor at the hearings was that of a smug, arrogant and self-satisfied holier-than-thou character.

  • Ms O

    As a feminist, I thank God for people like you Fiona. You are very brave to make an unpopular argument and take this stance. Thank you for an insughtful article.

  • Arthas

    @Dave Harris: “He is even accused of lacking “intellectual depth” by certain pseudo-intellectuals in our judiciary and our media mafia. Who says that a wise judge must be a bookworm or exhibit a “passion for writing”.”

    Maybe because being a judge involves a great deal of reading so as to know what the law is. Mogoeng in past judgments did not seem to know that martial rape has been illegal since 1993. That is sheer utter incompetence.

  • Muhammad

    The man has my support. I am not an ANC voter. The media in this country need to take a hard look a themselves. Why is so hard to give a black man a chance in South Africa?

  • The Creator

    Well, the media witchhunt of Justice Mogoeng can certainly be justified, and was, on two very simple grounds:

    1) He wasn’t Dikgang Mosaneke, whom the white elite wanted as Chief Justice for some reason (as the machinations of various well-funded elite “civil society” groups showed);

    2) He was nominated by Jacob Zuma, whom the white elite are getting tired of now that they can see more corrupt collaborators coming down the ANC pipeline to replace him.

    That’s about all — except it would be interesting to find out precisely what the white elite feel that Mosaneke would do for them that Mogoeng wouldn’t. Far as can be determined they are both obedient toadies of the ruling class.

  • Thulz

    As a lawyer, Mogoeng’s decisions are shocking. He does not follow the law nor does he seem to be knowledgeable about or aware of it. This is not a witch-hunt. He has been exposed.

  • Sipho

    It’s refreshing to read an article from an independent thinking white person. I so wish there were more white people who’d breakaway from the polarising sheep mentality that is so prevalent in our public discourse.

  • http://GOOGLE TOEBA

    Well said, however I still believe based on those judgements cited by the media that Judge Mogoeng based his judgements on his personal views meaning he looked at issues as a person first and let his opinion form his professional decision, which I believe as a member of the public he failed an ordinary citizen who had hope in a judge and the justice system.Now coming to that it makes him somebody who would let his personal views cloud his professional judgement and a person like that according to me is not fit to be appointed for public office especially Chief Justice.

  • Bruce Cameron

    Im probably missing something but how can the judiciary be politically independant if the president is appointing its chief justice?

    This within the framework of “one of the best constitutions in the world”?

    Someone tell me what Im missing.

  • Bongz

    Fiona Thank you , not because I mostly agree but because of the holistic picture.

    I was convinced that Mogoeng was as the media said he was until I heard the man speak. I might not have been in full agreement with him or his views but I got a chance to hear his side and I was shocked with what the media can get away with.

  • Thobekani Khoza


    “It’s refreshing to read an article from an independent thinking white person. I so wish there were more white people who’d breakaway from the polarising sheep mentality that is so prevalent in our public discourse.”

    1. Please define independent thinking in general and within the context of the dynamics of this issue.
    2. Is a the proficiency of a judge not measured using the quality of his judgement application.
    3. Is it not true that a judgements can be used in defense as precedents set compelling the the presiding judge in any such relevant case to consider [precedent set].
    4. Even if a guilty case of rape (probably of your daughter) was to be weighted against other cases in terms of the ‘varying’ severity, what ever happened to feature an intention to cause maximum harm regardless of the relations between the victim and the perpetrator
    5. What about the compelling issue of the constitutional court experience
    6. What about his dissenting judgement on homosexual case.
    7. Is the constitution Christian or acceptable to be biased to christian set of principles?
    8. Is saying what other black people are saying just because you are black and the subject is black regardless of the facts not thought dependency thus making it sheep mentality
    9. Are these above not facts that are on record?
    10. Was it unfair of some us to use as barometer

  • ZOE

    Please I think it’s about time all the people making all this noise about Mogoeng (rightly or wrongly) also delved in to the issue of apartheid-era judges still in the judiciary and give us an insight into their judgments so we can see if their mindsets have changed. Ditto all other conservative, homophobic judges; if they do not do so and soon too, then it will become obvious that this is a racist witch hunt.
    Moreover, I’d like to add that all those out there who are making so much of a noise pretending they are doing so because of the love of the rule of law, should tell us why till date the judiciary has no Code of Conduct nor have to declare their interests and/or assets; a sure recipe for a corrupt judiciary which is exactly what is operating in South Africa today. Yet all of these people making so much noise about Mogoeng have nothing to say about this apparently; shame on all of them!! That’s part of the reason why Malema has a huge following; the judiciary is meant to be the last hope of the common man but the SA judiciary is anything but but rather aids and abet the rich and powerful including govt, to trample on the them (the common)

  • Tinus

    I am glad to see a journalist speak up about bias in journalism. Journalism is supposed to be neutral (yes, it’s a nice ideal), but South African journo’s tend to jump boots and all into the most immature contortion of liberalism imaginable. It may have something to do with their general age group – or maybe with the media houises’ great financial reliance on anti-conservative publications (such as porno). Whatever. It makes great reading if you are a giggling fifteen-year old computer freak. But to anyone else it is rather a yawn.

    A good journo like Fiona will always strive for something more mature, including a good dose of reason and neutrality. Well done!

  • trcs2610

    At Thulz just to pick your brain a bit, do you still hold the same view about the Chief Justice, Mogoeng Mogoeng after the constitutional judgement of the 31/03/2016 on the Nkandla matter?