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.