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South Africa Chief Justice Nominee Draws Fire

  • Joe DeCapua

South African President Jacob Zuma has announced his choice to be the country’s next chief justice. But his nomination has drawn lots of criticism from legal and women’s rights groups. In particular, Justice Mogoeng Mogoeng is being criticized for some of his rulings on marital rape.

Surprise, then shock

“When we heard about the nomination we were a little bit surprised because South Africa is lucky enough to have a range of judges who have excellent constitutional experience, better experience frankly than he has. So we were surprised because we thought he was one of the less experienced judges,” said Sisonke Msimang, chairperson of the Sonke Gender justice Network in Johannesburg.

Then the group’s opinion of Mogoeng quickly worsened.

“When our legal researchers started to dig into his past and look at some of his decisions, frankly, we were shocked. And it’s clear that in the 2009 confirmation hearings, where he was nominated to become Constitutional Court judge, no one picked up on the fact that he had made some pretty remarkable judgments that fundamentally go against women’s rights,” she said.

Marital rape

Mogoeng’s decisions in marital rape cases have drawn some of the sharpest criticism.

Msimang said, “Between 2001 and 2007, in four different cases that we’ve unearthed…Justice Mogoeng made it clear that it was his feeling that where a man has had sexual relations with a woman in the past, consensual sexual relations in the past, that precludes the possibility of him raping her in the future. Essentially, he was saying, that although he recognized in a number of different cases that there was strong evidence that force had been used, that women had been raped, he felt that the sentences of the convicted rapists should be reduced because they had had previous sexual relations with those women.”

South Africa’s Mail & Guardian newspaper published a portion of a judgment handed down by Mogoeng:

“This is a man whose wife joined him in bed, clad in panties and a nightdress. When life was still normal between them, they would ordinarily have made love. The appellant must, therefore, have been sexually aroused when his wife entered the blankets. The desire to make love to his wife must have overwhelmed him, hence his somewhat violent behavior.”

“In 1993, South Africa passed a law which made marital rape illegal,” Msimang said, “I think the case you’re referring to happened in 2004, about then. It’s deeply, deeply worrying and dismaying that a judge with views that are antithetical to the values enshrined in our constitution would be nominated for chief justice.”

A nomination hearing for Mogoeng is scheduled for September 3rd. The Sonke Gender Justice Network has filed a statement asking that his nomination be withdrawn or rejected.