A spineless state of affairs
Justice Malala | 05 September, 2011
When chief justice nominee Mogoeng Mogoeng is installed in office by President Jacob Zuma he might want to reflect on a few things.
He might want to think about whether being raped by one's lover is less hurtful than being raped by a stranger. He might want to reflect on whether a woman dragged for 50m behind a car by her lover had, in his words, "provoked" the man.
But I suspect Justice Mogoeng will not reflect for long. He will be enjoying his new job, his new wardrobe and the possibilities granted by the power now invested in him.
I leave the reflection, therefore, to the people whom I believe are capable of it. Like Gwede Mantashe, the ANC's secretary-general, or Jeff Radebe, its head of policy and our justice minister. I leave the reflection to Dumisa Ntsebeza, the spokesman of the Judicial Service Commission.
These august men might want to reflect on what principle means; on why they chose to back the rise to high office of a man who has displayed such a lack of principles.
Hundreds of people were murdered by the apartheid system through the death penalty. Among them were young men such as Solomon Mahlangu, and comrades of Mantashe and Radebe. Among them were innocent men and women whose sin was to oppose apartheid.
Those who opposed the death penalty and acted to stop the barbaric act, such as the lawyer Griffiths Mxenge, were murdered by the apartheid regime. These facts are known to all of us.
Now, I expect that many white and black people in South Africa collaborated with the apartheid regime. We all did, otherwise apartheid would not have lasted as long as it did. But what I find extraordinary is people who defend their participation in apartheid's barbaric practices.
On Saturday, Justice Mogoeng, without blinking his eyes in shame even once, defended his record of pushing for the death penalty while a prosecutor in Bophuthatswana.
"Somebody had to prosecute persons accused of the murders, robberies and gruesome rapes of innocent victims of violence, even during apartheid. And I did. For that I have no regret, just as I am not apologetic for the bursary that the Bophuthatswana government assisted me with," he said.
He went on to elaborate on a political trial that he had been allocated.
"When an urgent application for the stay of execution in the matter of State vs Ngobenza came before [the late Judge] Theal Stewart CJ, my boss, advocate JJ Smit SC, assigned the duty to oppose the application to me, and I did.
"At the time the death penalty had not yet been abolished. It was the law. The new Constitution did not exist. More importantly, the Makwanyane [judgment] had not yet been decided in favour of abolishing the death penalty," he said.
I am sitting here, reading what the man said, and I am filled with shock and rage. Imagine if Zuma, faced with apartheid's laws, had said "It is the law" and succumbed. Imagine if Mantashe had done the same. Imagine if Nelson Mandela, Dikgang Moseneke, Ngoako Ramatlhodi or Albie Sachs had said this.
All these people operated in the same universe as Justice Mogoeng. But they chose a different path, a nobler path that stood for principle and for what was right instead of what was "the law".
This is the problem with the ANC over the past 11 years. Zuma and his predecessor at the Union Buildings seem to appoint people to high office not because of their ability or even a progressive and pro-Constitution mind-set, but because they can be manipulated.
No chief justice will be easier to manipulate than a man who defends the death penalty simply because it was the law at the time. For Pete's sake, when this man started as a prosecutor in Bophuthatswana there was a state of emergency in place and more than 20000 people were in detention for standing up against the very death penalty he now tells us was "the law".
Whose law? The law of an apartheid government ? The whole thing makes me want to puke.
So we know now that this chief justice will be a leader who kowtows to the executive rather than the Constitution. We know now, by his bent knee in front of the apartheid monster, that he has no backbone. He will not be able to stand up against the executive branch of government if it wants to ram through pieces of unconstitutional legislation.
With Justice Mogoeng we enter Zimbabwe, where everything Robert Mugabe does is above the law, where every judge is in the president's pocket.
These are the things Mantashe, Radebe, Ntsebeza, Pathekile and Holomisa and others might want to reflect on.
They might also want to say a little prayer for their daughters.