Mogoeng vs Sluts and Others

In 2002, Mogoeng found that a man’s ‘girlfriend’ had ‘provoked’ him to tie her to the back of a car and drag her along a gravel road. This ‘provocation’ was found by Mogoeng to be a mitigating factor in the accused’s actions, along with the fact that the woman did not suffer “serious injuries”. On the basis of this argument Mogoeng found that the initial two-year sentence was “too heavy, according to any standards”. Whose standards was Mogoeng upholding here? Certainly not the standard of ‘sluts’, aka women who claim their rights to bodily and sexual autonomy.

After a Canadian police officer reprimanded women to avoid dressing “like sluts” lest they be raped, SlutWalks erupted worldwide as a spontaneous form of resistance to, among others, social discourses that blame women for the violence perpetrated against them by men. Slutwalk messages challenge the sexist mythologies that “how women behave” and “what they wear” justify violation of their bodies. In Mogoeng’s judgment in the aforementioned case, he used the notion of “women provoking male violence” to reduce the sentence.

At the same time as we debate Mogoeng’s suitability to assume the position of Chief Justice, Slutwalking South Africans took to the streets, in dress codes that subvert gender norms and parody gender stereotypes, to draw attention to the prejudiced representations of women that are so often used to justify rape.

In his judgment in a rape case in 2007, Mogoeng suspended the convicted rapist’s jail sentence on the grounds that he had been ‘aroused’ by ‘his wife’ and had used ‘minimum force’, despite having ‘throttled’ her. Here, Mogoeng uncritically trots out the age-old justification of rape. Of the rapist he stated: “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.” So, it’s the scantily clad slut’s fault. These judgments strongly suggest that sexist fallacies underpin Mogoeng’s views on violence against women.

And what are Mogoeng’s views on homosexuals? One assumes he associates himself with the ideas of the fundamentalist Winners Chapel International church, where he is an ordained pastor. The church believes homosexuality is a ‘perversion’ that needs to be cured. But let’s not jump to conclusions for now. It’s not what he personally thinks of queers that counts, rather whether, in his capacity as a judicial officer, he is able to uphold the Constitution without prejudicing queers. In this regard, what we do know is that Mogoeng took a dissenting position amongst his peers in the case of Le Roux vs Dey earlier this year. He, without providing reasons, distanced himself from sections in the majority judgment that related to ‘constitutionally protected groups’ – meaning gays and lesbians in the present case.

Mogoeng’s failure to provide a judicial rationale for his dissent raises questions about his views on, and accountability to, constitutional principles that recognise and uphold the rights and protections of gay and lesbian people. We also know that Mogoeng offers counselling to ‘cure sexual deviants’ from the ‘sin’ of homosexuality.

I would not want to drag Justice Mogoeng’s name through the dirt (although by his own standards, as expressed in the 2002 case, if he provokes me to do so I might be justified). At the very least, in his upcoming interview with the Judicial Services Commission, he should be required to make known his judicial stance on the constitutional rights of LGBT people and women. After all, the job of the Chief Justice and the Constitutional Court is to uphold, strengthen and validate the Constitution. He should also, as a matter of judicial accountability, be required to make known the reasons for his dissent in the Le Roux case.

Judge Mogoeng swore an oath when he took office that he ‘would protect the Constitution and the human rights entrenched in it’ and would ‘administer justice to all persons alike without fear, favour or prejudice’. The Court is the highest constitutional authority in the land and so Mogoeng’s fitness to hold this post should be judged by, among other factors, his capacity to defend constitutional values and his ability to equally serve all South Africans, including women, and gay and lesbian people.

The Court has built a body of jurisprudence that gives meaning to the rights of women, gay, lesbian and transgender people. It has defended and upheld principles of dignity, equality and human freedom not just for some, but for all. Should Mogoeng be appointed as the new Chief Justice, will he deepen constitutional democracy built on values of inclusion and non-discrimination? This democracy, with all its fault-lines, has enabled queers and “sluts” to increasingly strut their stuff, and stake their claim, in the shaping of the post-apartheid landscape. We will need to keep a careful eye on Mogoeng as he struts his.