We are ordinary South African women and men. We use the justice system on a daily basis, working with women and men who are seeking justice for violent crimes committed against them. We are sisters and brothers, aunts and uncles, mothers and fathers, of women and men who have been raped. Some of us are survivors of rape, and too many of us have buried women murdered by violent partners. We are proud to live in a country that has the most progressive Constitution in the world. We are prouder still to live in a country in which the general public takes seriously the values enshrined in section 9 of the Constitution, which makes it clear that everyone is guaranteed equality and that no unfair discrimination will be tolerated. The Constitution represents our best hope for a democracy in which we are all equal, regardless of what we look like, how little money we may have, where we come from, who we love, or whether we are men and women.
For this reason, we cannot remain silent when the opportunity exists for us to speak up.
We live in a country in which domestic and sexual violence is endemic but where only one out of every nine rape survivors reports the attack to the police. We know that many women choose not to report rape because they do not trust that the criminal justice system will treat them with respect and dignity and because they have little faith that it will hold perpetrators accountable. Too often, even where evidence is available, sexist attitudes allow men to walk away without consequence. Over the last fifteen years, many organizations have worked hard to change the attitudes of judges and police, to rape. The introduction of the Sexual Offences Act and the Domestic Violence Act, have provided important tools to strengthen efforts to end violence against women.
Yet the biggest challenge to ending the impunity with which too many men still violate the rights of women is the attitudes of those in positions of power. Gender-based violence will end only when those entrusted with the responsibility to apprehend and lock-up perpetrators, do so firmly and without exception.
In repeatedly reducing and suspending sentences against proven perpetrators of violence against women, Justice Mogoeng has demonstrated that he cannot be relied upon to champion the rights of one half of the population of this country. And yet as the chief custodian of the Constitution, his role will be in fact to give life and meaning to the values of the Constitution.
We believe strongly that Justice Mogoeng is unfit for the position of Chief Justice. The decisions he has taken over many years make it clear that he cannot be trusted to protect women’s rights. Justice Mogoeng has suggested that rape where the rapist knows the victim “should … be treated differently from the rape of one stranger by another between whom consensual intercourse was almost unthinkable. “ Justice Mogoeng has gone so far as to say that “the relationship of husband and wife should never be overlooked by a judicial officer” as a mitigating circumstance for rape.
In a country with some of the highest levels of domestic and sexual violence of any in the world, time and again, Justice Mogoeng has allowed those convicted of violent sexual crime to walk free on suspended sentences, or sentences converted to fines. Justice Mogoeng’s decisions are all the more unacceptable in light of the fact that most victims of sexual violence report that they were attacked by someone that they know. Rapists are typically close family members and community members, rather than strangers. It is also worth noting that Justice Mogoeng’s attitudes are not uncommon: 16% of South African men who knew somebody who had been raped reported in one study, that they believed that the rape survivor had enjoyed the experience and had asked for it. Despite the prevalence of such attitudes, we expect that a judge on the constitutional court would be on the side of victims. Instead, Justice Mogoeng has a record – like too many in the justice system – of siding with the perpetrators of violence.
The information that is now public – that Justice Mogoeng has in several instances let those convicted of violent sexual crime walk free on the basis that they attacked women who had been their lovers -– was not made an issue at the time of Justice Mogoeng’s nomination to the Constitutional Court. It also seems unlikely that the President was aware of these matters when he nominated Justice Mogoeng as candidate for Chief Justice.
Our constitution endorses affirmative measures as a means of achieving substantive equality. In other words, it demands that all branches of government take action to bring about equality, including women’s equality with men. Judge Mogoeng’s rulings have done the opposite. They have undermined equality by sending a message that men can commit violence against women with near impunity, in particular that domestic violence and marital rape are less serious forms of violence.
We appeal to the Judicial Services Commission to recommend at its hearing on the 3rd of September, that the search for a new Chief Justice must continue, in order to ensure that the highest court of the land maintains the integrity and stature that it so justly deserves. A decision that sees this judge ascend to the position of Chief Justice will be an insult to the millions of women who have survived sexual violence, and to the many men who continue to stand up for gender equality.