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Nomination for South Africa's chief justice provokes outrage

Woman and men protest during a Slut Walk, walk that took place in the city of Cape Town, South Africa, Saturday, Aug 20, 2011.

Schalk van Zuydam/AP

When the case of the seven-year-old sexual assault victim was brought before him, Judge Mogoeng Mogoeng decided to reduce the assailant's jail term. The injury that the girl had suffered, he ruled, was "not serious."

The judge's ruling, and several similar decisions that appeared to minimize sexual attacks, have ignited an uproar in South Africa this week. In a country struggling with an epidemic of sexual violence, Judge Mogoeng has been nominated for the highest judicial post in the land: Chief Justice of the Constitutional Court.

His nomination, announced last month by President Jacob Zuma, has provoked fierce opposition from legal experts, women's groups and other activists. South Africa has one of the world's highest rates of sexual violence, with nearly 150 rapes reported every day, and many attacks are never reported because the police and courts often consider them "not serious."

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In one survey, 28 per cent of South African men admitted they had raped someone at least once in their lives. Yet only a tiny fraction of sexual assaults in the country – about one in nine, according to some experts – are reported to the police.

Just half of reported rapes lead to arrests, and only 7 per cent result in convictions. Rapes are often ignored or dismissed as a "ritual of manhood" in a society that is still traditional and patriarchal in many ways.

Judge Mogoeng, a 50-year-old church pastor, has been a judge since 1997. But he joined the Constitutional Court less than two years ago, and is considered junior to other judges who were passed over for the nomination. He was plucked from obscurity for the top job by Mr. Zuma, who himself was acquitted of rape in 2006 in a trial in which the alleged victim was verbally attacked by a mob of his supporters.

As chief justice, Judge Mogoeng would become the most powerful judge in the country, and would administer the oaths of office to South Africa's president and cabinet ministers. So his past legal rulings are now being pored over carefully. The decisions that were unearthed have sparked widespread anger and debate.

In one case, Judge Mogoeng concurred in a decision to suspend the five-year jail sentence of a man who was convicted of the attempted rape of his wife, from whom he was separated. When the man unexpectedly entered his wife's home after a year of separation, she joined him in bed but refused his sexual advances. The court found that the man grabbed his wife, "throttled her and pinned her down to the bed" and tried to lie on top of her, until she was able to escape.

The decision by the court, including Judge Mogoeng, concluded that the man must have been "overwhelmed" by sexual desire – "hence his somewhat violent behaviour." It also concluded that the man had used "minimum force" because he had not "smacked" or "punched" his wife.

South Africa's Judicial Service Commission is scheduled to hold hearings on Saturday to interview Judge Mogoeng and hear submissions by the public.

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About the Author
Africa Bureau Chief

Geoffrey York is The Globe and Mail's Africa correspondent.He has been a foreign correspondent for the newspaper since 1994, including seven years as the Moscow Bureau Chief and seven years as the Beijing Bureau Chief.He is a veteran war correspondent who has covered war zones since 1992 in places such as Somalia, Sudan, Chechnya, Iraq and Afghanistan. More

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