According to Nathi Mncube, the spokesperson for the judiciary, regulations promulgated in terms of the Judges’ Remuneration and Conditions of Employment Act 2001 provide for judges to take leave of three and a half months for every period of four years’ actual service from 1 May 2021.
This is not Khampepe’s first time holding down the fort for Mogoeng. It was during November 2019, Ramaphosa appointed her to the acting role. Mogoeng, was appointed by former president Jacob Zuma in 2011, whose term as chief justice officially comes to an end at the end of October, recently made headlines for his views on South Africa’s foreign policy on Israel. Raymond Zondo was appointed acting chief justice of the Constitutional Court. This leave is referred to as long leave within the judiciary.
The chief justice’s four-year cycle to take his long leave commenced on July 1, 2018 but he was unable to take it due to his judicial and extrajudicial commitments was mentioned. This is not the first time Mogoeng has taken a long leave.
According to section 173 (4) of the Constitution the chief justice and the deputy chief justice are to be appointed by the President in consultation with the JSC and leaders of political parties represented in the National Assembly.
In line with this constitutional provision, Justice Mogoeng underwent rigorous scrutiny before the JSC in what was to become the most publicized interview of such a nominee. Media reports stated that a number of concerns have been raised discrediting the suitability of Justice Mogoeng for the position. These include amongst others; the Cape bar council’s submission questioning the ethics of Justice Mogoeng when he did not recuse himself as a judge in two cases where his wife was acting as the prosecutor, his gender insensitivity while dealing with cases of domestic violence and the Freedom Under Law organization also challenged the power that Zuma has under section 173 (4) of the Constitution to appoint the Chief Justice.
In the 2001 case of S v Mathebe, the accused was convicted of assault with the intention to do grievous bodily harm. He had tied his girlfriend onto his car and dragged her on a gravel road at a high speed for 50 meters then later on denied her access to medical treatment till the following day.
Here, Justice Mogoeng reduced the accused’s sentence from 2 years imprisonment to a fine of R 4000 or 2 years imprisonment suspended for 5 years. One of the reasons he raised for his decision was that the victim “provoked” the accused and that she did not suffer serious injuries. Hence there was no need for a harsher sentence.
The 2005 case of S v Moipolai involved the rape of an 8 months pregnant woman by her long-term boyfriend and father of her two other children. Justice Mogoeng reduced a sentence of 10 years imprisonment to 5 years and he stated here that the rape was not as “serious” as it would have been had a stranger committed it.
Finally, the 2006 case of E Modise v State, dealt with attempted rape (marital rape). The couple was said to have separated for a year when the accused committed the crime. Justice Mogoeng gave a concurring judgment where the 5 years imprisonment sentence was reduced. He stated that some of the reasons for this were that the rape was not as “serious” as it would have been had a stranger raped her and that no injury had been caused to the victim.