Kate Ferreira

Mogoeng: Give truth a sporting chance

You know the ol’ Mark Twain witticism: “A lie can travel halfway around the world while the truth is still putting on its shoes?” Well … I got a lesson in that this week. When I got to thinking about it (and I’ll get to it in a sec), this saying sprung to mind, and – like you do – I googled it. In a delightfully ironic twist, Twain has nothing to do with this one. That’s just another lie with its boots on. Via Fred Shapiro on the Freakonomics website: “A lie will go round the world while truth is pulling its boots on.” CH SpurgeonGems from Spurgeon (1859).”

This was a very small lesson in checking the source material that sprung out of a bigger one. On Saturday, at a social lunch, I found myself in verbal combat with a friend. This friend and her husband are both lawyers. I had said something disparaging about our venerable Chief Justice Mogoeng Mogoeng that had not sat well with our lawyer friends. Not only was I afraid of Mogoeng’s aggressively religious stance, but I was horrified by his leniency towards child rapists, I declared.

The challenge came back, “Where do you get this from?” I confidently explained: I had the Daily Maverick and respected journo Richard Poplak on my side. I had read Poplak’s excellent piece on Mogoeng and religion in our law. The bit that had burned onto my brain was:

“In one of his more famous and thoroughly representative rulings, he reduced the sentence of a child rapist because: ‘One can safely assume that [the accused] must have been mindful of [the victim's] tender age and was thus so careful as not to injure her private parts, except accidentally, when he penetrated her. That would explain why the child was neither sad nor crying when she returned from the shop, notwithstanding the rape. In addition to the tender approach that would explain the absence of serious injuries and the absence of serious bleeding, he bought her silence and cooperation with Simba chips and R30.’”

The lawyer fires back, “But have you seen the judgment? Journalists love to take his judgments out of context”. Now I’ve really got my back up. I’m a journalist! Ja, I’m mostly a magazine features writer, but my profession is being maligned. “How do you misconstrue that?” I demand. “It’s not a clause or a few words. It’s a whack of sentences in which he uses the phrase ‘tender approach’ to describe the rape of a child?!” My husband takes out his phone to quote from the article. It’s persuasive, emotive and well written and gets many of the heads around the table nodding in agreement. We go back and forth for a while, but ultimately agree to disagree.

Then Monday rolls around, and with it an email from my husband. “Looks like we were wrong … ” he writes. He’s pulled up the judgment. Mogoeng’s judgment uses that exact paragraph, it’s true. But, contrary to the article, the reduction of sentence just didn’t happen! And read in context, what emerges is a condemnation, from Mogoeng, of the examining doctor’s failures in performing the post-assault examination and the state’s muddled case. This isn’t just taken out of context. A new outcome, a new meaning, has been applied.

Where Mogoeng writes tender, it comes off more as “careful”. It reads as sneaky not sweet – as if to get away with it, and he might have. Another judge might have upheld the appeal because the state’s case had a lack of physical evidence or evidence that the judge found compelling* but Mogoeng doesn’t. It is as an indictment of the state’s case, not an argument for the accused.

I start googling the quote from the judgment and it appears in loads of articles and on Wikipedia. Many of them, although not all**, claim explicitly that Mogoeng reduced the sentence of a child rapist for being “tender”. From Wikipedia: “Mogoeng has ruled for reduced sentences in child rape trials … ” followed by the quote as evidence. Poplak writes: “Processed snack food buys leniency in a rape trial, a judgment that provides an interesting insight into Mogoeng’s outlook, and by “interesting” I mean “terrifying”. But, fact is, Mogoeng didn’t reduce the sentence. He dismissed the appeal. Simba chips did not buy leniency.

Some caveats: I am not saying this language about a crime as hideous as child rape is OK. I am not saying that Mogoeng has not shown odd leniency in many cases. I am not making the claim that Poplak’s entire piece is invalidated. It isn’t. I remain worried about Mogoeng’s desire to inculcate a particular religion in our secular state.

So what am I saying? The more contentious the issue, the more careful commentators need to be. When we are talking about the process of justice – so integral to the functioning of the state – we have to be extra careful because to undermine the public trust in our judicial system would be as bad as to let the courts abuse the power we bestow on them. This is an excellent article but this rather large error calls into question all of the rest of the claims. It is not a misplaced comma, it is a rewriting of the actual outcome of that particular case. I see now why those lawyer friends have reason to mistrust journos …

In a largely secular and liberal profession like journalism, we sometimes see ourselves as guardians – standing between a bully state, overreaching religious leaders, corrupt business people etc and an “innocent, unsuspecting” people who need to be informed by us, the all-knowing journos. There is much to criticise the state on, but when we screw up our facts, we devalue the claims we make, and ultimately we could lose the fragile trust we need from “the public” to do our jobs.

* Which is a whole other sad state of affairs. We need strong recognition from our courts and our chief justice that rape victims will react in a myriad of ways, and outward expression of pain and signs of physical violence are not the holy grails of evidence.

** M&G and Pierre de Vos among others point out the disturbing implications of his phrasing, but get the facts right that the appeal was dismissed, the sentence was not reduced.

Update: As of June 10 the Daily Maverick and Richard Poplak amended the article and added a postscript explaining the changes.

Tags:

  • Are today’s secularists really secular?
  • Oh my Gad! Chief Justice Mogoeng wants to mix religion and law
  • Please, no God: not in our courts, not in Parliament, not in government
  • What do parents of rape victims think of crime stats?
  • 13 Responses to “Mogoeng: Give truth a sporting chance”

    1. Haiwa Tigere #

      Thank you Kate for showing such bravery in this ivory tower of chattering classes. I realize you did not even need to write this article and it would have been OK.I have read the original report of Mr Poplak and its 111 . The chief justice has been villified and demonised in that article, has been called a moron. Remember to qualify as a moron one has to pass Moron test (questions like:I have brushed my teeth with skin lotion or rubbed toothpaste into my skin.yes/no apply)

      I am glad you have restored my faith in Sa government again. At least they dont appoint morons as chief justices.
      One complaint against you though. Moegengs name should have been in the title because google searches would miss your article. Looks like he is very much pro abused children. The rapist is in jail when at law he should have gotten off on appeal
      I think you will not be popular with the readership of this publication. Whats next from you- Zuma is NOT a rapist? There is a good story trending here- it needs support not a resistance

      June 5, 2014 at 9:15 pm
    2. RollPlayer #

      A journalist highlighting how another journalist got a basic “fact” wrong?

      Given that living in this place can feel like hell, we could perhaps take it today is as close as we’ll get to a cold day in hell, which is why we are experiencing this rare journalistic phenomenon.

      PS: Poplak may not feel inclined to apologise to Judge Moegoe, but he ought to say sorry to his readers.

      June 6, 2014 at 10:45 am
    3. Silo #

      Whoooo!!!. This is thought provoking and it came immediately having read the ruling by Adv Goerge Bizo’s on the matter between the ANC and the cartoonist. Law can be very complicated, as such, careful not scanning reading should be central to anyone consuming the news.

      June 6, 2014 at 10:55 am
    4. Conrad Steenkamp
      Mzamane #

      Excellent piece

      June 6, 2014 at 11:19 am
    5. Paul Bluewater #

      Great article Kate, thank-you.
      .
      So did he actually say he “hears the voice of God!”, and if so, what did he mean?
      .
      Trouble is, we are all known by the company we keep…

      June 8, 2014 at 1:08 am
    6. Here’s a link to the judgment: http://www.saflii.org/za/cases/ZANWHC/2007/25.html

      June 8, 2014 at 10:02 pm
    7. Thank you Kate for the well thought and enlightening article. I had previous read the daily maverick article, truth be told I was left desponded and emotionally paralyzed. Just like you at the time of reading the article I did not read the judgement. Truth be told the said article played into my emotional intelligence into believing the media onslaught against chief just that he was not the right candidate for the position. I was left with too many questions about chief chief and the outcomes were not palatable.

      Having read your article, daily maverick article and the judgement itself I can comprehend the damage inflicted in the office of the Chief Justice and the immediate erosion of PUBLIC TRUST in the state institutions and their ability to dispense justice.

      A significant number of young girls and women in our society are subjected to horrendous acts of rape and crime. They need to have hope in our justice system will protect them

      The sad article is beyond malice but inflict harm into our society.

      June 9, 2014 at 10:54 am
    8. John #

      Good article :) rather entertaining that you begin with a correction about a quote….a quote made by CH Spurgeon-possibly one of the widest read religious authors, definitely highly rated….and yet your fear of Mogoeng is his religious stance :) #gofigure….

      June 10, 2014 at 4:24 pm
    9. Gary #

      @John – Seriously? That’s your contribution? It is quite possible for someone to agree with one thing someone said, without having to agree with everything that person ever said/believes.

      Hell, Kate herself could be devoutly religious and still argue for secularism – that people’s personal religions should have nothing to do with the functioning of the state/courts. Its entirely possible to agree with religious people (such as Spurgeon) and be afraid when someone wants to impose religion onto the state. Its not Moegeng’s religion that people fear, its his stated desire to superimpose that religion onto the constitution.

      June 11, 2014 at 1:23 pm
    10. +1 Gary

      June 11, 2014 at 4:34 pm
    11. Baz #

      Religion and politics have made strange bed fellows in the long ago past. They never were really attracted to each other. What can I say, as you said: Give him a sporting change and maybe , we are, in for a few really good surprizes that will no doubt be beneficial to the government of the day.

      June 12, 2014 at 5:03 pm
    12. Baz – you’ve misunderstood my point. I am not anti-secularism. I did not say “give Mogoeng” a chance. I am advocating for careful fact-checking in media reports about contentious issues.

      June 13, 2014 at 10:32 am
    13. Baz #

      @ Kate Ferreira, hope no else misinterprets your current topic. Let’s see how many people react with their comments on the topic. Do you have any solutions for Mogoeng on the issue ?

      June 13, 2014 at 1:40 pm

    Leave a Reply

     characters available