Judging on transformation

2014-10-12 15:00

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Niren Tolsi sits in on the JSC interviews to take the pulse of the changing face of the Bench

When acting high court Judge Sardia Jacobs was first confirmed as a lawyer, she had incredulous news to tell her mother.

Recounting that conversation this week to the Judicial Service Commission (JSC) during her unsuccessful interview for a position at the Eastern Cape High Court, Jacobs said: “I told her: ‘I was admitted by a female judge, and she is just as short as I am!’”

For the determined Jacobs, this was a big deal. She had pulled herself up from a disadvantaged background on the Cape Flats to become a lawyer and her dreams needed validation.

This was impressed upon the commission when she was asked by Eastern Cape MEC for cooperative governance Fikile Xasa about the role the judiciary can play in society: “Society wants justice to be seen to be done?...?[Law] students want to see representation; they want to see themselves reflected on the Bench,” said Jacobs.

Before this week’s interviews, South Africa’s judiciary did not mirror its gender demographics. According to Census 2011, more than 51% of the population is female, while the commission’s statistics show that of the country’s 243 judges, only 79 (32.5%) are women.

At the end of this round, the commission moved closer towards ensuring the constitutional obligation that the judiciary “reflect broadly” society, with Free State High Court Judge Mahube Molemela being recommended to head her division and become only the second female judge president in the country.

Attorney Benita Whitcher was recommended for the vacancy at the labour court while attorneys Kate Savage and Gayaat Salie-Samuels are set to fill the two vacancies on the Western Cape Bench.

But as acting Supreme Court of Appeal judge Connie Mocumie told the commission during her interview to head the Free State division, there are “divergent views on transformation of the judiciary” and while the “JSC has tried to deal with it head on?...?we are not speaking the same language”.

Gender transformation being lost in translation appeared evident in the commission’s decision not to appoint Eastern Cape Judge Nozuko Mjali to the vacant seat in Bhisho. With some underwhelming candidates vying with Mjali for the position, the commission chose to leave the post vacant until interviews in April next year rather than move her closer to her family.

Mjali, whose seat is in Mthatha, had applied for the Bhisho post to be closer to her three minor children following the arrest of her husband on rape charges last year. It was a harrowing interview that left many observers uncomfortable and during which Mjali broke down several times.

Despite describing the “trauma” her children were suffering and the strain the family was enduring, the commission could not find “good cause” for her appointment.

It is understood that it was a tough decision to make with much prevarication during the commission’s deliberations behind closed doors.

The decision incited the chagrin of gender activists who had packed out the public gallery during the commission’s sitting. One of those, Kate Hindle of Sonke Gender Justice (SGJ), said it disregarded the role professional women still play as primary caregivers in a patriarchal society.

A rigid lack of nuance and sensitivity appeared to permeate the decision, suggestive of a commission that is slowly attuning itself towards what it means to be a woman in a “man’s workplace” – but is not quite there yet.

Over the past two years, Chief Justice Mogoeng Mogoeng has attempted to lead the commission away from prioritising racial transformation over gender by encouraging female candidates to reveal the “challenges” and “blockages” hindering their career progression within the legal profession.

Briefing patterns – men dominating the sort of work that exposes them to appearances in the high, appellate and Constitutional Court, as Mocumie pointed out in her interview – is an obstacle often cited.

Government, especially, has been guilty of this, according to legal researchers. A view endorsed by Free State Judge Jake Moloi who, during his interview for the division’s judge president position, said that while working at the State Attorney’s office, there had been an attempt to “evenly spread” government work around during Justice Minister Dullah Omar’s tenure from 1994 to 1999.

Moloi said the State Attorney’s office had returned to “briefing the well-known names” after 1999 and suggested this phenomenon continued into the present.

Structural patriarchy dominates the legal profession. As of April 2012, only 561 of the country’s 2?384 advocates – who appear in these courts – were women. Of the country’s 473 senior counsels, only 29 were women.

Mogoeng and judges president like the Northern Cape’s Frans Kgomo and Gauteng’s Dunstan Mlambo, have actively sought to widen the pool of female candidates by filling more acting judicial positions with women.

But people like Jacobs – a magistrate who had been unsuccessful in 2012 when she had won over many on the commission with her feistiness and forthrightness – is one of those who has been mentored and given extended acting spells to gain experience through these interventions.

But an abiding sense that a superficial and almost unwitting myopia to what profound gender transformation actually entails still permeates sections of the legal profession.

There was a sense of this when the fourth candidate for the Free State judge president position, the acting incumbent Mojalefa Rampai, responded to Mogoeng’s enquiry about his views on gender transformation by stating: “Women have been marginalised over the years. I have great respect for women and the only regret I have is that there are very few of them [in the legal profession].”

To the banal, Rampai added the suggestion that the commission was faced with a merit-versus-transformation decision – one often trotted out in the race debate – as the female candidates were inexperienced and needed to be “chiselled and moulded”.

National Council of Provinces chairperson Thandi Modise, who was largely impressive with her line of questioning during her commission debut, took umbrage with this reductive dichotomy and resurrected the “Zabalaza” of the 1970s, “when the apartheid government said these blacks are not ready to govern”.

She said: “If there is no deliberate action taken by those in power, we will take another 10 years to find these ‘chiselled women’?...?Your reasoning is a little bit problematic for me.”

Rampai bore the brunt of any ill-humour of an otherwise jovial and collegial commission. Much of the prickliness related to the fallout between Rampai and the former Free State Judge President Thekiso Musi over the former’s non-appointment following the latter’s retirement.

This had led to an exchange of angry correspondence to the justice minister and included several unseemly allegations.

One of these, that former minister Jeff Radebe had “deployed” Judge Fikile Bam to act as deputy judge president in the Free State for transformation reasons was picked up by Advocate Mike Hellens, SC.

Hellens pushed Rampai on his understanding of the separation of powers and the relationship between judges and the justice minister. When Rampai answered tangentially, Mogoeng stepped in with a bruiser’s swing, noting he had missed the “sting in the question”.

“Deployment comes with, possibly, some instructions?...?It’s like you are now the puppet of a minister,” said the clearly irritated chief justice.

“It’s not what I meant and what I intended to say,” conceded an apologetic Rampai.

Lines of questioning like Hellens’ appeared as much about clearing the air as educating the new politicians on the commission about the clarity of language, thought and fact required in this legal boxing ring.

Many of the new commissioners, like Modise and Thoko Didiza, sought to bring a freshman’s energy to the interviews, displaying an eagerness to ask substantive questions, especially around gender transformation.

Commissioners were aided by civil society organisations like SGJ, which had submitted potential questions for commissioners to ask. These covered issues like rape sentencing, the need for specialised sexual-crimes courts and whether candidates felt there was a difference between rape perpetrated by a stranger or someone intimate with the victim – many of which were used.

Civil society upped its game for this round of interviews through its submissions, increasing the public discourse volume on gender transformation and its physical presence.

The latter, allied to Mogoeng’s relentless work ethic obviating comfort breaks, meant the interviews began to resemble a cramped budget airline flight. In spite of the turbulence, the pilots appear to be relishing the flight-time.

Judge Mahube Molemela

The country’s second female judge president after the North West’s Monica Leeuw. Molemela graduated from the University of the Free State, where she also later taught in the law faculty. She has handled high-profile cases including that of the plotters who had allegedly sought to blow up the ANC’s 2012 national conference in Mangaung. She likes hiking but is afraid of snakes.

Western Cape high court judges

Kate Savage

An attorney for more than 20 years, Savage told the commission her activism started at a young age growing up in a family that was “very aware of what it meant to be a white South African in a country that brutally disadvantages black South Africans”.

She was a researcher on the ANC’s constitutional commission.

Gayaat Salie-Samuels

An attorney for 16 years, Salie-Samuels has been acting in the Western Cape High Court since July last year. During her interview, Salie-Samuels was quizzed extensively on an apparent lethargy to get to court on a Sunday to decide whether to hand down a court interdict to stop an initiation school where people had previously died.

Labour Court judge

Benita Whitcher

Alabour law expert who has worked at the Legal Resources Centre as an attorney, Whitcher has

done extensive work for trade unions, including the National Union of Mineworkers. A former academic who taught labour law and law of evidence at the University of KwaZulu-Natal, the Durban-born lawyer attended Little Flower School, which is on “the lovely road that rounds from Ixopo into the hills”, as described by Alan Paton in his novel Cry, The Beloved Country.

Tolsi is a freelance journalist

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