Judge gets a grilling

2005-10-18 06:57

Cape Town - Members of the judicial service commission (JSC) reacted with shock on Monday when a judge seeking permanent appointment to the Cape Bench defended the six-year sentence he gave to a serial child sex offender.

Acting Judge Dumisani Zondi was one of two proteges of beleaguered Cape Judge President John Hlophe who were being interviewed for the two vacancies in the division.

"I don't think you understand the sensitivity of most of the members of this commission," JSC member and veteran advocate George Bizos told him at the end of his interview.

Earlier, Trade and Industry Minister Lindiwe Hendricks, a lawyer by training and a member of the JSC, challenged Zondi over the sentence he imposed in July on 71-year-old Cape Town man Yusuf Harrison, convicted of raping and sodomising a girl of seven and sodomising two boys aged eight and nine.

Outrage

Harrison had previous convictions for indecently assaulting children.

At the time, Zondi's decision drew outraged reaction from child rights organisations.

Zondi told the JSC that he had taken into consideration the fact that Harrison was a frail and sickly 71-year-old, and that the State had argued for a partly suspended five-year sentence.

He himself had felt eight years would be appropriate, and, taking into account that Harrison had already spent two years behind bars while the case was being dealt with, had handed down an effective six years.

Though the prescribed sentence for these offences under minimum sentencing legislation was life, there had been the "compelling circumstances" required by law not to impose it, Zondi said.

If the same case was to come back to him now, given the circumstances presented, to him at the time he did not think he would come to a different conclusion.

"The conclusion I came to was a well-considered one," he said.

Violence

Hendricks also challenged him on his comments in his judgement that the fact Harrison had not used a weapon when he abused his victims should count in his favour, and that rapes involving violence were regarded as more serious.

Zondi said he agreed rape was a violent offence, and said his comments might have been reported in the media out of context.

He said he had considered both medical evidence and a social worker's report, which gave no indication the victims had sustained permanent scars or physical injuries.

However, he understood that a person who had been raped suffered permanent psychological scars.

An increasingly indignant Hendricks said the 71-year-old had raped a seven-year-old girl.

"How can that not be violent, and how can you deduce that there's no damage?" she said.

She said she was trying to understand his approach not only to crimes against children, but also against women.

'Well-considered'

"What is it that's going to influence you as a judge when you sit and make decisions?" she asked.

John Ernstzen, a presidential appointee to the commission, asked Zondi whether he had considered his own children when he passed the judgement, and said he could not get past the mindset that "you seem to be bumping your head against".

"Would you still pass that same judgement today, based on everything that you've heard?" Ernstzen asked.

"The way you answered is troubling me a lot."

"I wouldn't have changed," Zondi replied. "My sentence was well considered."

Hlophe, who was present at the interview, told the JSC that he and Zondi had known each other for 26 years, and had been students together at Fort Hare University.

Also interviewed on Monday was another of Hlophe's acting appointees, Tandazwa Ndita, who has been a central figure in the newest race row in the Cape High Court.

It was during a discussion of one of her judgements that Hlophe allegedly called a white lawyer a "piece of white shit" - an accusation he has denied.

A statement on the incident by a senior advocate who was present has formed the basis of a Cape Bar Council complaint to Chief Justice Pius Langa.

Late starts

Ndita, a student of Hlophe's when he lectured law at the University of Transkei, was quizzed by JSC member Milton Seligson on what Seligson said was a "minor complaint" by advocates that she did not start motion court on time.

"Starting court on time is generally not a problem," Ndita replied.

She said the three late starts she remembered had been when she was running sections of a criminal trial at the same time she was allocated to motion court, and had to rush to change robes and courtrooms.

Asked how she got along with the Cape Bar Council, she said she did not have a problem with it.

There had been a few attacks that reflected on her ability and dignity "but I have handled those very well".

- SAPA