TRANS­FOR­MA­TION

Sits in on the JSC in­ter­views to take the pulse of the chang­ing face of the Bench

CityPress - - Voices - Tolsi is a free­lance jour­nal­ist

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 mer­itver­sus-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.

PHO­TOS: DENVOR DE WEE

REC­OM­MENDED Judge Mahube Molemela has been rec­om­mended to head the Free State Bench

Dr John Parker

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