Mervyn Naidoo
THE case of a Phoenix woman who had the “temerity” to challenge a magistrate’s view that an outfit she wore to court was “too revealing”, began in court this week.
Mary Govender lodged a complaint with the Equality Court after magistrate Ismail Malek voiced his disapproval of her wearing a “low cut” dress, when she appeared briefly before him in October.
Malek was standing in for another magistrate when Govender, accused in a Sars matter, stood before him.
Govender who considers her dressing to be “glamorous with a little bit of sexy” demanded in her application that Malek apologise and pay R50 000 damages for “demeaning” her in open court.
However, on Friday, Malek, who was represented by advocate Joe Nxusani SC, asked magistrate Gert van Rooyen, to discharge the matter by making an absolution application.
Nxusani supported his application by arguing that Govender’s legal team had failed to make a case in presenting their argument the previous day.
Malek is not liable to pay damages because, as a judicial officer, he has immunity from civil claims.
The advocate said the immunity could be waived only if Malek had acted with malefide (malicious) intent.
But, Nxusani said, no such intent had been proved against Malek.
“Her imagination ran wild, she can’t say Malek discriminated against her. He’s expressing himself.”
Nxusani also raised the fact his client had been “stereotyped a million times” including the occasion when Malek was described as a “sick pervert”, by Govender during her testimony.
“You must grant absolution in this instance,” Nxusani said.
In contesting Nxusani’s application, Govender’s attorney, Dennis Matotoka asked: “Are judicial officers above the law and cannot be held accountable?”
“I concede there is initial immunity, but we have the constitution and Malek’s conduct has to be consistent with the constitution, especially when it degrades and undermines.”
The attorney also told Van Rooyen that if he granted Nxusani’s application it would deny the court the opportunity to test Malek’s evidence.
“It will be a travesty of justice. Therefore, I ask that the application be Mary Govender has lodged a complaint with the Equality Court after magistrate Ismail Malek chastised her for wearing a revealing dress. dismissed,” Matotoka said.
The bulk of Friday’s argument was around technical issues of whether Malek was above the law. The previous day’s proceedings were riveting, and many onlookers were drawn to the court’s small gallery.
Govender, dressed in a blue designer outfit with leopard print, had been in the witness box for much for the day.
Led by Matotoka, Govender related her “upsetting” 15-minute “encounter with Malek on October 7.
“If he felt uncomfortable with my attire he could have addressed it on another platform,” Govender suggested. Instead, he “sexualised my dress”. “I felt humiliated, angry and demeaned because it was on a public platform. I’m not a woman who would run off and cry. I decided to fight back.”
Govender said she would have been prepared to put the incident behind her had Malek offered a sincere apology.
On her conviction on several counts of theft and fraud she faced in 2011 and her subsequent imprisonment, Govender responded: “It has nothing to do with this matter.”
The matter will continue in August.