The Judicial Services Commission (JSC) met again last week to lock minds about the suitability of a long list of candidates to fill the recent vacancies on the bench.
The team’s key role in the appointment of judicial officers to gather as much information as possible in ensuring that only the most ‘fit and proper’ candidates are selected to serve some of the country’s highest courts. The ultimate decision of the commission is not a light one to make. Judges occupy positions which are laced with both social and political power to make rulings about what course individual and sometimes communal lives must take. They make pronunciations on who gets what, who goes where and who does what. Judges are given the responsibility to uphold and enforce the social contract which is said to exist between all people. It comes as no surprise then that a large part of the JSC interviewing process is centred on the personal politics and moral compasses of the candidates. For example, Advocate Willem van der Linde who was being interviewed for a vacancy at the Gauteng High Court was called on to explain his involvement in the Ruiterwag, a right-wing organisation of Afrikaner young white men dedicated to the advancement of the Afrikaner during his years at University. Another candidate, Mpostoli Twala was put under the spotlight for failing to disclose a couple of criminal convictions from his past prior to his interview with the commission.
The consensus throughout the membership of the commission, which is made up of representative from both government and the profession, has been that the background, personal experiences, sentiments and behaviours of the candidates matter. These matter when judges are listening to testimonies. They matter when judges interpret the facts of the case. They matter when judges are constructing judgments. Even in the legal profession it is understood that the judges’ so called ‘inarticulate premises’ are constantly working to colour judicial decision making. Most of these underlying assumptions and worldviews are almost never expressed or acknowledged by the judges when making their decision.
This is equally applicable to rape cases. In South Africa rape, both as cause and effect, looms large in all of our lives. In her recent book “Rape: A South African nightmare”, Professor Pumla Gqola asserts that “Many of us live them [Rapes] directly and indirectly. Rape is the threat that the manufacture of female fear promises if we do not keep each other, and ourselves in check. At the same time, the enactment of rape reinforces this fear. When we see other women experience it, and when they are further victimized for having survived it, fear is reinforced’. This culture of rape does not space anybody from the youngest child to the eldest citizen to the President of the Republic to judges.
Judicial officers have an enormous amount of responsibility and power over people’s lives. Yet some of them both reflect and reproduce rape culture and its incidents. They share the common misconceptions about rape, and some have never really had a chance to challenge these stereotypes. Incidents of victim blaming and myths about rape are reproduced frequently in rape case adjudication. At the trial stages some judges have used considerations such as intoxication and the lack of ‘credible’ evidence to determine the perpetrators guilt. At the sentencing stages, judges frequently use considerations of whether the perpetrator showed ‘remorse’ or signs of committing another crime to mitigate or aggravate the maximum sentence for the crime.
In one case, current Chief Justice of the Constitutional Court Mogoeng Mogoeng had the following to say when hearing an appeal about a man who had been convicted of raping a 14-year-old girl: “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 victim] claims that the sexual intercourse was very painful but there was clearly nothing about her to suggest that she was in any pain when she arrived home. There is no mention of limping or crying or anything of the kind, notwithstanding the complainant’s assertions that she was heartbroken and limping as a result of the sexual intercourse.”
The damage that such microaggressions do to the victim cannot be gainsaid. The result is that not only do the conviction rates of rape crimes continue to be low, but most of these rapes never make it into the criminal justice system. Communities lose their faith in a system that lacks the capacity to address their needs and that allows rapists to go unpunished. The resulting culture of impunity can only drive the number of rape incidents upwards, thereby seriously denying women their right to live free from violence.
For more on the #JudgesMatter campaign like their facebook page: https://www.facebook.com/judgesmatter/
Sandile is an LLB candidate at UCT. She has a BA in Media Studies also from UCT. She is passionate advocate for gender rights and the intersection of issues of race, class and gender. Sandile also joined Rape Crisis’s communications team this year.