CURRENT AFFAIRS, LAW

A critical feminist outcry: What do feminists expect from a Chief Justice?

By Linda Stewart

The previous judgments of the designated chief justice speak for themselves. Justice Mogoeng’s approach to the law clearly emerged as that of a patriarch with little or no appreciation to the foundational constitutional values of human dignity and equality. It is undeniable that the judicial philosophy of a judge will surface once the reader is confronted with his judgments. What is particularly concerning is his denial of marital rape and of male rape (or at that time assault), his support of the death penalty and his arguments that the victims of sexual violent crimes contributed to the crime committed against them. From a feminist perspective these judgments contradict our very beliefs. It necessitates our outrage and criticism but is also forces us to investigate the underlying reasons for such views. It confronts us with the question what do we expect from a chief justice.

Traditionally approaches to law (legal formalism, liberal legalism or positivism) accept a strong divide between law and politics and law and morality. According to these approaches judges reach decisions by ‘applying the law’. In theory judges do not produce laws. Most legal scholars in South Africa are familiar with and proponents of legal formalism because of our inheritance from the British doctrine of parliamentary sovereignty, the majority of us received our tertiary education based on this his approach and during the apartheid years, as this approach suited the judicial approach of not questioning the content of the laws made by parliament.

The Constitution however expects more from the judiciary and legal scholars than merely applying the law.  The Constitution and its transformative mandate requires that judges adopt new approaches to law recognising that law texts do not speak for themselves, rather judges need to engage with these texts to interpret and produce meaning to it. The implication is that judges are producers of law, and in doing so judges are positioned actors that draw on their personal and political choices. This approach to law, known as the critical approach to law, recognises the indeterminacy of legal text and the active role of the judiciary in providing meaning to legal materials.

Transformative constitutionalism envisioned by our Constitution has been described by former CJ Langa as a vision that ‘suggests change in society based on substantive equality’. Deputy CJ Moseneke has argued that transformative judicial adjudication should pursue social justice and central to this is the achievement of equality, an impossible goal unless current power structures in relation to society are addressed. In addition he comments that liberal legalism or formalism balks at the idea of transformative adjudication. At the centre of transformative constitutionalism is the idea that substantive equality can only be reached when the judge or scholar working with legal materials recognise that the law is a social construct that reinforces these inequalities and differences. Critical Feminist scholars have engaged with the law from this perspective to expose its gender bias, and have extended the argument for other disadvantaged categories such as race, sexual orientation and class. For Critical Feminists, the evil is not indifference but rather in the negative impact resulting from this differentiation. Critical Feminist Theory as part of the critical approach to law has valuable contributions to make in a judge’s interpretation and adjudication of the Bill of Rights especially when she needs to fill her mandate to produce meaning in relation to values of equality, dignity, ubuntu and freedom.

Despite of the constitutional imperative to adopt new approaches to law, law may change on paper but legal culture and approaches to law may remain stagnant. This is precisely the predicament we are facing in South Africa. With the exception of a number of judges, the majority of the judiciary (judges and magistrates) and the legal community are still confined within a legal culture where judgments are pursued from a strict approach to legal formalism and were judges still believe “the impossible”; that law and politics and law and morality can be separated.

We need a Chief Justice who:

  • supports a critical approach to law
  • recognises that law and politics as well as law and morality are interrelated and that this assumption is foundation to her judicial philosophy;
  • is committed to transformative constitutionalism, and the foundational values of equality, human dignity, freedom and ubuntu in our Constitution;
  • is critical to the power structures that maintain inequality and patriarchy;

Bibliography

Albertyn C & Glodblatt B ‘Facing the challenges of transformation: Difficulties in the development of an indigenous jurisprudence of equality’ (1998) SAJHR 248-276

Klare K ‘Legal culture and transformative constitutionalism’ (1998) SAJHR 146 -183

Langa P ‘Transformative Constitutionalism’ (2006) Stell LR 354-360

Moseneke D ‘Transformative Adjudication The Fourth Bram Fisher Memorial Lecture’ (2002) SAJHR 309-319

Pieterse M ‘What do we mean when we talk about transformative constitutionalism?’ (2005) SAPL 164-165

Van Marle K ‘Transformative Constitutionalism as/and Critique’ (2009) Stell LR 286-301

Van Marle K ‘Revisiting the politics of Post-Apartheid Constitutional Interpretation’ (2003) TSAR 549-557

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8 thoughts on “A critical feminist outcry: What do feminists expect from a Chief Justice?”

  1. #Mogoeng made the following remarks in a case in which a man was found guilty of raping a innocent and defenceless child:

    Pierre de Vos just brought the following to my attention via his blog Constitutionally Speaking http://constitutionallyspeaking.co.za/why-ramatlhodi-promotes-an-autokratic-kleptocracy/

    Case reference: S v Sebaeng (CA 16/2007) [2007] ZANWHC 25 (22 June 2007)

    Mogoeng had the following to say about the “shortcomings” in the victim’s evidence

    “She 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 and even during her stay there at her grandmother’s home … When she arrived at her grandmother’s home, the only strange things observed and spoken about by those who saw her were the Simba chips, the R30.00 and the 9 o’clock appointment with the Appellant….

    One can safely assume that [the accused] must have been mindful of her tender age and 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 the R30.00.”

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  2. Submission prepared by Nicole Fritz at the Southern Africa Litigation Centre based on a review of Justice Mogoeng Mogoeng’s rulings in cases of child sexual abuse

    August 2011

    S v Mathule (CA 243/03) [2004] ZANWHC 6 (19 March 2004)

    This case involved an appeal to the Full Bench of the High Court, presided over by Hendriks J, Landman J and Mogoeng JP. The case concerns an appeal against a conviction of rape of a 7 year old girl and the life sentence imposed.

    The conviction was upheld. However, the sentence was reduced from life imprisonment, the minimum sentence imposed by law, to 18 years. While rape is a serious offence, the rape of a young child is a particularly egregious act. Nowhere in the judgment did the court appreciate the serious nature of the offence, or reflect on the prevalence of child rape. Hendricks J, writing for the court, in which Mogoeng JP concurred, found that substantial and compelling circumstances existed to justify a departure from the sentence imposed by the court a quo.

    The Supreme Court of Appeal has found that the prescribed sentence is life imprisonment in cases of rape of girls under the age of 16 unless “weighty justification” exists justifying a departure.[Rammoko v Director of Public Prosecutions 2003 (1) SACR 200 SCA] In Mathule the following grounds were listed as serious and compelling circumstances justifying departure from the imposition of life imprisonment –

    – Apellant is 31 years of age;

    – He is unmarried;

    – He is unemployed;

    – He is suffering from chronic epilepsy;

    – His highest qualification is standard 7;

    – He is staying with his unemployed mother.

    Yet no explanation was provided for why these factors constitute “substantial and compelling circumstances”. In the main, these factors, apart from the appellant’s illness, do not obviously call for leniency on the part of the criminal justice system. At best, an impression of arbitrariness is created: at worst, that child rape is not among the most egregious crimes in our country deserving the law’s full effect.

    S v Sebaeng (CA 16/2007) [2007] ZANWHC 25 (22 June 2007)

    This case concerned an appeal against conviction of rape of a 14 year old girl. The appeal was dismissed. Yet certain observations by Justice Mogoeng give rise to apprehension as to his ability to comprehend the full and devastating impact of sexual violence. In his evaluation of the evidence, he pointed to certain “shortcomings” in the victim’s evidence:

    “She 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 and even during her stay there at her grandmother’s home … When she arrived at her grandmother’s home, the only strange things observed and spoken about by those who saw her were the Simba chips, the R30.00 and the 9 o’clock appointment with the Appellant.”

    Justice Mogoeng fails to acknowledge that victims react to rape in different ways. More disturbingly, he appears to suggest that rape might be perpetrated with solicitous regard:

    “One can safely assume that [the accused] must have been mindful of her tender age and 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 the R30.00.”

    S v Serekwane (175/05) [2005] ZANWHC 52 (1 August 2005)

    Mogoeng JP, concurring in judgment concerning an appeal of conviction and sentence for the attempted rape of a 7 year old girl, found that the evidence wasn’t sufficient to justify the conviction of attempted rape and instead substituted the conviction with that of indecent assault and reduced the sentence from 5 years to 3.

    This case also evinces a disquieting misunderstanding of the responses to rape and the consequences thereof.

    The case turned on the evaluation of the medical evidence. The doctor found bruising in the entrance of the victim’s vagina and this was indicative of “something coming into contact with [the victim’s] genitals” Because the victim’s dress was covering her head she was unable to confirm whether the accused used his finger or penis to abuse her. The court however found that because the victim “did not feel pain whatsoever … at the time of being touched” that this “militates against the Magistrates conclusion that the Appellant’s penis caused the injury”. Yet the complainant testified to the accused using his hands to hold her around the waste during the course of the attack.

    The conviction of attempted rape was set aside and substituted with a conviction of indecent assault. In reducing the sentence to three years the following were considered relevant –

    – The accused was 30 years old and a first time offender

    – He is married with two children

    – The accused is a soldier who earns R1800.00 per month.

    The relevance of these factors was not explained.

    In relation to the harm suffered the court found that

    “The complainant is seven years old, the injury she sustained is not serious. She sustained a bruise on her vestibule. Although there was no direct evidence led, she must have suffered some psychological trauma, as a result of this incident.” (emphasis added)

    It is hard to see how an injury to a seven year old which results from sexual abuse, perpetrated by a “friend of the [victim’s] father”, can ever be classified as “not serious”.

    S v Maluleka (CA 20/2008) [2008] ZANWHC 23 (4 August 2008)

    This case involved an appeal against a sentence of life imprisonment imposed on a man for murdering his wife. The judgment written by Landman J, in which Mogoeng JP concurred, upheld the appeal and reduced the sentence to 18 years on the basis that “substantial and compelling circumstances” had been shown. The circumstances in which the murder took place, and which were taken into account by the appeal court, include:

    – The accused murdered his wife in front of two of his children, aged 9 and 13;

    – He asked the children if he should kill his wife;

    – The murder took place in the course of a domestic quarrel in which the wife was accused of spending too much money;

    – The accused expressed remorse;

    – The accused had no previous convictions;

    – The accused had four young children;

    – The accused handed himself over the police;

    – The accused believed, “albeit unjustifiably”, that his wife was having an affair.

    Again, no justification was provided as to why these factors might be classified as “substantial and compelling”, meriting reduction in sentence. Several of the factors cited appear particularly aggravating, not least that he sought to involve his children in the killing and that he required them to bear witness to their mother’s death.

    (as posted on Aug 31st, 2011 by Pierre De Vos http://constitutionallyspeaking.co.za/submission-on-mogoengs-handling-of-child-sexual-abuse-cases/)

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  3. In a country where violence against women and children is already at an epidemic stage, we do not need such blatantly sexist views such as “the rapist was obviously tender with his victim.” She was under the age of TEN never mind sixteen!! Cry the beloved country’s women.

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