by Luvo Nelani and Tim Fish Hodgson
The reference list protests at the University currently known as Rhodes University, the rape of a protesting student by a private security guard at the University of KwaZulu-Natal and last years’ schisms within student movements at the University of Cape Town and University of the Witwatersrand plainly demonstrate the pervasive and violent nature of patriarchy and its expressions.
In efforts to contextualise oppression, gender and race disparities are often placed in the finished past. However, while the service of feminism is no longer to riot for the vote, today it is, in part, to act against the rape of women, and the patriarchal culture which permits and encourages it – “rape culture” – on university campuses and throughout society.
The urgency of this fight to disrupt patriarchy is affirmed by the fact that patriarchy continues to find accommodation in our conversations, in jest or conquest, and perhaps more disappointingly, in the reasoning of our courts.
The appointment of Chief Justice Mogoeng Mogoeng in 2011 was marred with palpable criticism which contrasts clearly with the recent praise he has received.
The Chief Justice’s Nkandla judgment, coupled with the leadership he has shown during a time in which the judiciary has come under a high level of executive pressure from the ruling party, has led several commentators to suggest that his detractors owe him an apology.
This strong leadership must be commended, and some of the reasons for the opposition to Mogoeng’s appointment at the time, dismissed. Nevertheless an analysis of positions taken by Mogoeng in a number of judgments relating to sexual violence and gender remains essential. Instead of apologising for these critiques they should be made of all candidates – and in particular, male candidates – for judicial office, especially as the Judicial Service Commission (JSC) sits this week in Cape Town for its October round of interviews of aspirant judges.
Some of the positions taken by Mogoeng, raised briefly in this article, were, and continue to be, distressing, inconsistent with the Constitution and harmful in South Africa’s violently patriarchal society.
The October 4 interviews for a position on the Constitutional Court — chaired by Mogoeng — will, yet again see four male judges interviewed for this top position.
Even more than Mogoeng’s own record on rape judgments, his ability to scrutinise his male colleagues’ records in these interviews is now of critical importance.
The role of the Chief Justice
In South Africa’s constitutional democracy, the role of a chief justice encompasses not only leadership of the Constitutional Court, but also the judiciary as a whole. As a representative of the state, the head of one of the three branches of government, the chief justice is constitutionally required to “respect, protect, promote and fulfill” all of the rights in the Bill of Rights without fear, favour or prejudice. He must do so both on and off of the Bench.
He – as the Office of the Chief Justice has never been held by a woman – should therefore be an exemplary in the process of giving effect to the transformational mandate of the Constitution broadly, but especially relating to racial and gender transformation.
He must do so in all respects including in his judgments, in his interactions with lawyers and other judges, in contributing to the determination of rules of Court and the judicial appointment process as chair of the JSC.
Opposition to Justice Mogoeng’s appointment as Chief Justice in 2011
Opposition to Justice Mogoeng’s appointment as chief justice was widespread.
Some questioned his independence suggesting that he was likely to be “executive-minded” and implying strongly that he would be President Zuma’s stooge. There was never much factual support for these allegations, particularly as media reports at the time indicated that he was nowhere near the President’s first choice and there was little or no evidence of an overly deferent position in his judicial record, including on the Constitutional Court.
Others were merely taken aback by Zuma’s snubbing (for a second time) of their favoured – and indeed the favourite – candidate for the position, Deputy Chief Justice Dikgang Moseneke. The recently retired Moseneke is a veteran of Robben Island between the ages 15 and 25, an excellent lawyer, a well-publicised critic of Zuma and the ANC, and appears as the epitome of regal judicial independence and everyday cool. Justice Mogoeng on the other hand appeared to have emerged very suddenly despite his significant experience as Judge President of the North West High court. His public image was marked by his apparent religious zealousness and, seemingly, his ease in being riled up by any criticism.
The comparison at face value led many to jump from supporting Moseneke’s appointment to opposing Mogoeng’s with startling ease.
It is therefore true that the public statements of opposition to Mogoeng’s appointment as chief justice, which suggested that he was a Zuma cohort, were inadequately considered, emotionally charged and plainly, unwarranted.
But that is not the end of the story. Chief Justice Mogoeng had important skeletons in his judicial closet which the heightened scrutiny on his appointment ably exposed.
These skeletons produced a third line of opposition to his appointment as chief justice: his approach to sexual violence and gender in some of his judgments.
Because of how serious these criticisms are, and how quickly they have been forgotten in light of his Nkandla judgment, it is worth describing the specific cases in relative detail.
Chief Justice Mogoeng’s approach to rape and gender-based violence
S v Modise is a 2007 Mahikeng High Court judgment of Judge Samkelo Gura in which Mogoeng signed onto. It concerned an appeal against the conviction and sentence for attempted rape. At the time of the incident the appellant and complainant were undergoing divorce proceedings.
In justifying the decision to wholly suspend the sentence the judges maintained “This is a man whose wife joined him in bed, clad in panties and a nightdress. When life was still normal between them, they would ordinarily have made love. The appellant must, therefore, have been sexually aroused when his wife entered the blankets. The desire to make love to his wife must have overwhelmed him, hence his somewhat violent behaviour. He, however, neither smacked, punched nor kicked her. Minimum force, so to speak, was resorted to in order to subdue the complainant’s resistance”.
Excuses and apologies for sexual violence and rape culture such as ‘she dressed like that she asked for it’, ‘she wasn’t really hurt’ and ‘he was understandably aroused’ underpin the determination of this judgment.
These assumptions are a common form of victim blaming targeted at already traumatised women and girls attempting to lay charges of sexual assault and rape. They indicate to men, and perpetuates the idea within our law and jurisprudence, that men cannot be expected to control their own sexual desires.
In another case, S v Moipolai in 2004, Mogoeng’s view was that the rape of a “common law” wife by her husband “should be treated differently from the rape of one stranger by another”, a position which by then was not supported by South African criminal law.
This approach gives credence to the erroneous notion that rape is only committable by strangers. It invalidates the realities of women who are raped by men who they know. This view is patently false, as was most recently confirmed by a Statistics SA report published earlier this year that notes “an increasing pattern” of the “spouse/lover being the main offender”.
Then, Mogoeng held that in going to the perpetrator’s parental house the ‘complainant must have come knowing that this was either likely to happen or was going to happen for sure’, which served as a mitigating factor that persuaded him to suspend half of the sentence handed down in the trial court.
In this statement it seems that Mogoeng was referring to sexual intercourse and used the actions of the victim to infer things about her participation. A useful analogy which lends itself to this rationale can be found in Barbara J Fields’ essay titled Slavery, Race and Ideology in the United States of America. About race she writes ‘the native must not just submit, they must cooperate’. Similarly, in Mogoeng’s formulation, women are beholden to surrender to men and must behave in a manner that renders them deserving of the protection of the courts or they will be deemed to have cooperated.
The privacy of the bedroom, and of the home, has long been used as a judicial and societal excuse to leave women who are violated by their families and intimate partners without support or recourse.
The commonplace exercise of patriarchy makes it necessary to assign to it a vernacular to make sense of the almost customary taking of women’s bodies, which nomarlises rape.
In a third case, of S v Mathibe, a man dragged a woman tied to the bumper of his car at “a fairly high speed over a distance of about 50 metres”. He was initially sentenced to two years’ imprisonment.
Mogoeng reduced the sentenced to a fine of “R4 000 or 2 years’ imprisonment of which half is suspended for 5 years” despite acknowledging that this “ancient and barbarous” form of punishment was “prevalent” in the district.
Four thousand rands — quite literally, a small price — is placed on the physical safety of women from patriarchal violence. Men’s freedom to be violent is prioritised over women’s rights to be free from violence.
This is the same complaint made by students after the leak of the RU Reference List which resulted in alleged perpetrators being placed in safe-houses while rape survivors were subjected to secondary victimisation by university management, lecturers and the police for their protest action.
Unfortunately, the influence of patriarchal norms in the determination of rape cases, as summarised above, is pervasive. As Moreland concludes in a survey of rape judgments, and as we shall see below, the judiciary tends to “speak with a patriarchal voice”. It is a systemic challenge which needs immediate attention and is sadly not unique to Mogoeng. Even so, he, as a judge, Judge President of the North West High Court and now Chief Justice of the Constitutional Court, may not simply adhere to and promote the often harmful views of the majority.
What we expect of him – and all other judges – is to be awake to the realities of rape and defend against the misogynistic myths which underlie such judgments. To quote Mogoeng’s Nkandla judgment, the chief justice, like the president is a “constitutional being by design, a national pathfinder”.
Chief Justice Mogoeng’s record on gender since his elevation
Mogoeng, in authoring the emphatic Nkandla judgment, made a clear statement about the supremacy of the Constitution and parliament’s oversight power’s of the executive.
He took the lead in sending the country – and indeed the world – the message that South Africa’s young constitutional democracy is alive and well. This should rightly not only find favour with the public but, also be regarded as a vindication of constitutional values of accountability and transparency.
But how has the judiciary, and Mogoeng in particular, faired in relation to criticisms about his approach and attitude towards gender since 2011?
In the very first judgment penned by Mogoeng after his elevation to the Office of the Chief Justice on 8 September 2011, the court was seized with a case involving the rape of a thirteen-year-old girl by a plain clothes policeman who was on standby duty.
Overturning a judgment of the Supreme Court of Appeal, Mogoeng held that despite the policeman being off duty, and it being debated whether the girl had understood him to be a policeman, that the minister safety and security was liable to pay the girl damages. This, he reasoned, was because of the importance of holding the police to account, ensuring that the public could trust the police and because of the “special vulnerability of women and children” to sexual violence.
In this judgment, Mogoeng, acknowledged that “the abuse of women and girl-children is rife in this country. The police service is constitutionally required to combat these, and other, crimes”. He went on to quote with approval from an earlier Constitutional Court judgment that “sexual violence and the threat of sexual violence goes to the core of women’s subordination in society. It is the single greatest threat to the self-determination of South African women.”
Later, in 2013, Mogoeng signed onto a unanimous judgment of Justice Sisi Khampepe — then one of the Court’s only two female judges — in Teddy Bear Clinic. In that judgment the Court, to many commentators’ surprise, took a progressive approach to adolescent sex in striking down a law that attempted to criminalise consensual sex between teenagers. The judgment concludes that sexual experiences during adolescence are “developmentally normative” and significant and that: “there are various methods the state could use that do not involve criminalisation of consensual sexual conduct between adolescents in order to encourage them to lead healthy and responsible sexual lives”.
This is a limited survey and should not be understood as an endorsement of all of Mogoeng’s judicial activity since his appointment as chief justice. For example, recently, Mogoeng signed onto a deeply sexist judgment of Justice Ray Zondo in Klaase which concluded that Mrs Klaase, a female farmworker who had been working and living on a farm for decades only had rights of occupation on the farm “under” or “through” her husband.
Similarly progressive is Mogoeng’s contribution to gender transformation of the judiciary. The chief justice has a direct role in determining whether a judge is appointed in an acting capacity to the Constitutional Court, usually while a permanent judge is on long leave.
A survey of the Constitutional Court’s website indicates that between 1995 and 2011 under Chief Justices Ismail Mahomed, Arthur Chaskalson, Pius Langa and Sandile Ngcobo, embarrassingly only one out of 17 judges appointed as an Acting Judge was a woman.
Of the 16 men appointed as acting judges during this period four have gone on to be permanent judges of the Constitutional Court. During this same period, only four women served as permanent judges of the Constitutional Court in total.
Between Chief Justice Mogoeng’s appointment in late 2011 to date, of 14 acting judicial appointments to the Constitutional Court, six have been women. One of these acting appointments, Justice Nonkosi Mhlantla, having been given an opportunity to act in 2013/14 was subsequently appointed as a permanent member of the Constitutional Court late in 2015.
A stark improvement and a reminder of the fact that Mogoeng’s well-respected predecessors themselves have had patchy track records on gender transformation.
Redemption through the JSC?
Mogoeng’s next major challenge in this process is ensuring that he scrutinises judges Malcolm Wallis, Jody Kollapen, Ronnie Bosielo and Stevan Majiedt in the same fashion that he was scrutinised by civil society during his own appointment process.
Despite his better record in securing the appointment of female acting judges to the bench, alarmingly three of the men and none of the women that he has given the opportunity to act are candidates for appointment in the JSC’s interview session this week. This alone should be questioned.
Moreover, as is the case far too many judges, these three candidates for appointment in particular have well-known chequered records on cases relating to gender-based violence.
In 2009 Majiedt, for example, had a judgment about the rapes of a minor girl he authored in Bothma v Els overturned by the Constitutional Court. The alleged rapes had taken place in between 1968 and 1970. The Court was asked to determine whether the delay in bringing the case to court, which the applicant had explained was a result of long-term trauma which stunted her own recognition of the reality of these rapes, was an absolute bar to the prosecution. Majiedt concluded that it was. A unanimous judgment of the Constitutional Court rebuked Majiedt for ignoring precedent of the Supreme Court of Appeal and not placing “appropriate weight” on the nature of the offence – child rape – in coming to his decision.
In 2012 Wallis, in the Supreme Court of Appeal judgment of NM v S in which Majiedt concurred, acquitted the accused of a conviction of rape of a seven-year-old girl. The decision of the majority of the court hinged on whether the state had, beyond a reasonable doubt, proved the elements of the crime of “rape” instead of one of “indecent assault”.
It was uncontested that the accused, the complainant’s uncle, had lured her into his house, chased her friends away and given her 80 cents to buy a packet of chips. Accepting that the accused’s version of events “cannot reasonably possibly be true”, the court turned to determining what it was in particular that the state had proved.
Its hesitance in handing down a conviction of rape brought into question the reliability of the girls’ testimony and its consistency throughout the process of complaint, charge and trial. This doubt seems to have specifically been piqued by her description of her uncle as having placed his “private parts” “on” her vagina which led the court to question whether penetration – a legal requirement for rape – had occurred.
This doubt prevailed, in Wallis and Majiedt’s estimation, despite the fact that as the two judges who dissented against Wallis’ judgment noted, she had explicitly used the word “raping” to describe what had been done to her and even though the medical evidence that was presented appeared to be consistent with penetration.
Bosielo, in previous interviews for a position at South Africa’s top court has fashioned himself an activist for gender transformation, describing gender transformation in the judiciary as ‘stagnant’. Despite this he is a well know proponent of “restorative justice” and although he has clearly warned against over-leniency in cases involving the “endemic” scourge of child-rape especially those perpetrated against “defenceless and vulnerable girls [who] are raped by close relatives” one wonders when, if ever, restorative justice could justify the decrease of any rape sentence below the prescribed minimum.
Nevertheless, Bosielo, in at least one judgment, DPP v Thabete, seems to have lent credence to the fact that factors such as the victims and her families’ “willingness to forgive and reconcile with” the accused and the accused’s apology could plausibly be relevant in the reduction of a minimum sentence. We are particularly sceptical of this application of restorative justice because of the lack of voice and power that a rape victim often has in such informal processes – sometimes clandestine – which could lead to such forgiveness coming to pass.
All of these judges should be questioned carefully about their approaches in these cases. Often the question is not only about whether the judges’ decisions were “right” or “wrong” but also about how they approached the cases and framed their judgments.
Bosielo, in BS v S, strays into worrying stereotypes about whether a complainant was “sexually active” and what bearing that has on the impact of rape. He also makes inappropriate attempts at humour beginning a judgment on rape “the facts of this case are not only intriguing but appear more fictitious than real”. To a victim of rape there is nothing intriguing, humourous or fictitious about her rape or the reality of the defences raised by the accused which result in her secondary victimisation.
These examples are based on brief desktop review of these three candidates’ records on sexual violence cases which are based on a simple googling of the judges’ respective names and “rape” on well-known open access legal databases.
They exclude Kollapen, not to praise or support his nomination, but because as a high court judge with less judicial experience this simple search reveals less information on his approach to sexual violence cases which can be scrutinised.
The Mogoeng-chaired JSC needs to do even better in digging into the records of, especially male candidates, on sexual violence and their broader commitment to gender equality. At the very least, under Mogoeng’s guidance, the JSC must interrogate the candidates on these concerning aspects of their judgments.
Neither pariah nor saviour
A 2016 Mail & Guardian interview with Mogoeng invites the reader to question whether he has now moved, at least in public perception “from pariah to saviour”. Like the four male candidates for appointment the Constitutional Court, he is neither.
The truth is that women in South Africa, on a daily basis, face neither new archetypal villains nor benevolent male saviours. What they face is the ubiquitous patriarchy perpetrated by the average man and condoned by society.
What is needed is a radical transformation of gender dynamics in South Africa and the obliteration of this white supremacist patriarchy, and a judiciary and chief justice that is fully committed to contributing to this process. Likewise a JSC.
In her debut novel, We Need New Names, NoViolet Bulawayo writes in the context of a desperate escape of three young girls trying to terminate a pregnancy resulting from rape “in order to do this right, we need new names”.
Rape culture is a product of a patriarchal society which adopts the views on women and gender-based violence that Mogoeng clearly did prior to his appointment as chief justice. It is also the product of a society which produces endemic child-rape and four male candidates for judicial appointment at the Constitutional Court who may be assisting in perpetuating it through their judgments.
Mogoeng, like the four male candidates and South Africa as a whole, needs to dismantle his old ways of thinking about gender because rape culture is born in the ways we prop up masculinity and erase women’s autonomy in our daily exchanges and interactions.
Mogoeng has begun to craft a new name for himself through his jurisprudence and the proactive appointment of women as acting judges. Gender rights activists will hope that this continues and will try and ensure it does in the same way we did during his appointment. We will be watching the JSC interviews to see whether he holds his own prospective colleagues to the same standard.
If he does not, like the #RememberKhwezi protesters at President Zuma’s announcement of the local government election results in August, and the women at the front of the #FeesMustFall protests, we will not be silent.
– Luvo Nelani is a researcher at SECTION27 and she writes in her personal capacity. Tim Fish Hodgson is a former researcher at SECTION27, a former law clerk to Justice Zak Yacoob of the Constitutional Court and a masters candidate at the University of Oxford.
Main Photograph: Chief Justice Mogoeng Mogoeng at the Judicial Service Commission in Cape Town – by David Harrison