The myth of white judicial competence II

Judging by the volume of responses to my last article, “Will the JSC debunk the myth of white judicial competence?” I surmise that South Africans are ready to confront the myths and deep-seated prejudices they have been harbouring for the past 15 years. The point missed by most morons is precisely this: judicial incompetence knows no colour and the attempt to link affirmative action appointments with alleged incompetence in the judiciary is bound to fail. I started with the case of a “skilled, experienced” white female jurist, Lewis and went about searching for empirical evidence of the alleged incompetence of black affirmative action appointees. I was shocked to discover that an overwhelming majority of the “horror” judgments were in fact authored by white judges.

I came across a UCT study which also identified a number of such horror judgments: Judge Jeremy Pickering who sentenced a man to 15 years year for raping his six-year-old daughter. The judge said the man acted “on the spur of the moment” which means the culprit suddenly got horny and was overcome by his lascivious, bestial desire to brutalize his defenceless 6-year-old daughter. I am sure that this illustrious Judge Pickering was not one of these incompetent black affirmative action appointees Lewis lambasted so mercilessly. But in Lewis’ world which is increasingly being dominated by media sound bites and spin-doctoring, Pickering can be substituted for an incompetent and unskilled black judge just to make the coordinated attacks on affirmative action more plausible.

Another judge identified in the study was Visser who sentenced Ntuli to eight years, with four years suspended, for raping a 14-year-old girl twice. In the 2003 sentencing, Visser put the blame squarely on the shoulders of the victim — he said the victim, “being the pretty girl she is, might have brought out the animal in the accused“. That was a classic blame the victim judgment that will go down in the annals of history of South Africa’s jurisprudence. That too will soon be hijacked by those with a revisionist agenda and Visser, a white Afrikaner, will soon have his race deftly reclassified as “African” and affirmative action appointee simply to vilify blacks and ANC policy.

In another case, Acting Justice Beverly Franks did not sentence two accused to life imprisonment for stabbing a woman in the face, robbing and raping her, because they “showed mercy by not killing her“. In other words, the cold-blooded and cowardly criminals did the victim a favour by raping but not murdering her! This is yet another example of the incompetent black judges unleashed upon the unsuspecting public and that speaks volumes about the failure of affirmative action.

To complete the picture, there was a public outcry in 1999 when Judge John Foxcroft sentenced a father to seven years for raping his 14-year-old daughter, saying: “The harm of the rape was limited to the victim and not society.” The State appealed and the sentenced was increased to 12 years. For the purpose of trashing the ANC-led government and for the purpose of besmirching the reputation of black judges, Foxcroft must be cited as another example of black incompetence.

Of the seven judges identified in the UCT study (including Lewis), only one, Judge Musi, was African. He sentenced a man to an effective 13 years for raping five girls under the age of 16. He said the rapist “intended no harm other than to satisfy his sexual lust“. It is downright despicable, intellectually dishonest and racist for anyone to adroitly shift the blame for the “horrific” judgments to Africans or to invent a causal connection between affirmative action and the judgments rendered by our judges while ignoring the fact that the so-called “worthy”, experienced and skilled white judges make similar or even worse judicial rulings. The Foxcroft decision in particular is emblematic of the hypocrisy of white liberals on the judiciary and appointments. In the course of his ruling, Foxcroft referred to a previous case involving a judgment by Judge Dennis van Reenen in 1996. In 1995 both van Reenen and Foxcroft heard, on appeal, a case of a man who raped his three daughters over many years. A magistrate had sentenced the man to 11 years imprisonment. Van Reenen and Foxcroft reduced the sentence to six years on the grounds that the culprit did not pose a serious threat to society since his crime was limited to his family thereby propagating the myth that rape or sexual assault within the family is harmless and involves no injury to society. Foxcroft’s ruling came after parliament passed the 1997 Criminal Law Amendment Act which changed drastically the discretion of judges in sentencing rapists who rape underage girls. The law required judges in such cases to impose a mandatory life sentence for rapes of girls under 16 except if “substantial and compelling circumstances exist.”

After Foxcroft’s ruling, there were rumours that the Parliamentary Joint Monitoring Committee on the Improvement of Quality of Life and Status of Women sought to hold a hearing with Judge Foxcroft. Predictably, the white liberal advocates and academics denounced the summoning of the judge to Parliament as unprecedented and as undermining the rule of law. They howled that the normal procedure, if anybody is dissatisfied with the judgment, is to use the mechanism of appeal. In other words, white judges are allowed to make errors which are susceptible of being corrected through the normal appellate review mechanisms. But black judges must be personally attacked and denounced as incompetent jurists who owe their undeserved judicial appointment to reverse racism and affirmative action.

The UCT study also contains many examples cited of magistrates and judges blatantly ignoring the law. These included a 10-year sentence imposed on a 23-year-old man by Bloemfontein High Court Judge Kotze for repeatedly raping two 15-year-old girls. This, the judge argued, was because the girls were not virgins and one had been “naughty” in having had sex with someone else two days before. One could recount numerous examples of such warped views of white judges (including Lewis herself) who have issued bizarre and downright perverse rulings from the bench. And yet, some people seem to have reserved their venomous rhetoric and contempt only for those judges who are perceived to be affirmative action appointees.

Advocate Ramatlhodi, a member of parliament’s justice committee and a newly appointed member of the JSC recently expressed his outrage at a ridiculously lenient sentence imposed on a rapist by a white Carletonville magistrate, JF Steyn. First the synopsis of the facts and ruling in the case. The rape occurred on April 21, 2008 while the victim was hitchhiking to her workplace. Molefe offered the woman a lift, then pulled off the road and raped her. Molefe was arrested on the same day and was later convicted. Molefe appealed against his conviction and his four years and six months sentence, and was released on bail. After his release, Molefe allegedly committed nine other rapes and four attempted rapes, as well as robbery with aggravating circumstances, allegedly using the same modus operandi. When his application was dismissed in early July 2009. He appeared before Magistrate Steyn and got the ludicrously lenient sentence instead of the prescribed life sentence — a clear slap in the face of the legislature. Echoing Lewis’ absurd statements and myth about rape victim having suffered no serious injuries, Steyn continued as follows: “There is a prescribed sentence, but the court cannot find compelling circumstances as there were no physical injuries. The complainant is a grown-up. The weapon was only wielded. It was not used to inflict injuries.” Steyn said the court had taken into account that Molefe had raped a hitchhiker at knife-point. The sexist and class-based prejudice is apparent from the very onset — good and virtuous women do not hitch-hike alone or accept rides from strange men according to Steyn. His assumptions about the life-style of the victim enter his decisional calculus. The myth that the only injuries that matter in cases of rape victims are “physical” as opposed to the traumatic psychological injuries has been solidified in our jurisprudence precisely because no one scrutinized the erroneous approach when it was first introduced by the likes of Lewis. The sentence effectively trivialises rape and ignores the victim’s suffering. It also highlights the incompetent misapplication of the sentencing principles based on class and sexist prejudice which is rapidly becoming a constant feature of our court rulings. The golden rule in sentencing is this: the court is duty-bound to balance the interests of the accused against the interests of the community and the seriousness of the crime. In this case and others, the judges routinely allow the interests of the accused to outweigh all other considerations. Steyn, like Lewis seems blissfully ignorant of the effect a knife-wielding assailant can have upon his victim — it can have the same traumatic paralyzing effect and be just as devastating as a physical injury. The myth that rape is not an injury or “serious” one is shared by many judges as evidence shows here. Steyn knew or should have known that an assault on the victim is always an aggravating and not mitigating factor in sentencing the sentence. Steyn showed a typical sympathy for the criminal: “You are also well educated and have dependants. It’s necessary to get you back into society as soon as possible.” Again, his focus is on the future of the criminal and he does not ponder the consequences of the traumatic rape and its effect on the victim’s future.

In reaction to the travesty, justice committee chairman advocate Ngoako Ramatlhodi vowed to launch an investigation into Molefe’s sentence and promised to involve Minister of Justice Jeff Radebe. Ramatlhodi said women were constantly becoming victims of patriarchy. “Women are getting a raw deal in our justice system. Women are perceived to be properties of men. The justice system is lenient to men who commit these crimes.” He said the committee and the minister would need an explanation from the court, through the department’s director-general, advocate Menzi Simelane. This ad hoc response will never get to the root of the problem — the ANC must free itself from the assumption that white judges and magistrates who are not affirmative action appointees are competent and are not responsible for the egregious errors made in our courts. They must also free themselves from the fallacy and myth that accusations against black judges are free from racism and selective treatment. Neither Ramatlhodi nor Radebe reacted to a July 2009 ruling when a black man, Mr Geleba was awarded R4 500 by the Equality Court and white magistrate Johan Herselman was convicted of racist acts. Speaking shortly after the verdict, Mr Geleba said: “The verdict will teach Herselman a lesson to refrain from looking down on blacks as ‘baboon’ every time they appear before him in his court,”. Bloemfontein chief magistrate Mziwonke Hinxa who presided over the hearing also made the following observation: “The respondent in this matter is a magistrate who at all material times is expected to uphold and promote the value of human rights. In my view his utterances failed to promote this.” None of the white retired judges and advocates uttered a single word of condemnation of this white magistrate — they did not demand his suspension while the case was pending. Contrast this racist conspiracy of silence with the treatment Hlophe received.

Ramatlhodi and Radebe, who are both JSC members, must use this case along with all previous cases discussed here to educate their JSC colleagues. The rubbish advocated by Kriegler, Lewis and others about the horrors of affirmative action appointments must be exposed and be rejected emphatically. The myth that whites enter the JSC interview room with a presumption of competence whereas blacks are only affirmative action candidates who defensively have to prove their worth must be abandoned. This new approach is the centrepiece of the battle for the heart and soul of the South African judiciary.