Following interviews, the JSC announced on Tuesday that the candidates it would be recommending for appointment to the Supreme Court of Appeal were KZN’s Judge Kevin Swain, Gauteng’s Judge Boissie Mbha and the Western Cape’s Dumisani Zondi. Those in the know said the result was to be expected. All are men, and all seven of the candidates shortlisted for the three vacancies were men.

A woman was in the running for the position of Judge President of the Free State Division of the High Court: Connie Mocumie. But, to quote a Business Day editorial on the subject: “Afforded the opportunity to appoint a woman as judge president of the Free State, the Judicial Service Commission (JSC) opted to appoint no one.”

Business Day did note that the decision was a difficult one, because Mocumie was a junior candidate without reported judgments to her name, despite her competence. “The JSC cannot shy away from its constitutional mandate: it must appoint judges who are appropriately qualified and fit and proper,” the editorial stated. “At the same time, it must consider the need for the judiciary to broadly reflect South Africa’s population in terms of race and gender.”

A report by UCT’s Democratic Governance and Rights Unit (DGRU) in July last year on gender transformation in the judiciary noted that there has been a great improvement in gender parity since 1994, where just one judge was female out of a total of 165. As of February 2013, there were 70 female judges out of 240. But this progress, the DGRU suggested, is not good enough. “In a country where more than 50% of the population are women, visible efforts to improve the gender dynamics have been sorely lacking and there has been no discernible consistent improvement in the gender composition of the judiciary,” the report stated.

Other concerns about the JSC beyond gender have been raised in recent years, including that the criteria it employs to appoint judges is too vague and broad, with potential candidates given inconsistent treatment in interviews. At a DGRU conference held last year, attended by judges, academics and lawyers, the example was cited of the interview of would-be Supreme Court Judge Clive Plaskett last year.

At the interview, a commissioner raised the issue that the judge had found against the government in several cases. Plaskett was then reportedly asked to cite instances when he had found in favour of the government. At the DGRU conference, the M&G reported, a participant said “the implication is that you somehow have to show equivalence – finding for and against government”.

The JSC, then, has issues beyond the representivity of its shortlists. But the issue of gender transformation among the judiciary remains a sticky one, which has arguably failed to provide the same kind of talking point as racial transformation. Writing for the Daily Maverick last October, the Open Democracy Advice Centre’s Alison Tilley suggested that at least part of the problem was the composition of the JSC itself, which is predominantly made up by men.

“Surely, it does not matter who the people are who make the decisions?” Tilley asked rhetorically. “In fact, it matters a great deal. People perceive merit more easily in those people who are like them. If someone talks like you, looks like you, and has a similar history to you, the likelihood increases that you will perceive why and how that candidate has merit.”

Tilley also suggested that more qualified women – who tend to be attorneys, magistrates and academics – need to be given the opportunity to perform as acting judges, thus giving them an advantage in the likelihood of being shortlisted as appointable to the bench.

A DGRU report on the (84% male) candidates currently under consideration by the JSC makes for interesting reading. The report does not make any recommendations for or against the appointment of candidates. It simply aims to “further a deeper analysis of the criteria in terms of which judicial appointments are made, and enable stakeholders to assess how a candidate’s judicial track record matches up to those criteria”.

As part of its report, the DGRU has analysed past judgments made by relevant candidates, and highlighted a few noteworthy ones in each case, without explicitly indicating why they have been selected. In this regard, there are a few rape judgments by male judges which are worthy of attention.

One of the judgments picked out by the report was delivered by Judge Khalipi Jacob Moloi, a candidate for the Judge President vacancy at the Free State Division of the High Court, in 2011. Moloi was considering the appeal of a man convicted of the rape of a seven-year old girl. The man had been sentenced to 18 years’ imprisonment.

Moloi agreed with lawyers for the appellant that the 18-year sentence was “shockingly inappropriate”. He wrote: “It should be noted that there was in fact no full sexual intercourse but only a slight penetration of the complainant, which would explain why she was not seriously injured. Nor was she assaulted. Besides, the influence of liquor is a factor to be taken into account. The appellant appeared to have been so drunk that he did not even notice the presence of the young witnesses and simply put on his pants in front of them.” Moloi duly reduced the sentence to 10 years.

Hearing another rape appeal in 2008, Moloi again noted in his judgment that a “factor not taken into account by the trial court is the state of intoxication the appellant was in during the commission of the offence”. Moloi reduced the sentence.

Judge Mojalefa Rampai, a nominee for the same position as Moloi, presided over a rape appeal in 2010. He reduced the rapist’s sentence on the grounds that the victim did not sustain visible external injuries. “The physical injury symbolises the measure of violence the perpetrator unleashed on a victim,” the judge wrote. “The greater the degree of severity of the rape victim’s physical injury, the greater the degree of the rapist’s moral blameworthiness”.

A 2010 appeal heard by Mr Sibusiso Msani, aiming for a position on the KZN High Court bench, set aside an appellant’s conviction for one account of attempted rape and one count of indecent assault. The complainant, Msani wrote, “seems to be somewhat of a gold-digger [sic]”. He dismissed the idea that the complainant and the appellant could have been sharing a bed without being in a “love relationship”, on the grounds that “this is the kind of stuff that can occur in movies and not in reality”. Msani also held that the complainant’s behaviour on the night in question bordered on “tacit consent or consent by conduct to sexual intercourse”.

It should be noticed that judges are given a fair amount of discretionary leeway in sentencing, and there are precedents, for instance, for alcohol as a mitigating factor in crime sentencing. We also don’t have the full context of the relevant cases to hand. However, some of the reasoning advanced – rape is not as morally bad if the victim doesn’t suffer serious physical injury; it’s improbable that a woman would share a bed with a man if not in a “love relationship” – might well be held as questionable by rape activists.

When Mogoeng Mogoeng’s candidacy for Chief Justice was under consideration, similarly, an outcry was raised about Mogoeng’s reduction of sentences for a number of child rapists on the grounds that the physical injuries the children sustained were “not serious”.

Aspirant JZN Judge Msani, meanwhile, has other problems. The JSC heard on Wednesday that Msani denied the result of a paternity test which revealed that he was 99.99% likely to be the father of three children, and may have used his magistrate’s position to delay paying maintenance. Msani reportedly maintained to the commissioners that the test results could be inaccurate, and that there were “severe misunderstandings” relating to the mother’s “conduct”. He refused to withdraw his candidacy.

Nobody is disputing that the JSC faces a difficult task. Among the constraints it faces, as the DGRU noted last year, is that “it must appoint from the candidates who make themselves available”. However, the unit stated in the same report, “we respectfully submit that fit and proper women candidates have been overlooked for appointment in the past when the requirement to ensure that the judiciary reflect broadly the gender composition of South Africa should have weighed heavily in favour of the female candidate concerned”.

The irony is that South Africa is currently glued to a case – the Pistorius murder trial – presided over by a female judge. Make no mistake, however: the Judge Masipas are still very much in the minority. DM

Read more:

• JSC: cast the net wider to find more women, in the Daily Maverick

Photo: South African Constitutional Court in Johannesburg, South Africa. (EPA/JON HRUSA)