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Gender and the Chief Justice: Principle or Pretext?

2013; Taylor & Francis; Volume: 39; Issue: 1 Linguagem: Inglês

10.1080/03057070.2013.768022

1465-3893

Elsje Bonthuys,

Law in Society and Culture

Abstract The post-apartheid South African Constitution requires that the judiciary be transformed ‘to reflect broadly the racial and gender composition of South Africa’. Because the legal system and the judiciary are the least ‘transformed’ organs of government and because of their social and political significance, the appointment of judges has become an important avenue for South Africans to continue to contest issues of race and power, usually using codes such as ‘merit’ or ‘transformation’ but sometimes descending into more open racial hostility. This article examines the debate around the appointment in 2011 of Chief Justice Mogoeng Mogoeng in which his views and judgments on gender and sexual orientation have been widely used to bolster the argument that he was not fit to be appointed. While gender and sexual orientation was raised almost universally, certain of these criticisms used gender in ways which echoed and amplified historical stereotypes of black men in general, and African male sexuality in particular. In these debates gender became a proxy for race because of the way in which discourses around gender echoed racial themes and stereotypes which have predominated in popular debates around the judiciary. In addition, ‘gender arguments’ were used to strengthen claims that professional seniority should be the main criterion in judicial appointments – a factor which would clearly favour white men in a profession in which black people and women remain a minority This placed feminists in an invidious position by using feminist arguments to justify racial privilege while subverting or ignoring more systemic gender and racial inequalities within the largely untransformed legal profession. Notes 1 See in this regard (and for Rabie's appointment) J. Dugard, Human Rights and the South African Legal Order (Princeton, Princeton University Press, 1978), pp. 28–34; E. Cameron, ‘Legal Chauvinism, Executive-Mindedness and Justice – LC Steyn's Impact on South African Law’, South African Law Journal, 99 (1982), pp. 38–75 at 41–43. *I would like to thank Liz Gunner, Natasha Erlank, Alison Todes, Sarah Charlton, Barbara Buntmann, Tessa Hochfeld, Shireen Hassim, Sanele Sibanda, Boni Meyersfeld, Cathi Albertyn, Morné Olivier and the anonymous JSAS reviewers for helpful comments and suggestions. 2 Including for instance, H. Corder, Judges at Work: The Role and Attitudes of the South African Appellate Judiciary, 1910–50 (Cape Town, Juta, 1984); R. Wacks, ‘Judges and Injustice’, South African Law Journal, 101 (1984), pp. 266–85; J. Dugard, ‘Should Judges Resign? A Reply to Professor Wacks’ South African Law Journal, 101 (1984), pp. 286–95; D. Dyzenhaus, ‘Judges, Equity and Truth’, South African Law Journal, 102 (1985), pp. 295–309; C.F. Forsythe, In Danger for their Talents: A Study of the Appellate Division of the Supreme Court of South Africa from 1950–80 (Cape Town, Juta, 1985); E. Cameron, ‘The Nude Monarchy: The Case of South African Judges’, South African Journal on Human Rights, 3 (1987), pp. 338–46; E. Mureinik, ‘Pursuing Principle: The Appellate Division and Review under The State of Emergency’, South African Journal on Human Rights, 102 (1985), pp. 60–72. 3 S v Van Niekerk 1970 (3) SA 655 (T); 1972 (3) SA 711 (A). (Juta Law Reports). 4 Constitution of the Republic of South Africa Act 108 of 1996 s174(2). 5 M. Wesson and M. du Plessis, ‘Fifteen Years On: Central Issues Relating to the Transformation of the South African Judiciary’, South African Journal on Human Rights, 24 (2008), pp. 187–213, pp. 190–91. 6 P. Hoffman, ‘Judiciary’, Business Day, 22 April 2011. 8 Justice for Hlophe Alliance, ‘Sinister Forces behind Freedom Under Law’ (6 September 2009), at http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid = 142257&sn = Detail, retrieved on 16 September 2011. 9 Justice for Hlophe Alliance, ‘Why Hlophe Should be Chief Justice: Statement in Support of the Nomination of Judge President John Mandlakayise Hlophe to be Justice and Chief Justice on the Constitutional Court’ (17 July 2009), http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid = 136650&sn = Detail&pid = 71619, retrieved on 16 September 2011, paragraphs 4.7 & 15.7. 7 See, for a description of the issues around the transformation of the judiciary, Wesson and Du Plessis, ‘Fifteen Years On’. 10 This relates to allegations of widespread bribery and corruption, including amongst senior ANC members like Mr Zuma, in a contract to purchase expensive military equipment in 1999. The issue has not yet been solved, but continues to re-surface in South African political life. 11 See A. Gordon and D. Bruce, ‘Transformation and the Independence of the Judiciary in South Africa’, 34–36, in After the Transition: Justice, the Judiciary and Respect for the Law in South Africa: A Collection of Papers from a Project on Justice and Transition, Centre for the Study of Violence and Reconciliation (2007), http://www.csvr.org.za/wits/papers/papagdf.pdf, retrieved on 29 September 2011. 12 See Wesson and Du Plessis, ‘Fifteen Years On’. 16 Heads of Argument for the First Amicus Curiae par 24, retrieved on 29 September 2011 at http://www.capebar.co.za/attachments/061_CBC%20v%20JSC%20-%205%20-%20first%20amicus%20curiae's%20%20heads%20of%20argument.pdf. 17 Heads of Argument for the First Amicus Curiae par 35. 18 Heads of Argument for the First Amicus Curiae par 36. 13 A Bar Council is supposed to be the elected representatives of the advocates (barristers) of a particular provincial Bar Association. However, some advocates, often black, young and female, have argued that some of the Bar Councils are conservative and represent the interests of the established, élite members of the profession. They have organised other bodies, like Advocates for Transformation, as more progressive alternatives to express their interests. The politics within the various Bar Associations have therefore long been fraught with tensions along racial and gender lines. 14 Cape Bar Council v Judicial Services Commission Notice of Motion and Founding Affidavit, retrieved on 29 September 2011 at http://www.capebar.co.za/attachments/061_CBC%20v%20JSC%20-%201%20-%20 founding%20papers.pdf. 15 A foundation headed by the last apartheid State President, F.W. de Klerk, who was joint recipient of the Nobel Peace Prize with Nelson Mandela for his role in ending apartheid. The foundation has as its mission ‘promoting the peaceful and negotiated resolution of disputes’ (see www.fwdeklerk.or.za/cgi-bin/cgi?cmd+ cause_dir_custom, retrieved on 27 July 2012). 19 The Cape High Court judgment in favour of the Bar Council, however, retreated to procedural terrain. The Cape Bar Council v The Judicial Service Commission 2012 (4) BCLR 406 (WCC). 20 S. Vice, ‘How do I live in this strange place?’, Journal of Social Philosophy, 41, 3 (2010), pp. 323–42. 21 Justice Alliance of South Africa v President of the Republic of South Africa and Others 2011 (5) SA 388 (CC). 22 See for a summary M. Mofokeng, G. Matlala and D. Hawker, ‘Moseneke in New Clash with Zuma’, Sunday Independent, 14 May 2012. 23 The Democratic Alliance had also lobbied for Moseneke at the time when the previous Chief Justice Ncgobo was appointed. See ‘Opposition Back Moseneke’, 18 August 2009 at www.news24.com/SouthAfrica/politics/Opposition-back-Moseneke-20090818, retrieved on 28 July 2012. 24 www.constitutionalcourg.org.za/site/judges/justicemogoengmogoeng, retrieved on 27 July 2012. 25 Eastern Cape Society of Advocates, Submissions Regarding Nomination of Justice Mogoeng Mogoeng for Appointment as Chief Justice; Cape Bar Council, Re Nomination of Justice Mogoeng for the Position of Chief Justice paras 8, 16; R. Kadalie, ‘The JSC's Apparatchiks on Display’, Politicsweb (3 October 2011), retrieved at http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid = 256016&sn = Detail&pid = 71616 on 1 October 2011. 26 Judge Leonora van den Heever, whose father had been a judge on the Appellate Division since the 1940s, was appointed to the Supreme Court in 1969. 27 Kadalie, ‘The JSC's Apparatchiks on Display’; ‘JSC Members under ANC Control Says Zille’, The Citizen, 12 September 2011, quoting the Premier of the Western Cape and leader of the Democratic Alliance, Helen Zille. 28 Kadalie, ‘The JSC's Apparatchiks on Display’. Unless they come from academic backgrounds, judges seldom have academic publications. 29 Submissions by the Johannesburg Bar to the Judicial Service Commission on the Suitability of Mogoeng J for the Position of Chief Justice at par 7; Cape Bar Council Submissions at par 19. It was well known that the son of Chief Justice Chaskalson had regularly appeared before a court on which his father sat as judge. No calls were made for Justice Chaskalson to recuse himself or to resign. 30 See NADEL, Submissions of the National Association of Democratic Lawyers (NADEL) on the President's Nominee for the Position of Chief Justice – Justice Mogoeng Mogoeng, retrieved on 12 September 2011 at http://constitutionallyspeaking.co.za/nadel-submission-on-justice-mogoeng/; Submissions by the Johannesburg Bar to the Judicial Service Commission; Cape Bar Council Submissions. 32 Submissions by the Johannesburg Bar to the Judicial Service Commission at note 10. My emphasis. 31 2011 (3) SA 274 (CC). 33 For a more nuanced criticism, arguing that Judge Mogoeng should either resign as Pastor of the Church or decline the nomination, see P. De Vos, ‘The Difficult Choices Facing Chief Justice Mogoeng’, 9 September 2011, http://constitutionallyspeaking.co.za/the-difficult-choices-facing-chief-justice-mogoeng/#comment-52240, retrieved on 12 September 2011. 34 See for instance H. Ward, ‘“I'm not gay M'Kay”: Should Falsely Calling Someone a Homosexual be Defamatory?’, Georgia Law Review, 44, 3 (2010), pp. 739–68; P.S. Arend, ‘Defamation in an Age of Political Correctness: Should a False Public Statement that a Person is Gay be Defamatory?’, Northern Illinois University Law Review, 18, 1 (1997), pp. 99–114; R.M. Fogle, ‘Is Calling Someone Gay Defamatory: The Meaning of Reputation, Community Mores, Gay Rights and Free Speech’, Law and Sexuality: Review of Lesbian and Gay Legal Issues, 3 (1993), pp. 165–200. 35 De Vos, ‘The Difficult Choices Facing Chief Justice Mogoeng’. 36 NADEL Submissions; Johannesburg Bar Council Submissions; Cape Bar Council Submissions; N. Fritz, 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), http://www.constitutionallyspeaking.co.za/submission-on-mogoengs-handling-of-child-sexual-abuse-cases/, retrieved on 3 October 2011. The National Association of Democratic Lawyers (NADEL) is an associated of black law professionals including advocates and attorneys which ‘actively seek[s] to nominate judicial candidates to increase the representation of black and female judges’, www.lawsoc.co.za/default.asp?sl = &id+1972, retrieved on 27 July 2012. 37 COSATU, Submission on the Nomination of Justice Mogoeng Mogoeng for the Post of Chief Justice (3 September 2011), http://www.cosatu.org.za/docs/subs/2011/submission0905.html, retrieved on 5 October 2011. COSATU is a federation of labour unions which forms part of a ‘governing alliance’ with the ruling ANC. COSATU's views are sympathetic to the rights of workers and often socialist or left-leaning in nature. 38 ‘Ramphele Fears Gender Views’, City Press, 11 September 2011. Dr Ramphele was a respected anti-apartheid activist who is currently a prominent academic. 39 People Opposing Woman Abuse (POWA), quoted in ‘Stop Mogoeng from Being Chief Justice of SA’, http://www.osisa.org/law/south-africa/stop-mogoeng-being-sa-chief-justice, retrieved on 5 October 2011; Sisonke Msimang, quoted in ‘Sisonke Msimang: Will the Real ANC Women's League Stand Up?’, Business Day, 2 September 2011', Section 27, Submission to the JSC on Justice Mogoeng Mogoeng, http://www.section27.org.za/2011/08/26/submission-to-the-jsc-on-justice-mogoeng-mogoeng/, retrieved on 5 October 2011; Women's Legal Centre, Re: Consultation Process of the JSC on the Suitability of Justice Mogoeng Mogoeng for Appointment as Chief Justice, http://www.dgru.uct.ac.za/usr/dgru/downloads/Womens%20Legal%20Centre.pdf, retrieved on 5 October 2011. 40 ‘Opposition to Mogoeng Really Aimed at Zuma – Blade Nzimande’, Politicsweb, http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71639?oid = 254818&sn = Detail&pid = 71639 http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71639?oid = 254818&sn = Detail&pid = 71639, retrieved on 5 October 2011. 41 Law Society of South Africa, National Survey of the Attorneys Profession, Final Report (17 September 2008), retrieved from http://www.lssa.org.za/upload/National_Survey_of_the_Attorneys_Profession_2008.pdf on 25 October 2011 at vi–vii. 42 See for instance Z. Venter, ‘Race Row Threatens to Split Pretoria Bar’, IOL (31 March 2006), at http://www.iol.co.za/news/south-africa/race-row-threatens-to-split-pretoria-bar-1.271493, retrieved on 25 October 2011; ‘Advocates Split Avoided’, Legalbrief Today (1 August 2005), at http://www.legalbrief.co.za/article.php?story = 20050801085934526, retrieved on 25 October, reporting on a threat by Advocates for Transformation to split from the Johannesburg Bar because of racism and sexism within the Bar; ‘Racism in the Legal Fraternity – The Qunta View’, Legalbrief Today (21 February 2005), at http://www.legalbrief.co.za/article.php?story = 20050221092940982, retrieved on 25 October 2011. 43 See for instance ‘Cape Bar Transformation Move Welcomed’, Legalbrief Today (2 May 2006), at http://www.legalbrief.co.za/article.php?story = 2006050208122648, retrieved on 25 October 2011; ‘The Cape Bar's Model Policy on Fair and Equitable Briefing Patterns’ (22 August 2006), at http://www.capebar.co.za/attachments/057_The%20Cape%20Bars%20Model%20Policy%20on%20fair%20briefing%20patterns.pdf, retrieved on 25 October 2011. The Johannesburg Bar Council has a transformation committee, while the General Council of the Bar of South Africa professes a commitment to ‘ensuring that the Bar is representative of all sections of the South African population’, at http://www.sabar.co.za/legal-career.html, retrieved on 25 October 2011. 44 Of course the South African legal profession is not unique in this respect. See for instance the chapters in U. Schultz, and G. Shaw (eds), Women in the World's Legal Professions (Oxford, Hart Publishing, 2003). 45 C. Albertyn, ‘Defending and Securing Rights through Law: Feminism, Law and the Courts in South Africa’, Politikon, 32 (2005), pp. 217–37 & pp. 226–27; M. O'Sullivan and C. Murray, ‘Brooms Sweeping Oceans? Women's Rights in South Africa's First Decade of Democracy’, Acta Juridica (2005), pp. 1–41; R. Krüger, ‘Sex Work from a Feminist Perspective: A Visit to the Jordan Case’, South African Journal on Human Rights, 20 (2004), pp. 138–50; G. Carpenter, ‘Of Prostitutes, Pimps and Patrons – Some Still More Equal than Others’, South African Public Law, 19 (2004), p. 231; D. Meyerson, ‘Does the Constitutional Court of South Africa Take Rights Seriously? The Case of S v Jordan’, Acta Juridica (2004), pp. 138–54; E. Bonthuys, ‘Women's Sexuality in the South African Constitutional Court: Jordan v. S.’, Feminist Legal Studies, 14 (2006), p. 391; E. Bonthuys, ‘Institutional Openness and Resistance to Feminist Arguments: The Example of the South African Constitutional Court’, Canadian Journal of Women and the Law, 20 (2008), pp. 1–36. 46 Jordan v S 2002 (6) SA 642 (CC). 47 Masiya v Director of Public Prosecutions (Pretoria) 2007 (8) BCLR 827 CC. 48 Volks NO v Robinson 2005 (5) BCLR 446 (CC). 49 Jordan v S 2002 (6) SA 642 (CC) issued majority judgment; Volks NO v Robinson 2005 (5) BCLR 446 (CC) separate concurring judgment. 50 ‘Appeal Court Candidate in Rape Furore’, Mail & Guardian, 9 December 1994. 51 Personal communication with Prof. Cathi Albertyn, 26 July 2012. 52 F. Rabkin, ‘JSC Interviews: Tough Call to Make on Who will be Appointed’, Business Day, 16 April 2012. 53 C. du Plessis, ‘Judicial Independence Features at Judges’ Interviews', City Press, 17 April 2012. I thank Morné Olivier for bringing this report to my attention. 54 For instance, S. Robinson, ‘Jacob Zuma is a Sex-Obsessed Bigot with Four Wives and 35 Children. So Why is Britain Fawning over this Vile Buffoon?’, MailOnline, 4 March 2010, at http://www.dailymail.co.uk/debate/article-1254748/Jacob-Zuma-sex-obsessed-bigot–Britain-fawning-him.html, retrieved on 25 October 2011; T. Timse, ‘Zuma's Lovechild Provokes Debate on Polygamy in South Africa’, The Telegraph, 4 February 2010. 55 My thanks to Sanele Sibanda for pointing out the link between president Zuma and stereotypes of African male sexuality. 56 D. Posel, ‘Sex, Death and the Fate of the Nation: Reflections on the Politicization of Sexuality in Post-Apartheid South Africa’, Journal of the International African Institute, 75, 2 (2005), pp. 125–53, p. 128; N. Erlank, ‘ANC Positions on Gender, 1994–2004’, Politikon, 32, 2 (2005), pp. 195–215, p. 205. 57 M. Chanock, The Making of South African Legal Culture 1902–1936: Fear, Favour and Prejudice (Cambridge, Cambridge University Press, 2001), pp. 72 & 277; M. Chanock, ‘Human Rights and Cultural Branding: Who Speaks and How’, in A. An Na-Im (ed.), Cultural Transformation and Human Rights in Africa (London, Zed, 2002), pp. 38–67. 58 Posel, ‘Sex, Death and the Fate of the Nation’, pp. 142–44. 59 S. Hassim, ‘Democracy's Shadows: Sexual Rights and Gender Politics in the Rape Trial of Jacob Zuma’, African Studies, 68, 1 (2009), pp. 57–77, pp. 62 & 71. 60 S. Hassim, ‘Democracy's Shadows: Sexual Rights and Gender Politics in the Rape Trial of Jacob Zuma’, 68, 1, African Studies (2009), pp. 57–77, p. 61. 61 Chanock, ‘Human Rights and Cultural Branding’, pp. 42, 45. 64 Walker, ‘The Women's Suffrage Movement’, p. 343. 62 G. Geisler, Women and the Remaking of Politics in Southern Africa (Uppsala, Nordiska Afrikainstitutet, 2004), chapter 3; S. Hassim, Women's Organizations and Democracy in South Africa: Contesting Authority (Madison, University of Wisconsin Press, 2006), chapter 1. See also, D. Lewis, ‘South Africa, African Feminism and the Challenges of Solidarity’, in G. Ruiters (ed.), Gender Activism: Perspectives on the South African Transition, Institutional Cultures and Everyday Life (Grahamstown, Rhodes University Institute of Social and Economic Research, 2008), pp. 56–71. 63 C. Walker, ‘The Women's Suffrage Movement: The Politics of Gender, Race and Class’, in C. Walker (ed.), Women and Gender in Southern Africa to 1945 (Cape Town, David Phillip, 1990), pp. 334–37. 69 Lentin, ‘What Happens to Anti-Racism’, pp. 166–67. 65 L.M. Alcoff, ‘What should white people do?’, Hypatia, 13, 3 (1998), pp. 6–7, pp. 6–26. 66 Alcoff, ‘What should white people do?’, p. 8. 67 A. Lentin, ‘What Happens to Anti-Racism when We are Post-Race?’, Feminist Legal Studies, 19 (2011), pp. 159–68. 68 Lentin, ‘What Happens to Anti-Racism’, pp. 163–64. 70 Lentin, ‘What Happens to Anti-Racism’, p. 163. 76 Vice, ‘How do I Live in this Strange Place?’, p. 329. 71 S. Vice, ‘How Do I Live in This Strange Place?’, Journal of Social Philosophy, 41, 3 (2010), pp. 323–42. 72 E. McKaiser, ‘Hoe Moet “Whiteys” in die Vreemde Plek Leef?’, Die Burger, 25 June 2011. 73 A prominent anti-apartheid cleric who subsequently became the Anglican Archbishop known for welcoming gay and lesbian believers into his congregation and even conducting same-sex marriages. 74 M. Williams, ‘Tutu Calls for Wealth Tax for Whites’, Cape Argus, 12 August 2011; ‘Editorial: Guilt Tax Offers No Solution’, Business Day, 16 August 2011. 75 ‘Tutu's White Tax is Racist’, IOL News, 13 August 2011, at http://www.iol.co.za/news/politics/tutu-s-white-tax-is-racist-1.1117004, retrieved on 24 October. 77 S. Sullivan, Revealing Whiteness: The Unconscious Habits of Racial Privilege (Bloomington, Indiana University Press, 2006). 78 M. Fry, ‘White Woman Feminist’, in C.M. Koggel (ed.), Moral Issues in Global Perspective: Human Diversity and Equality, 2nd edn. (Toronto, Broadview Press, 2006), pp. 116–28, p. 120. 79 Fry, ‘White Woman Feminist’, p. 117. 80 M. Fry, ‘White Woman Feminist’, in C.M Koggel (ed.), Moral Issues in Global Perspective: Human Diversity and Equality, 2nd ed (Toronto, Broadview Press, 2006), p. 121. 81 Vice, ‘How Do I Live in this Strange Place?’, pp. 335–37. 82 Vice, ‘How Do I Live in this Strange Place?’, p. 335. 83 Fry, ‘White Woman Feminist’, p. 121. 84 See the text at footnote 6. See also Kadalie, ‘The JSC's Apparatchiks on Display’: ‘Zuma's intention was to thrust greatness on an obviously mediocre affirmative action candidate, and it partly explains the nomination. Determined to stick the knife into the Deputy Chief Justice, he deliberately wanted someone junior who was not up to the task and who would forever be beholden to him’. 85 Chanock, The Making of South African Legal Culture, pp. 127, 130 & 529. 86 Chanock, ‘Human Rights and Cultural Bonding’, p. 46.