Hands off Judge Masipa: Her womanhood and blackness have nothing to do with it

By Thato Magano (@pothaeto)

That Judge Masipa is a woman and is black and a black South African should not really be our focus but it is understandable why that is. She is not the problem or the enemy here; the exercise of law is the enemy of justice and fairness. In her insistence to be loyal to her office, she is a towering beacon for excellence overall, and specifically black excellence as our competence continues to be under a magnifiying glass held by those who have pre-determined the value of our intellect by virtue of our race.

Illustration by Thandiwe Tshabalala

Today, we reach the apex of months of legalese between the National Prosecuting Authority of South Africa, on behalf of the Republic (read: We the people) and a young Afrikaans man accused of murdering his girlfriend, as the judge will deliver sentencing, having found the young man not guilty of murder but rather culpable homicide, declaring that there was no willful intention on the part of the young man to kill (murder) the person he was shooting on that fateful morning.

When Judge Thokozile Masipa was announced as the judge to oversee the case, I was conflicted between celebrating that a black, female judge was to preside over a case of this magnitude, demonstrating how far we have come as a country or to instinctively be inclined towards protecting her dignity from what I was sure would be the onslaught of attacks regarding her competence to legitimately adjudicate the matter before her, given that she is black and we are in South Africa. I eventually settled on seeing this as a positive thing by virtue of the former.

Since the trial began earlier this year, there have been tacit insinuations around her competency but none have been as virulent as after she handed her judgement, with media reports suggesting she had to step up security as her life was being threatened. Opinionista’s published pieces even before she had concluded reading out the judgement and more analyses have ensued since then.

Expecting her to understand and see that justice needed to be served, even I was among those unconvinced of her judgement in its initial two days, my thoughts clouded by pseudo-legalista’s offering opinions on every available platform. But I soon sought other sources and legal opinions that have helped me expand my scope of the understanding of the application of law and how Judge Masipa could have arrived at her judgement.

Of all the attacks on the judge and her person, none have troubled me more than those that seem to suggest that, first, as a black person, second, as a woman and third as a black South African, she should have been influenced by emotion upon deciding the judgement in this case, as is the case in the article penned by feminist economist Liepollo Pheko and academic Tinyiko Maluleke, ‘Judge Masipa, Oscar, race and gender’ published last week in The Sunday Independent. 

The authors accuse the judge of having been blind to the following issues in adjudicating this case: the power dynamics of unequal gender relations and the racist logic of the young man’s defence. Astonished they ask: “But how can a black woman judge in South Africa miss these blatant nuances and motifs in a rather typical South African story of intimate murder?” They further refer to “her shocking culpable homicide judgement instead of the widely expected murder verdict on the Pistorius case”.

Having read the article numerous times, I have grown more disturbed by the insinuations made by the authors to Judge Masipa’s inability to ‘get the dynamics’ at play in this specific case, which they refer to as a “classic case of domestic gun violence, especially but not exclusively in the white community”.

These accusations are challenging as they assume an irrational reading and application of the law on the part of the judge. Yes, as a society we want justice to be served. We want the prosecution to appeal to the judge’s sense of justice, swaying her to be subjective in serving justice. However, I have grown to understand that it’s not that easy.

What Judge Masipa did not do was follow the application of justice as was expected simply because she was a black and a woman presented with a case where evidence put forth by the state suggested domestic violence and evidence by the defence, implicated a black man as the intruder.

In her culpable homicide judgement, she applied the law according to the strictest limitations that she can apply it within. She followed the law, the binding rules of conduct MEANT to enforce justice and prescribe obligation as she knows and has experienced over the years presiding over similar matters; deciding on the facts in navigating the delicate balance of probabilities and technicalities as allowed by the South African common law (Roman-Dutch Law).

And I believe that this is the centre of our discontent as a nation and why we have chosen to focus that angst at Judge Masipa. In her judgement and choosing to be loyal to the function bestowed to her by the judiciary and her office, she has exposed how the legal system in our democratic South Africa does not hold the JUST interest of those who are powerless or under- resourced. She is by far not the first judge to do so; however, she is confronted with a unique set of circumstances where so much has been at stake in the court of public opinion and perception.

In a continued battle to have justice that affords the victims their dignity served, we encounter a system of checks and balances that ultimately favours the one who can most masterfully manoeuvre these technicalities to their benefit.

The world over, legal systems are designed with the intent to uphold the ideals of justice through fair administration of the law; however it is still plausible to have unjust laws. I would even venture to say that for South Africa especially, the entire legal system is unjust as it perpetually serves the interest of the well versed in legalese, who are in the majority the perpetrators at the expense of the victims, who are in the majority black, and poor at that.

That Judge Masipa is a woman and is black and a black South African should not really be our focus but it is understandable why that is. She is not the problem or the enemy here; the exercise of law is the enemy of justice and fairness. In her insistence to be loyal to her office, she is a towering beacon for excellence overall, and specifically black excellence as our competence continues to be under a magnifiying glass held by those who have pre-determined the value of our intellect by virtue of our race.

The biggest pity of it is given the divisive nature of her office and this judgement in particular, we have been distracted from celebrating this. We have continued to dissect how her race and her gender should have played a role in her executing her duties, foregoing all rationality as prescribed by her office and letting herself be taken by inconclusive arguments and improbable theories from both sides of this case.

No, Judge Masipa is not our enemy. Her race, gender and nationality have nothing to do with it. The system of law has made her complicit. It is the legal system and the application of law that should continue to be on trial here.

 

In a previous life, Thato Magano was a strategy consultant and marketing dude at Cadbury’s and has since moved to crafting alternative entrepreneurial spaces to explore his various talents. He is a transitional griot trapped in the comforts of saxon realities and longing for the freedoms of civilisations past. A liker of things and yet prisoner to none. A revolutionary non sequitur! Motho wa Batho fela! 

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