By Prof. Penelope Andrews
Professor of Law, New York Law School and IAWL Board Member
In 2006, Jacob Zuma, during a trial in which he was accused of rape, was at the receiving end of a strong rebuke from a white male judge for having unprotected sexual intercourse with someone who was not his regular partner — in short, for showing contempt for women. In response, Zuma was rather submissive and repentant. He was acquitted of the charge. Nearly 20 years later, he receives another strong admonishment from a judge for showing contempt for the rule of law. This time it is a black female judge, backed by six of her colleagues.
Instead of deference or repentance, we witness a backlash. Acting Chief Justice Sisi Khampepe, a judge with an impressive legal pedigree, is at the receiving end of a vitriolic sexist outburst, with the judgment that she penned being described by the Jacob Zuma Foundation as “judicially emotional and angry”. Such a response — to attach emotional motivation for the actions or words of professional women — is an illustration of textbook misogyny. It reduces women to emotional beings and reinforces the trope about women as hysterical or irrational, devoid of intellect.
Attacks on judges are hardly new in South Africa. Attacks on the judiciary started shortly after Zuma became president in 2008, with Gwede Mantashe, then secretary general of the ANC, referring to judges as “counter-revolutionaries”. Others, such as the Economic Freedom Fighters’ Julius Malema, have been quite adroit at constant attacks against the judiciary while frequently approaching the courts for adjudication on a range of matters, ironically dependent on judges to carry out their adjudicatory functions without fear or favour.
Judges should not be beyond reproach. But criticism of judges should not be ad-hominem and personal. They ought to be directed at and located in decisions that judges make after a deliberative process, which are justified through judicial reasoning and analysis and which are explained in the judgment. This is exactly what Khampepe and the majority did in the decision of Jacob Gedleyihlekisa Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture & Others.
Even if one does not agree with their decision, criticism should be directed at the reasons provided. Personal attacks on judges, as opposed to critiques of their judgments, serve no purpose other than demeaning the judiciary, an important pillar of South Africa’s hard-fought and fragile constitutional democracy. Such attacks may also result in the rule of law itself being undermined.
Attacking Khampepe’s decision as emotional or angry is a standard tactic of those men who have a particular view of women as passive and deferential. For them, independent and assertive women are particularly objectionable. An independent and smart female judge, deliberating on the fate of a man who holds those views, induces an extraordinarily strong reaction from the man.
We should not forget the vilification of Fezekile Ntsukela Kuzwayo (Kwezi) during the Zuma rape trial and the hate and contempt levelled at her, including effigies of her that were burnt outside of court. What the Zuma foundation appears to forget is that it is dealing not with, as then, a vulnerable woman, who was unable to protect herself and forced into exile, but a powerful woman, the acting chief justice, and the ultimate symbol of the rule of law in South Africa. This is a misstep by the former president and his enablers — and they will be the ultimate losers.
* This article first appeared in the Mail and Guardian and is cross-posted here with the permission of the author.