All week long, the Judicial Service Commission has wrestled with transforming the legal fraternity, paying careful attention to women candidates hoping to be appointed to three high court divisions this week.
But on Wednesday a mother’s emotional plea to be transferred for the sake of her children was denied, bringing into doubt the JSC’s commitment to gender equality.
In an emotionally charged day, the Eastern Cape judge asked tearfully to be transferred because her husband is on trial and her three minor children live in another town.
The JSC is interviewing candidates for positions in three high courts, the labour court and the water tribunal. On Wednesday, interviews were held for positions on the Eastern Cape bench.
The fourth candidate, already a judge in Mthatha, applied for the vacancy to be transferred to Bhisho. She cannot be named to protect the identities of her children. The JSC did not appoint anyone and the vacancy will be advertised again.
It is rare for the JSC to agree to a transfer within one division. This is partly to prevent judges leaving rural courts, as pointed out by one of the new members of the JSC on Wednesday, one Julius Malema, the leader of the Economic Freedom Fighters.
But the judge said on Wednesday that her family situation had changed since her appointment and that circumstances now made living in Mthatha unbearable.
Her husband was arrested for rape in November last year. The judge told the JSC on Wednesday that the arrest, which took place in front of her children, had left them extremely traumatised.
The judge said her children had to be in East London for various reasons and she wanted to be transferred to the high court in Bhisho to be closer to them.
Mathole Motshekga, another of the new members of the JSC, was concerned about the commission questioning a “traumatised” woman. The judge cried throughout the proceedings.
The judge said her children had not been coping well since their father’s arrest. Her eldest child was about to write his matric examinations and her nine-year-old was severely traumatised.
She said her three-year-old has a mental disability and requires special schooling in East London. The judge has only recently stopped breastfeeding the child. Normally, she would travel to and from Mthatha with her child and a nanny but, while hearing a case involving armed robbery, the judge began to receive death threats and she said it was no longer safe for her child to accompany her.
In the meantime, she told the commission, she had “survived” by swopping shifts with her colleagues on the bench. Judges in the Eastern Cape often rotate between seats.
Chief Justice Mogoeng Mogoeng told the woman repeatedly on Wednesday that the commission did not want to upset her but that it was necessary to question her reasons for needing the transfer.
A question from the chairperson of the National Council of Provinces, Thandi Modise, provoked a charged response from the candidate. The judge had raised the fact that her nine-year-old did not want to change schools. “That will not get you any sympathy from us,” Modise said.
The judge retorted that the broader issue was that her child was severely traumatised by her father’s arrest and that uprooting her from her present school would be extremely disruptive for the child.
One commissioner suggested that her children be sent to boarding schools.
Making the announcement that the JSC had decided not to appoint anyone to fill the Eastern Cape vacancy, advocate Dumisa Ntsebeza SC was asked about the message the decisions sent to prospective female candidates.
Three women were recommended by the JSC this week to fill vacancies in the Free State and the Western Cape. The candidates were grilled about their commitment to the meaningful transformation of the bench.
Ntsebeza said the reason for the decision not to fill the vacancy, and therefore not to grant the judge her requested transfer, was that she did not show “sufficient cause”.