'Judge judges on rape findings'

05 April 2016 - 02:23 By Aarti J Narsee

Judges contending for the two positions at the Supreme Court of Appeal have been slated for deviating from minimum sentences in their rape findings. The Judicial Service Commission started interviewing candidates in Cape Town late last night. Three of the seven applicants are women.They are judges Elizabeth Baartman, Trevor Gorven, Francis Legodi, Pieter Meyer, Baratang Mocumie, Dhaya Pillay and Christiaan van der Merwe.Rape carries a minimum sentence of 15 years' imprisonment.In addition to reducing rape sentences, some of the male candidates have made controversial remarks regarding victims.Contentious comments include:Judge Gorven finding that if the minimum sentence was imposed on a correctional services official, an "injustice would result" because the man, who attempted to murder his partner, had admitted that he was guilty;In a case in which a 10-year-old was raped, Judge Legodi said compared with other victims the child was a "less affected and traumatised victim" and that her performance at school was not "seriously affected". The man's sentence was changed from life imprisonment to 10 years each for two rapes;Legodi, in another rape judgment, said: "In coming to the sentence, I don't think that this rape was one of the worst. Minimal force was used.Ten years' imprisonment in my view is a bit severe"; andJudge van der Merwe said: "There was no serious or lasting mental injury to the complainant." He concluded that life imprisonment was "disproportionate" and "unjust" for the rapist due to these circumstances.Despite the concern raised about judgments, none of the candidates thus far were questioned about deviating from minimum sentencing.Late last night the JSC said that Judge Legodi had withdrawn from the running.Alison Tilley of Judges Matter, a group monitoring the judges' interviews, said a key question that should be posed to candidates was: "When is a departure from minimum sentences for rape appropriate?"Sanja Bornman, attorney for the gender equality division at Lawyers for Human Rights, said the law allowed deviation from the minimum sentencing framework only when there are "substantial and compelling" reasons to do so."There are several factors that may never be considered substantial and compelling, including the complainant's previous sexual history, an apparent lack of physical injury to the complainant, the accused's cultural or religious beliefs about rape and the relationship between the accused and the complainant," said Bornman."It is critical for the JSC to consider candidates' rape judgments, for the gender transformation of the judiciary."In his September 2011 interview, Chief Justice Mogoeng Mogoeng came under fire for his previous judgments and controversial statements on rape. These included a judgment in which he reduced the sentence of a husband who had raped his wife because the rapist and his victim had not been strangers. Additional reporting by Jerome Cornelius

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