By Dr Wallace Mgoqi
IT IS taken for granted that judicial officers, by reason of their legal training, are necessarily well-acquainted with issues relating to gender but the experiences of most women does not bear this out. On the contrary, women who go through the judicial system come out with bruises from the gender blindness or insensitivity of judicial officers.
My own experience, serving as a Gender Commissioner on the Commission For Gender Equality and doubling up as Acting Judge of the Land Claims Court, opened my eyes to this phenomenon of gender blindness. It then became my responsibility to introduce a Practice Rule for all legal practitioners in that court to be particularly sensitive to matters of gender affecting women, and make every effort to pay particular attention to those issues. It so happened that the proposal was endorsed and adopted by the acting Judge President of the Land Claims Court, it is now Practice Rule No.19.
The idea was that a similar practice rule would be introduced at the level of the Constitutional Court, which has jurisdiction over all the courts below it, to the lowest courts. To this end , I personally arranged a meeting with the then Deputy Chief Justice, now Chief Justice Raymond Zondo but just before my retirement and his impending appointment as Chairman of the State Capture Commission, things fell between the cracks soon afterwards. It is something that still needs to be pursued. Too many women suffer under the yoke of gender blindness or insensitivity on the part of some legal practitioners.
For me this has again been recently highlighted, when a woman, who was divorced by her husband came to see me about her former husband, who had agreed to pay only for the education of their two children, in the amount, R1 000.00 per child per month. The children being aged 3 and 2 at the time in 2014. Now seven years later he is still paying directly to the school, and that is the only obligation the Court order stipulated as maintenance, and is refusing to pay for anything more. As a matter of fact he has defaulted even in what he had agreed to pay, and is consequently in arrears.
She is burdened with costs relating to accommodation, clothing and school uniforms, groceries to feed the children, transport costs to and from school, medical expenses when they fall sick, sports outfit, all of which were not included in the court order, which simply proves that the judicial officer was gender blind or outright incompetent not to apply their mind to these critical matters. The law is clear that the parental responsibility is particularly on the father with regard to the support and maintenance of his children -- he has inherent parental responsibilities and rights in respect of the children. The law gives the court some discretion as regards the making of maintenance orders but such discretion has to be exercised judiciously, having regard to the precarious and tenuous position in which most women find themselves.
There is clearly a crying need for judicial officers to be trained and retrained on handling the full spectrum of issues women face when coming to the courts, so that after they have come into contact with our legal system they can feel it is also there to vindicate their rights as well and not only those of their male counterparts.
This one case is only a tip of an iceberg, there are numerous such cases where women go through painful struggles to vindicate their rights and those of their children, as in this particular case.
The next thing the former husband, who has fallen in arrears in paying what he had agreed to pay, now wants the whole maintenance dispute to be settled by mediation, on condition that the woman scraps the arrears.
In this he is conflating a rights issue, the principle that a parent is obliged by law to pay maintenance and the issue of his relationship with the children, which is an interest issue, that may be mediated upon between the parties, but not the sacrifice of the legal rights of the children to maintenance by their father. He is clearly intending to dupe her into letting him off the hook -- typical self-centredness on the part of most men -- regardless of how others might be affected by his conduct, in this case his children.
Without the conscious and deliberate exercise of protection, the women stand exposed to abuse by unscrupulous men, who will not hesitate to exploit and abuse them emotionally, financially and materially. The courts are the refuge to which women can run and must find solace and security there. It cannot be that after they have been hurt by their partners, running to the courts brings them cold comfort. The law will lose its image as the protector of rights, but as another tool used by men in their exploitation and oppression. The Office of the Chief Justice would do well to ensure that measures are put in place for the re-training of judicial officers on matters of gender to ensure that they are sufficiently sensitised for the sake of the dignity of women and their children, as well as , the image of the law in the eyes of the public – as the defender of rights -- especially of the weak members of society, who cannot defend themselves. A society’s enlightenment is measured not so much about how the strong stand, but by how it protects its vulnerable members, the orphans, the elderly, women and children.
*Dr Wallace Mgoqi is the Chairman at AYO Technology Solutions Ltd.