It is clear that no legitimate objective is advanced by excluding domestic workers from COIDA. If anything, their exclusion has a significant stigmatising effect which entrenches patterns of disadvantage based on race, sex and gender…. In considering those who are most vulnerable or most in need, a court should take cognisance of those who fall at the intersection of compounded vulnerabilities due to intersecting oppression based on race, sex, gender, class and other grounds. To allow this form of state-sanctioned inequity goes against the values of our newly constituted society namely human dignity, the achievement of equality and ubuntu. To exclude this category of individuals from the social security scheme established by COIDA is manifestly unreasonable.
South Africa’s Constitutional Court judges are famously polite and collegial. Unlike the judges of the US Supreme Court, for example, disagreements are kept civil and attempts are always made to find common ground on the cases before them. Even when the judges disagree on the outcome of a case, they usually express disagreement in exceedingly polite terms.
This is why I was struck by a sentence in the dissenting opinion of Justice Tollie Madala in the judgment of M versus The State, which was handed down late last month. He sharply in and quite sarcastically rebukes the majority in a rather uncharacteristic manner.
The Court was asked to review the four year prison sentence of the primary care giver of relatively young children in the light of section 28(2) of the Constitution which states that the child’s best interests are of paramount importance in any matter concerning the child. The accused argued that the lower courts had not sufficiently taken into account the best interest of the three children of the mother.
The mother had been convicted of fraud in 1996 and had been given a 5 year suspended sentence. But in 1999 she was again charged with fraud and committed more fraud while out on bail. Not a particularly sympathetic appellant, then.
Nevertheless, Sachs, speaking for the majority, found that the lower court had failed to sufficiently take into account the best interest of the children. After balancing the interest of the community with the interest of the accused and particularly her children, Sachs ordered that the custodial sentence be suspended and the accused be placed under correctional supervision.
Justice Madala agreed with the majority that the lower courts had not sufficiently taken into account the best interest of the children, but strongly disagreed with the majority for suspending the prison sentence. He thus stated:
Where, as is the situation with M, the primary caregiver is a recidivist who continues to commit crimes of a similar nature even whilst on bail and the children are relatively closer to their teens, it would be folly and a show of “maudlin sympathy” to impose a non-custodial sentence. In such circumstances the primary caregiver may not escape a custodial sentence.
Ouch! Strong language indeed. Justice Madala had shown before that he is rather conservative when it comes to criminal justice issues. In the case of Minister of Home Affairs v Nicro he dissented from the majority who had invalidated the provisions of the law prohibiting prisoners who had been sentenced to more than one year in prison from voting.
But the intemperate language he used in the most recent case is unusual and suggests that he thinks his fellow judges are irresponsible bleeding hearts. Just as interesting is that the most junior judge on the court, Justice Bess Nkabinda, also signed on to the minority judgment.
Judge Nkabinda, who started her career as a state legal advisor in the former
Only time will tell how she will vote in other cases dealing with executive power or with gender issues, for example. But the latest judgment does seem to suggest that she might not be cut from the same cloth as Justice Mokgoro and Sachs – presently probably the most progressive members of the