Magistrate roasts no-show advocate for double-booking bungle
Sicelo Nyawo, 33, Lucky Luthuli, 54, Nkosinathi Ngcongo, 43, and Emannuel Mthokozisi 'Grey' Zungu, 46, are charged with the murder of Jerome Gasa who was shot on his way home at the Warwick junction on the evening of January 7.
His death came as National Union of Metalworkers of SA (Numsa) workers were on strike at the Durban depot over the retrenchment of 106 workers, after the company failed to have the stoppage interdicted by the courts.
Three other workers were also killed.
Singh was expected to hear closing arguments before making a ruling into the protracted bail hearing on Wednesday.
More than 10 witnesses have testified during the bail hearing.
Instructing attorney Sipho Mkhize told court Thusi was unwell and requested the court matter to start after lunch.
Senior prosecutor Calvin Govender expressed his dissatisfaction with proceedings, saying the matter had been clogging up the court roll and how Thusi had often caused delays.
A visibly angry Singh described Thusi's conduct as 'disgusting' for the unnecessary delays.
'A sad part is that these delays are not affecting me. The lives of the families of the accused and the deceased are being affected. This should not be a moneymaking scheme,' said Thusi.
An irate Singh also chastised Mkhize for making excuses for Thusi.
He said Thusi's conduct did not befit someone who was a legal representative and warned him against 'double booking'.
Singh also bemoaned the delay as the suspects were arrested on January 29 but the bail application commenced only in March.
In March, Durban magistrate Sicelo Zuma recused himself from the bail application.
The matter was provisionally postponed to July 16 when Thusi is expected to explain to the court the reasons for his no-show or be reported to authorities.
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Mengo's legal counsel called on soon-to-be Dr Lisa Vetten, a renowned and experienced white gender-based violence expert, who argued that Mengo's responses to Mbenenge were consistent with the unequal power relations between them. Judge Mbengenge's defence counsel attacked Vetten's analysis based (among other things) on what the defence argued was her bias and lack of knowledge of the nuances of Xhosa cultural courtship and the Xhosa language. In the aftermath of Vetten's cross-examination, I participated in informal conversations with two groups of black women about the implications of her expert testimony. One group, of which I am a member, is a South African-based, cross-disciplinary collective of doctoral and postdoctoral researchers called the Red Gown Stokvel, a reference to the red doctoral graduation gowns and the group's purpose as a space for intellectual — rather than monetary — exchanges. The other group comprises lawyers and others doing gender-based violence research, who met through contact with the Institute for Strategic Litigation in Africa, a pan-African and feminist human rights organisation. Three interlinked key concerns have come to the fore from these conversations and my doctoral research on the different ways in which black women have been excluded from rape law reform. The first concern is that there is a possible overlooking of black women's expertise when authoritative insights are sought on cases of rape, sexual harassment and other misconduct. The second concern is the framing of black men and women in black anti-racist rhetoric around sexual violence. The third concern is the use of African cultures as a trump card to mask or justify abusive behaviours. Who/where are the black women experts? The historical dominance of white women in discourse on sexual harassment and violence can be linked to the theories on gender-based violence which arose during the second wave of feminism between the late 1960s and 1980s and the growth of women-focused international human rights regimes from the 1970s. These developments started during the apartheid era, a time when black women's (especially black African women's) participation in academia was restricted and civic engagement with the state was not an option for them. The post-1994 democratic dispensation provided the constitutional framework that gave all citizens the right to participate in the making and reform of polices and laws. However, the anti-rape and sexual harassment law and policy wheel was already in motion by the time that black women activists and researchers had a place at the metaphorical negotiating table. While some black women were already using black feminist socialist and intersectional lenses to explain convergences of sexual and other violence in black women's lives, many ordinary black women were on the back foot regarding the major debates and processes around these issues. They also continued to face socio-economic and cultural barriers (such as the language barrier) to participation. I, and some of the black women I engaged with, largely agreed with the analysis that Vetten provided. But more than three decades into democracy in a black majority country, why are decision-makers not calling on black women experts to explain black women's experiences and circumstances of violence, specifically black African women experts in closer cultural and experiential proximity to black African opposing parties or research subjects? 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Black anti-racist rhetoric on sexual violence remembers the discrimination and victimisation inflicted on black men but is mostly silent on the sexual victimisation and discrimination inflicted on black women across and within racial and class divides. In 2016, Judge Mabel Jansen reportedly made statements on social media to the effect that black cultures condoned black men's raping of women and children and that black women accepted this. The black anti-racist rhetoric tended to magnify what Jansen's statements meant in terms of unfair discrimination against black men rape defendants and to treat as secondary the implications of the judge's statements for discrimination against black women rape complainants. Sexual violence research's focus on black communities has historically reinforced racial stereotypes. 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In contrast, the editorial framed Judge Mbengene as an Africanist decolonial hero. My intention is not to suggest that black women are victims in every situation. Just as political columnist Malaika Mahlatsi argued in another opinion editorial this year, the problem I want to highlight here is that there is a belief among many in black communities that prominent black men are accused of sexual violence as part of conspiracies to bring their leadership and achievements into disrepute. Many are unwilling to consider that at least some of these accusations might be warranted. This is something that black communities must confront and work against. The use of culture as a trump The use of cultural claims to deflect accusations of sexual coercion and violence is not a novel strategy. Mbenenge's counsel's use of culture to argue that there was consent in the interactions between him and Mengo was thus something that her counsel could have foreseen. It could have been planned for by involving black gender-based violence experts with the appropriate experience and skill set. Not every black gender-based violence expert is necessarily an expert on African languages and cultures. However, as documented by African philosopher Phola Mabizela Mabaso, a Red Gown Stokvel member whose Nguni heritage has given her some knowledge and experience of Xhosa culture, also educated us that it is taboo in Xhosa culture for a man to sexually proposition a person young enough to be his child. Atonement may be required for the transgression. It is more often black women who suffer the negative attributes of African customs and who seek to build on its positive aspects. It thus falls to black women and people to address the oppressive aspects of their cultures. Unfortunately, adversarial court and tribunal proceedings restrict constructive engagement. Furthermore, black women have sometimes suffered dire professional and personal consequences for publicly challenging patriarchal interpretations of African cultures. This and the other mentioned concerns underscore the importance of centring black women's voices and knowledge in national discourses on sexual violence, highlighting the need for black women to be supported when sharing their knowledge and experiences. Nompumelelo Motlafi Francis is a postdoctoral research fellow at the Institute for Pan-African Thought and Conversation, University of Johannesburg.
