The Trailblazing Judge Who Will Decide Oscar Pistorius’ Fate

5 minute read

It took balls for Martha Mbhele to say she wanted to be a lawyer. Growing up in apartheid South Africa on a white-owned farm in Lindley, a rural town in the country’s agricultural heartland, the practicing attorney and acting high court judge said black women in the legal system were unheard of. “If there was a lawyer it would be a white male,” the 40-year-old said, “there weren’t many role models one could look up to.”

Today, it couldn’t be more different. Over the next two weeks, High Court Judge Thokozile Matilda Masipa, a 66-year-old woman from an impoverished township, will hear the final arguments from the Oscar Pistorius defense team, as the Olympian stands trial for the murder of girlfriend Reeva Steenkamp. Between the gore and sensationalism of the Pistorius trial, the fact that Masipa is judging the case has been celebrated in a country where the law has traditionally been use to subjugate and disenfranchise the black majority. “That she has ascended and been placed in that role is symbolically powerful, it is a mark of how far we have come as a society in battling oppression,” says University of Pretoria political scientist Mzukisi Qobo. “It is confidence building imagery for many black people in South Africa.”

But Masipa’s high-profile position as a high court judge is not only significant for South Africans, but to countries around the world who struggle to achieve diversity on the bench. In the United States, for example, only four of the 112 justices to serve on the country’s highest court have been women. Meanwhile, in England, women hold just 22 percent of 3,575 judicial positions, according to 2012 Judicial Diversity statistics. That Masipa could reach the upper echelons of the legal profession in racially divided South Africa, however, is all the more remarkable given her background.

Born to a homemaker and a travelling salesman, Masipa was brought up in some of the poorest places in South Africa, one of the most unequal countries in the world. In 1966 — the year the “architect of apartheid” Hendrik Verwoerd was assassinated — she graduated from high school in Alexandra, a Johannesburg township. She worked as a social worker, then as a journalist, covering violent protests against the apartheid regime. She earned her law degree in 1990, four years before Nelson Mandela was elected to serve as the country’s first democratic President, and was soon called to the bar. “[To appoint] a black man in itself would have been astonishing, but a black woman, that’s mind-blowing,” says Susan Abro, a Durban-based attorney who worked with Masipa on the Electoral Court in the mid-2000s. “It just shows you exactly how highly she is regarded.”

Masipa was appointed to the high court in 1998, the second black woman in the country to sit on the court, which deals with serious crimes and high profile civil crimes. She believes the appointment of a diverse judiciary has helped the reputation of the courts. “In the past, people would stay away from court, they would rather sort things out themselves,” said Masipa in a 2008 documentary titled Courting Justice. “Now they see there are black people and women on the bench, they say well, maybe, if you want justice, the high court is where you go.”

That hasn’t always been the case. South Africa’s legal system, a hybrid of Dutch-Roman and English law, was adapted by the apartheid government to uphold whites-only rule. Though the jury system was in place at in the early 1900’s, juries — which were exclusively white — fell into disuse and were abolished in 1969 in favor of a judge-only trial. They were not reintroduced when apartheid fell: the country’s courts, stretched at the best of times, were unable to handle the financial and logistical changes necessary to operate a jury trial.

The decline of the jury gave rise to “assessors,” officials appointed by the judge to help adjudicate. For the Pistorius trial, Masipa appointed advocate Janette Henzen-Du Toit, an experienced assessor, and Themba Mazibuko, a recent law graduate. The assessors, like the judge, have been hands-off in the Pistorius trial. “[Masipa] really only interferes where she feels it’s necessary and she’s not playing for cameras,” says Annette Van der Merwe, associate law professor at the University of Pretoria. “She’s regarded as the ideal judge one would like to appear.”

Masipa’s past decisions show she is cautious and careful, but resolute in her judgements — especially when it comes to criminal cases. In 2000, she found Mokete Joseph Marobane guilty of murdering his wife, dismissing his claim he shot her in the head by mistake. That is “absurd,” she said, reported the South African Press Association. In 2009, Masipa convicted police inspector Freddy Mashamba for murdering his wife. “No one is above the law,” she said, “you deserve to go to jail for life because you are not a protector, you are a killer.” Last year, she sentenced a serial rapist and robber known as the “Axeman” to over 250 years in prison, saying “the worst in my view is that he attacked and raped the victims in the sanctity of their own homes where they thought they were safe.”

But Masipa remains an outlier even after sixteen years on the high court, as practising law in South Africa remains an uphill battle for most black women. “In this environment, the only way you can prove yourself is when you perform 200 per cent more than the other guys,” says Mbele, a practising attorney in Welkom and now an acting judge in the Free State High Court, in Bloemfontein. But, she says, “it helps that they have provided a person of Masipa’s calibre. Now we have a female judge that all of us can look up to.”

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