Authors: Mandy Wiener
One Tragic Night (40 page)
After she finished matric, Masipa went off to work for two years because her parents couldn't afford for her to study further, and found herself in a state of flux, moving from job to job. She says this in the documentary:
So during those two years I had a real experience of what life was like when you were black and you were not educated. Because I had thought if you had matric, you're quite educated, because I'd seen these white, you know, girls working in the offices, typing, doing all kinds of things, and I couldn't do that. You were employed as a clerk; I remember I was employed as a clerk. But I did all kinds of things; I was a messenger, I was a tea-girl, and I just thought to myself, you know, this can't be life. And I think that is what motivated me to go to university.
After those two years she decided that, whether or not there was money to be made, she had to go back to study and, on her mother's recommendation, registered for a Bachelor of Arts (BA) in Social Work and Psychology.
By then she had met her husband, who was working in construction at the time. He had not finished his schooling, but harboured ambitions of becoming an accountant. After her first year at university, Masipa continued her studies via correspondence through the University of South Africa, returning to Johannesburg to marry her man. They had two children in quick succession in 1971 and 1972 and during that time she completed her BA. Her husband, who is now a tax consultant, also studied through correspondence at the University of the Witwatersrand.
Masipa then began searching for a job as a social worker but when she failed to find one she became increasingly disillusioned. She did some practical work at the Bantu Affairs Commission and was extremely disheartened by perpetuating the stereotypes of black women. She spent much of her time there trying to trace the parents of lost children or filling out forms for pensioners â hardly the challenging work she was looking for.
It was around this time that she saw an advertisement for junior reporters at
The World
newspaper. She called and expressed interest, went for an interview
and was hired. Masipa was stationed in Soweto in 1976, both a volatile and exciting period in the country's history. It was the time of the Soweto uprising, the school boycotts, when the township was combusting.
The World
was at the centre of this all â editor Percy Qoboza was arrested and photographer Sam Nzima snapped the iconic image of dying schoolboy Hector Pieterson being carried by Mbuyisa Makhubo, with his crying sister Antoinette Sithole running alongside them.
Quiet and reserved, Masipa found the job tough and soon discovered that as a journalist it's not enough only to be a good writer. You have to have a knack for speaking to people. The mentor who trained her took her from one drinking hole to another, explaining to her that it was in the shebeens of the township that she would find her stories. She learnt quickly to come out of her shell so that she could succeed as a reporter working primarily on crime stories.
In October 1977,
The World
was banned by Justice Minister Jimmy Kruger and the staff detained. A profile on Masipa in
The New York Times
gives further insight into her experiences at this time:
One day in 1977, after their male editors were arrested, Judge Masipa, by then married with two sons, and four other female reporters organized a demonstration in downtown Johannesburg.
The women were arrested and spent one night in jail, recalled one, Pearl Luthuli, now 60. Inside their cell, they used the newspapers they were carrying as sheets and blankets.
The next morning, the white wardens ordered them to clean their cell before releasing them for a court appearance.
âThere was a toilet in the corner there that I cannot bear to think about even up to today,' Ms. Luthuli said. âThe next day, we had not used the toilet, but they expected us to clean it. We refused.' The wardens eventually relented, she said.
Ms. Masipa was already moving on. She began using her Zulu name, Thokozile, dropping Matilda, or Tilly, as everyone called her.
Masipa and other employees who remained moved on to the
Post
, which was launched in 1978. When the
Post
was closed down in 1980, the staff then migrated to
The Sowetan
, which is still published today. While at the
Post
, Masipa launched a supplement called
Post Women
, which she headed.
After a while, however, she became disillusioned with journalism and spent a stint in the advertising industry as a copywriter. But four years later she returned
to the media world when she took a job at
Pace
magazine in 1988. At the same time she made the decision to start studying for her LLB. She and her family were living in Tembisa, a township to the east of Johannesburg. Although the family had an old car, they only used it on weekends, and during the week she caught the train to the city and her husband and children waited on the side of the road for her return. Her husband cooked supper as she worked on her assignments, often staying up all night to meet a deadline.
Once she had completed her LLB, she began to look to doing her articles. She was already over 40, an anomaly in the legal fraternity. As a result, she went straight to do pupillage at the Johannesburg Bar to become an advocate. She spent three months working under a Master, a practising advocate, and then wrote her bar exams â and failed.
Masipa was devastated. She had never failed at anything in her life. She seriously contemplated leaving her job because, as a pupil, you don't earn any money and she had a family at home that she needed to feed. But Advocate Max Labe SC, chairperson of the Johannesburg Bar at the time, got wind that she wanted to leave and summoned her to see him. Labe impressed on her the need for people of colour at the bar and convinced her to remain. She had failed Criminal Law, so her Master referred her to a new Master who specialised in this section and she passed comfortably on her second attempt.
Defence counsel Mannie Witz remembers receiving the phone call from Labe, asking him to take Masipa on as a pupil.
âHe said will I take this lady as a pupil and I didn't know she was actually older than me. I thought it's like going to be a youngster. He brought Matilda to see me. I said fine, no problem. She was already in her early fifties. I didn't know she was already going to be earmarked to become a future judge. I still said to her, “At this age in your life, what do you want to come and do pupillage for?” She said this is her interest and her passion.
âWe had some very good, lekker, liberal guys in our group. She spent time with me but she moved around with all the different advocates. Lovely person, very quiet, very reserved,' recalls Witz.
He describes her as very hard-working and diligent, and was shocked at the hours that she put in. âShe did very well, she passed with flying colours.'
Masipa was admitted as an advocate in 1991, one of only three black women at the Johannesburg Bar at the time, along with Kgomotso Moroka and Lucy Mailula. Her appointment was so unusual that she once received a call from an opponent wanting to set up an appointment, and he asked to speak to âMr Masipa'. It never occurred to him that she might be a woman. New on the scene,
she recalled in the documentary that she was mostly occupied by criminal or unopposed divorce matters:
During that time I started working as, helping as an assessor in criminal work. I sat with different judges. And after that I became an acting judge, I did that I think for six weeks, and then people started pressurising me to come to the bench. At the time I felt really, I wasn't ready, but people said, âYou know, you learn when you are on the bench,' and that's exactly what I did.
In 1998 she was appointed as a judge in what was then the Transvaal Provincial Division of the High Court of South Africa, only the second black woman to be appointed to the bench after Mailula. Masipa had been at the bar for only seven years, relatively âyoung' in terms of experience, but had been recommended by a colleague during a time when the focus was on transformation.
She learnt from the likes of Bob Nugent who went on to become a Supreme Court of Appeal judge but was also eager to learn from other colleagues at the bench. She also established early on that she prefers to sit with assessors, to assist her in looking at the facts of the case. In one of the first cases she presided over, she sat with two assessors who had legal backgrounds and found the experience âbeautiful'.
Judge Masipa spent time out of Johannesburg presiding over circuit courts and discovered a trend that saddened her â young children coming to court facing charges of serious crimes such as murder and robbery.
Masipa acknowledges that she has a special interest in the rehabilitation of offenders. There have been instances in which teenagers accused of serious crimes have come before her in court and she has been reluctant to send them to prison. She felt that they deserve a second chance and recommended correctional supervision instead. As she described in
Courting Justice
:
There was this horrible case of three youngsters who raped a 14-year-old girl, who was also at a shebeen; they raped her and then killed her. These are terrible cases. You just don't know whether to, you don't know what to do with these young people, because they are young; if you send them to prison, obviously they're going to come back worse, if you don't send them to prison, people are not safe or people don't even trust the justice system any more, which is even worse. You know, they start to take law into their own hands. So you, it's quite a big challenge, you've got to see, you know, balance â and that's a very, you know, it's a very tricky thing.
In the documentary, Masipa acknowledged that her upbringing in Orlando East had an impact on the way she rules:
It does, it does a lot because I sort of can identify with what these youngsters are going through. Because a lot of youngsters appear before me in criminal matters and I do understand, because this is where I come from. And I think it does impact on my judgments. I'm not saying that I'm a lot lenient, but I'm more understanding; understanding where a person comes from really makes you, I think, it balances your judgment. It does make me a lot more compassionate. I am compassionate by nature, but coming from this area, I think does make me a lot more compassionate. I'm able to â even outside court â I'm able to communicate with youngsters that I see might be tempted into getting into crime.
Masipa also explained how being a woman might impact on some of her rulings:
If you sit with a male colleague, for example on a rape case, you can see that there's a, you know, there's a difference between the way a woman sees rape and the, you know, the way a man sees rape, although we're all judges. So women judges do make a difference. You know men will ask you, the first question ⦠âWhat was she wearing?', you know, if a woman was raped, or âWhere did she come from?' It doesn't matter where she came from, you know, it doesn't matter what she was wearing. But, you know, it's, these are the, you know, things that we're trying to break as women, and I'm sure we are making a difference.
Despite her preference for rehabilitation over incarceration, when it comes to youths Masipa has not been opposed to harsh maximum sentences when she has deemed it necessary, particularly in incidents of violence against women.
In May 2013, for example, she handed down a 252-year sentence against the âAxe Man' Shepherd Moyo, a serial rapist. Masipa gave him 15 years for each of his 11 counts of robbery, 12 years for attempted murder and life sentences for three rape charges.
She said in her judgment that the three rape victims of the man who carried out a spate of house robberies in northern Johannesburg had been left traumatised for life and his lack of remorse made it unlikely that he could be rehabilitated.
âThe 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,' she said.
In 2009, Masipa handed down a life sentence to a policeman, Freddy Mashamba, who shot and killed his former wife after a row over their divorce settlement. âNo one is above the law. You deserve to go to jail for life because you are not a protector. You are a killer,' Masipa told him.
She has also presided over other high-profile matters that have featured in the media spotlight. She heard the case involving the dismissal of Eskom chief executive Jacob Maroga and his claim for R85 million in compensation, where she ruled in favour of Eskom and the Department of Public Enterprises. In her judgment, she commented on the government's powers in relation to stateowned enterprises, saying: âA shareholder does not have the right to interfere in the decision-making of the board in respect to the company's internal affairs.'
Masipa also ruled in a landmark judgment in the case of the
Blue Moonlight Properties 39 v Occupiers Saratoga Avenue and the City of Johannesburg
, where she found that the city had failed to fulfil its obligations to find alternative accommodation for squatters threatened with eviction from old warehouses in Berea. âIt is clear that the city is trying to distance itself from the problems of the unlawful occupiers in this matter,' she ruled.
Being one of the few black female judges in the country currently on the bench, she says in
Courting Justice
that she hopes her presence encourages more people to seek out justice:
What is most challenging is the fact that when black people in particular see you sitting there, you know that they expect a lot from you, and you just have to live up to that. Sometimes it's not that easy, sometimes the woman comes before your court and she's saying to herself, âWell she's black, she's a woman, she must understand this.' But you still have to look at what the law says. You will look at it with different eyes because you're compassionate, you might make things, you might make things easier for her by explaining things and not being too hard on her. But not everyone understands that.