Supreme Court of Appeal judge Leona Theron has smashed through glass ceilings during her career. When appointed to the KwaZulu-Natal division of the high court in 1999 Theron became its first black female judge and, at the age of 33, its youngest.
A 1995 profile in the General Council of the Bar magazine described her as “remarkable”, recounting how the 12-year-old Theron had started a sweet-making home industry so as to pay for schooling and music lessons. This led to a proficiency in the piano, organ and violin. Theron has also talked of her passion for writing poetry.
But poetry is a mere pastime, it is the writing of judgments and the adjudication of legal cases where she has left her most indelible mark on the public sphere.
In 2008 Theron handed down a seminal judgment in the KwaZulu-Natal High Court when she ruled that women in customary marriages were, in effect, married in community of property and so accrued similar rights and benefits.
In Gumede (born Shange) v President of the Republic of South Africa and Others, Theron wrote that the “proprietary regime established by the codification of customary law, is, prima facie, discriminatory. It is discriminatory as only African women are subjected by the law to such consequences. The discrimination is on two of the prohibited grounds listed in section 9(3) of the Constitution, namely race and gender.”
Theron found that certain provisions of the KwaZulu Act on the Code of Zulu Law 16 of 1985 and the Natal Code of Zulu Law Proclamation R151 of 1987 were inconsistent with the Constitution, as was the distinctions the Recognition of Customary Marriages Act drew between customary and community of property marriages. Her judgment was later upheld by the Constitutional Court.
Theron has consistently demonstrated an independent-mindedness and a hard-nosed attitude to rape and gender-based violence in South Africa. While acting at the Supreme Court of Appeal in 2006 she dissented from a majority judgment which, citing mitigating factors adduced by the rapist, had reduced a life sentence for rape to 16 years imprisonment.
Theron pointed to the complainant jumping from a second-floor window in an attempt to escape as an indication of the severity of the crime and described it as “one of the worst imaginable”.
“Against the backdrop of the unprecedented spate of rapes in this country, courts must also be mindful of their duty to send out a clear message to potential rapists and to the community that they are determined to protect the equality, dignity and freedom of all women. Society’s legitimate expectation is ‘that an offender will not escape life imprisonment – which has been prescribed for a very specific reason – simply because [substantial and compelling] circumstances are, unwarrantedly, held to be present.’ In our constitutional order women are entitled to expect and insist upon the full protection of the law;” Theron wrote.
In 2012 Theron, writing a unanimous judgment for a full SCA Bench, found that the head of the Free State education department could not unilaterally impose policy on school principals and governing bodies. This after two Welkom schools had decided to exclude pregnant learners from attending classes for stipulated periods. The head of department, citing the right to education, had ordered the schools to rescind their policy regarding pregnant learners.
The decision was upheld by a plurality of the Constitutional Court in a philosophical judgment that recognised the participatory nature of democracy and urged all stakeholders to engage more often with each other.
In 2015 Theron acted at the Constitutional Court for two terms. She heard 21 cases, wrote two unanimous leading judgments and a further two dissents.
The 50-year-old Theron holds BA and LLB degrees from the University of KwaZulu-Natal and an LLM from Georgetown University in the United States. She practised as an advocate at the KwaZulu-Natal Bar from 1991-1999, before high court acting stints in KZN and the Eastern Cape. In 1999 Theron was permanently appointed to the KwaZulu-Natal high court where she served until 2010. The end of the decade saw Theron acting at the Supreme Court of Appeal, to which she was permanently appointed in 2010.
Apartheid scars were revealed when Supreme Court of Appeal Judge Leona Theron was asked about her proficiency in an indigenous language.
Theron, who grew up in KwaZulu-Natal, described why she had not developed a fluency in isiZulu, despite having a Zulu grandmother from Umlazi, a Durban township which, during apartheid, was reserved for black people.
Theron told the commission that her grandmother had “looked across the road and saw [the coloured township of] Wentworth and the better houses that people were getting from that [apartheid] government and somehow managed to get herself reclassified as ‘coloured,’”.
The reclassification meant a house for the family but came with consequences. Her grandmother, fearful of being outed as a Zulu living in a coloured area, banned the language from being spoken by her grandchildren because “she told us that if we are discovered to be Zulu, we would lose the house.”
Theron had picked up a smattering of vocabulary, which she said had assisted her as high court judge in the province, especially, when picking up mistakes or misunderstandings by the court interpreter.
“Yes, language is important,” Theron said, “but learning culture and custom is as, if not more, important.”
It was inevitable that Theron would be asked about her experiences at the SCA and she retold an experience during her early days when she had followed up on a question that a senior judge had asked counsel with one of her own. The senior judge instructed the lawyer to ignore her question and merely answer his: “It made me feel very small, it made me feel as if I had done something stupid or silly,” she said.
Theron later broke down while talking of feeling inadequate because of some of her experiences at the SCA: “We tend not to address issues like that head-on,” she said.
While she said that “the atmosphere has generally changed” at the appellate court, Theron did emphasise that “I have been a victim of racism, I have been a victim of sexism” during her time as a judge.
Asked by one of four presidential appointment to the JSC, Advocate Thandi Norman SC, “how difficult it was for you to balance the rights of property of women in customary marriages and the patriarchy in their society” in the Gumede judgment (see profile), Theron said “it wasn’t difficult to do”. This was because in addressing women’s rights to equality, she said she had balanced the customs of where people lived with the Constitution and the former had been found wanting.
Responding to whether the requirements for granting an interdict should be developed to fit the Bill of Rights, Theron said that while judges were enjoined by the Constitution to develop the common-law in accordance with the prism of the Bill of Rights, change should be based on “reason and the enhancement of the law.”