As an attorney, Sharon Chesiwe would appear to have, at best, a tenuous grasp on the the concept of separation of powers. At worst, it would appear a “captured” understanding of the premise that the three arms of government — the executive, the legislature and the judiciary — stay in their lanes while maintaining a healthy tension between themselves in exercising their powers.
While acting at the Free State High Court in Bloemfontein in March 2017 Chesiwe was asked to review a decision by the Free State Development Corporation to sell a petrol station and property owned by the state to premier Ace Magashule’s daughter for a cut-price.
Chesiwe ruled that “it is an extremely serious matter for a court to intervene in decisions that were taken by the elected representative of an organ of state [and that] if [an] open court has to intervene at all, it should be done in extreme circumstances”.
Worryingly, she went on to find there “were strategic considerations that gave [Magashule’s daughter Thoko Malembe, or her trust] advantage, despite their considerably less costly bid”. She did not go into the detail of the “strategic considerations” in her ruling — but it will certainly be something that the Judicial Service Commission will look to question her about.
Chesiwe has appeared twice previously before the commission without really setting the pulses racing with her jurisprudence or her answers.
Her judgments regarding violent crimes committed by the youth suggest she is a firm believer that if young enough, offenders can be rehabilitated, rather than committed into a criminal justice system that appears only capable of developing further unlawful behaviour.
In the 2012 matter of S v BM, where the 19-year-old appellant was convicted of the rape of a nine-year-old girl and sentenced to life imprisonment, she reduced the sentence to 15 years. The sentence was reduced despite Chesiwe noting that the offender had shown “no remorse” for the crime.
“I am of the view that every judicial officer who has to sentence a youthful offender must ensure that, whatsoever sentence he or she decides to impose, will promote the rehabilitation of the particular youth,” Chesiwe wrote.
Chesiwe had accompanied retired Constitutional Court Judge Johann van der Westhuizen, who is the Inspecting Judge of Correctional Services, on site visits to prisons, and her obvious empathy for young people came through when describing what she had witnessed during her unsuccessful interview last year. She appears a firm believer that mothers with children who are imprisoned require more competent care to obviate the trauma the young ones currently experience.
When unsuccessfully interviewing for a position at the Free State Bench in 2016 Chesiwe listed honesty, integrity, judicial competency, the awareness to “minimise” disputable conduct, an understanding of the Constitution and knowledge of the law as essential to what makes a good judge.
Chesiwe was an ANC member from 1998-2002 before crossing over to the Democratic Alliance from 2006-2009. In her October 2017 interview she confirmed she was “apolitical” and did not belong to any political party.
She initially graduated as a nurse before pursuing a career in the law, studying towards an LLB from Vista University and an LLM from the Free State University. She has worked as an attorney, a legal advisor at Legalwise and, a family advocate from 2008-2016.
April 2018 Interview Synopsis:
Sometimes, there appears to be an advantage to being interviewed during the final hours on the last day of Judicial Service Commission’s (JSC) sitting. The commissioners are tired, sometimes thoughts of their flights back home and other lives may dominate over the job of appointing judges. There may be lapses in concentration and conscience.
Which often explains why some apparently lacklustre candidates get appointed.
Lawyer Sharon Chesiwe would appear to have benefited from such largesse on the part of the commission. Her interview, like previous ones where she demonstrated the little charisma, was stodgy at best while her grasp of legal concepts and the bigger picture of law’s role in a transformative society, often appeared tenuous.
When quizzed on her reducing the life sentence (prescribed minimum) of a rapist convicted of raping a minor to 15 years, she acknowledged that the “criticism is there and we must learn from it”.
Chesiwe told the commission that she had gained more experience acting at the high court and she was satisfied with her exposure to the various fields of law. At the same time she appeared unable to succinctly relay what an unfair dismissal entailed.
She was asked about the “strategic considerations” she took into account in deciding that it would trespass on the separation of powers doctrine if she were to order the Free State provincial government to rescind its decision to sell a petrol station to the daughter of then-Premier Ace Magashule at well below market value.
Chesiwe said she had “no knowledge” that one of the litigants was Magashule’s daughter but had based her decision on the record of province’s decision and relevant legislation like the Public Finance Management Act.
October 2017 Interview:
October 2017 – Interview synopsis:
Attorney Sharon Chesiwe’s soft spot for the youth, and youthful offenders, came under the spotlight during her interview before the Judicial Service Commission (JSC) for a position at the Free State High Court.
Free State MEC for transport and roads, Sam Mashinini, who ironically held up the morning sitting of the commission for 45 minutes because he was allegedly stuck in Johannesburg traffic (the chief justice’s intel suggested he was still at his Sandton Hotel when proceedings were due to begin), questioned Chesiwe’s reducing of a life sentence for an offender convicted of raping a 13-year-old mentally impaired child to rape to 15 years.
Chesiwe said the offender was “still a young man” who “could still be rehabilitated”. Mashinini pushed her on why she had not been sensitive to the message the magistrate’s “severe sentence” was sending out, but Chesiwe stuck by her guns.
Justice Minister Michael Masuthu then asked whether the “punishment should not be commensurate with the crime, rather than what you are saying”? Masuthu went on: “The majority of violent crime inmates are young, over 60% are young people… Don’t you think this is precisely why you need to send a strong message to people that commit gruesome offences? That the mere fact that you are young does not mean you would get a lighter sentence — where is the victim in all of this?”
Chesiwe said she had considered the rape survivor and the victim impact report but appeared unmoved on the potential to rehabilitate young offenders.
Chesiwe had accompanied retired Constitutional Court Judge Johann van der Westhuizen, who is the Inspecting Judge of Correctional Services, on site visits to prisons, and her obvious empathy for young people came through when describing what she had witnessed.
She was critical of the “problem” of overcrowded prisons, although may have gone too far when she told the commission there was a “need to make [inmates’] stay as comfortable as possible”.
Later, she added that she was “traumatised” when visiting women’s prisons and saw their young children incarcerated with them. She described the “serious impact” prison life had on “hysterical” children ill-equipped to deal with strangers and suggested that “perhaps children be put in a creche outside of prison” during the day so that they had mentors. Chesiwe, who is a member of the Lebone Children’s Home, also said the department of social development needed to get involved.
On her understanding of the concept of judicial accountability, Chesiwe said judges were “accountable to the Constitution and the people of South Africa” and that “judgments must be delivered on time”.
Asked by Western Cape Judge President John Hlophe about briefing patterns skewed towards white lawyers and the racism and sexism in the legal fraternity, Chesiwe said “briefs have to be shared with women to ensure they stayed in private practice” and gained exposure to a wide range of matters.
October 2016 Interview:
October 2016 – Interview synopsis:
Attorney Sharon Chesiwe listed honesty, integrity, judicial competency, the awareness to “minimise” disreputable conduct, and understanding of the Constitution and knowledge of the law as essential to what makes a good judge.
She added that she wanted to become a judge to “contribute to the system” by writing judgments that “assist poor people out there”.
Responding to a question by Free State Judge President Mahube Molemela about female judges working on the circuit courts, Chesiwe said that it was part of the job and she had no problems with travelling away from home.
Commissioner Jomo Nyambi asked Chesiwe about the rate of gender transformation in the judiciary. Chesiwe said that the Bench was “getting there slowly” and that acting stints with proper mentorship had helped built her confidence for the job.
Asked by Advocate Lindi Gcabashe SC about how she managed with the workloads that accompany acting stints, Chesiwe said it was all about organisation and time management and “running with the full energy that you have”.