Capacity: Judge
Further appointments: N/A
First appointed as a judge: 01-05-2000
Key judgments: (1) SH v EH 2011 (5) SA 496 (ECP) ; (2) FIRSTRAND BANK LTD V KJ FOODS CC (IN BUSINESS RESCUE) 2017 (5) SA 40 (SCA) ; (3) TSHOGA V S [2016] ZASCA 205; 2017 (1) SACR 420 (SCA) ; (4) S V GR 2015 (2) SACR 79 (SCA) ; (5) S V THUNZI; MLONZI V S [2009] ZAECMHC 30; [2009] ZAECMHC 13
Gender: Female
Ethnicity: White
Candidate Bio:
A judge of the Eastern Cape High Court since 2000, Irma Schoeman completed several acting stints at the Supreme Court of Appeal between 2013 and 2016.
During one of those terms Schoeman, as past of a full Bench, was asked to decide an appeal against a life imprisonment sentence by the appellant, who had been convicted of raping a ten year-old girl. The convicted rapist had argued the sentence was shockingly inappropriate because he had never warned that he faced a sentence of life imprisonment prior to the commencement of his trial, or during the trial.
Schoeman, writing for a majority, noted the five separate hearings for him to raise a complaint of possible prejudice: “He failed to do so and only belatedly raised it in this court. He was not ambushed as the charge sheet set out that he was charged with the rape of a ten-year-old girl, which brought the offence within the ambit of s 51(1) … He was convicted of the rape of a girl under 16 years, which is a conviction that attracts the minimum sentencing regime in terms of the Act. He had effective legal representation throughout the trial until his conviction and the transfer to the high court. Furthermore, he was legally represented during both sentencing proceedings in the high court and in both appeals to the full court.”
Schoeman also found there was no compelling reasons not to impose the life sentence and dismissed the appeal. Acting judge Ronnie Bosielo dissented, with acting judge Zukisa Tshiqi concurring, finding that the life terms should have been replaced by ten year’s imprisonment.
In 2009 she demonstrated clear reasoning in declaring The Dangerous Weapons Act 71 of 1968, an old Transkei bantustan law that was only applicable in some areas of the Eastern Cape, unconstitutional — and that there was no compelling reasons for it to be operational.
Schoeman, with her colleague concurring, found:
“The preamble of the DWA states that the act is to provide for the imposition of prescribed sentences where dangerous weapons have been used in the commission of offences involving violence. The rationale of the DWA is surely to curb the violence being perpetrated with dangerous weapons by imposing consistent, severe, sentences. However there is no rationale in distinguishing perpetrators in the former Transkei from perpetrators in the rest of South Africa.
“For example, there is no indication, through crime statistics or otherwise, that violent crime, per capita, in the areas of Libode or Elliotdale (magisterial districts in the former Transkei) is any higher than in the magisterial districts of Cape Town or Johannesburg. There is thus no rationale for applying s 4 to the whole of the former Transkei, just because it was in operation prior to 1994.”
“The effect of the discrimination is that all the accused in the erstwhile Transkei are subjected to much harsher punishment that would otherwise have been the case had s 4 of the DWA (Tk) not been in operation.”
In the 2011 Eastern Cape high court matter, SH v EH, Schoeman was asked to decide on whether a divorced husband was still liable to pay maintenance to his ex-wife after she had moved in with a new lover.
Schoeman was clear that cohabitation did not equate to marriage. “Marriage entails that the parties establish and ‘maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another.’ One of the effects of marriage is the reciprocal duty of support.”
“I am of the opinion that in the circumstances of this case it cannot be said that it is against public policy that the defendant should be liable to pay maintenance to the plaintiff; there is no legislative prohibition and I find that there is no general public policy to that effect or moral prohibition.”
In 2003 Schoeman acted at the Labour Court. After graduating from the University of Pretoria with a BA and an LLB she worked as a junior lecturer at the University of South Africa before taking up a position as a pubic prosecutor. After serving articles and working as an attorney, Schoeman joined the Free State Bar in 1997.
April 2018 Interview:
April 2018 Interview Synopsis:
Eastern Cape High Court Judge Irma Schoeman did herself no favours when she appeared to admit that she shied away from writing reportable judgments because she was told during her first acting stint at the Supreme Court of Appeal (SCA) in 1997 that “puisne judges are there to ‘shift work’”.
“That’s what I was told: ‘Please don’t write clever judgments, give us the facts’. Which is why I don’t write reported judgments,” she told the Judicial Service Commission (JSC).
Likewise her response to a question by SCA president Mandisa Maya about her writing a judgment in Afrikaans. Schoeman said in her defence it had occurred during her first acting stint and that “if I knew at all that it was not on, I would not have done it.” She described it as an “error of judgment” but that her “independence was not affected” by the judge who had recommended that she do so, Frans Malan.
She then cited a more recent example when she had heard an SCA matter with former president Lex Mpati and he had permitted her to write the judgment in Afrikaans. She abandoned the suggestion and chose to write the judgment in English.
During Schoeman’s first acting stint at the SCA in 1997, she found the experience “hellish”: “senior judges made you feel particularly incompetent and unwanted,” Schoeman said.
She said these judges were “dismissive” and refused to engage with their colleagues who were acting on the Bench. At times they went as far as not consulting with their colleagues, or persuading them of a perspective regarding a case, before ambushing them with a newly written judgment.
Describing it as an, “extremely solitary time at the court” Schoeman said an “old boy’s club attitude” had permeated through the appellate division.
Things appear to have improved over time and when Schoeman was spending acting stints at the SCA in 2014 and 2016 there was a “radical change” she said. Schoeman attributed this to the fact that, over time, “some of the people had left”. She also pointed the “serious” gender and race sensitivity training that had been carried out in the courts.
