From Wentworth’s gravel roads, to an esteemed judge in the Constitutional Court. Judge Leona Theron’s career in the legal field came full circle after she was promoted to a judge in South Africa’s apex court two year’s ago.
However, it was her judgment as an acting judge in the Supreme Court of Appeal, several years ago which created a big buzz in Parliament and the country. The case concerned Nkomo v The State. Nkomo, who received a life sentence from a lower court for kidnapping and repeatedly raping a woman, had appealed his sentence in the Supreme Court of Appeal.
Judge Theron, known for being a tough but fair judge, stood her ground in a dissenting judgment that Nkomo deserved a life term, while Judges Edwin Cameron and Carole Lewis reduced his sentence to just 16 year’s.
Judge Theron remarked that the frightened and highly traumatised complainant, had attempted to jump from a second floor window to escape from Nkomo’s clutches.
She described the crime as extremely severe and 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. In this case the substantial and compelling circumstances, in my view are unwarranted. In our constitutional order, women are entitled to expect and insist upon the full protection of the law,” said Judge Theron.
Judge Theron, who was the first Black female judge to be appointed to the KwaZulu-Natal bench in October 1999 was also lauded for her landmark customary law judgment.
In Gumede (born Shange) v President of the Republic of South Africa and Others, Judge Theron said: “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,” She found that certain provisions of the KwaZulu Act on the Code of Zulu Law 16 of 1985 and the KwaZulu-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. The Constitutional Court upheld that ruling.
In 2012, Judge Theron, in a unanimous judgment in the Supreme Court of Appeal, ordered 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 pupils 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 pupils.
That decision was also upheld by the Constitutional Court. In a philosophical judgment, the country’s highest court recognised the participatory nature of democracy and urged all stakeholders to engage more often with each other.
After matriculating, Judge Theron worked as a part time cashier at a supermarket chain from December 1983 to January 1989, to supplement her family’s income. Married to former Ladysmith property developer, Charles Sarjoo, the judge obtained her BA degree at the University of KwaZulu-Natal in 1987, a LLB degree from the same university in 1989 and a LLM degree in Washington in the USA in 1990. She was admitted as an advocate in the Pietermaritzburg High Court in 1990. Before that, Judge Theron had a six year stint as a candidate attorney at a Durban firm of attorneys, Street Law coordinator at the University of KwaZulu-Natal and lecturer at Mangosuthu Technikon in uMlazi as well as legal advisor of the Legal Aid Clinic at the University of KwaZulu-Natal.
Judge Theron’s other accolade was the appointment as the first Black judge on the KZN bench. From May 2006 to June 2007 and from December 2009 to March 2010, she was appointed as an acting judge in the Supreme Court of Appeal, before taking up a full time post there.
Judge Theron was appointed as an acting judge at the Constitutional Court from February 2015 to May 2015. The legal eagle’s awards includes: The KZN Legal Forum Award for contribution to the development of Justice in South Africa, Department of Justice Woman Achiever of the Year in 2000, Commonwealth Foundation Fellow in 1995 where she visited London, Pakistan and Sri Lanka, Fullbright Scholarship in 1990, Black South African Lawyers Program, Georgetown University, Washington DC, USA in 1990, Commonwealth Magistrates and Judges Association council member, South African Judicial Education Institute council member and founding member of the South African Chapter of the International Association of Woman Judges. At a legal conference hosted by the South African Chapter of International Association of Women Judges in Polokwane, Judge Theron, after being promoted to the Constitutional Court, said more had to be done to transform the judiciary.
“Transformation must be looked at differently and the judiciary must transform itself first. Transformation is not only about magistrates being appointed as judges. It is about transforming the entire society, the community and the workplace in order to live up to the ideals of the Constitution and in order to be true to the oath of office,” said Judge Theron. She remarked that transformation starts by what you do outside of you job, as a lecturer, as a magistrate and as a judge.
“Some of the fruits of transformation was seeing more women judges in the judiciary. “We want to see more upward mobility of women in the judiciary. We want to see transformation at grassroot level and we want to see transformation at our courts. “Transformation does not start with promotions, but starts with making a comfortable and clean environment for the people who go to courts to be served,” said Judge Theron.
