An Umlazi magistrate set free a man accused of raping a teenage girl because he carried a bag, styled his hair and did the washing – which, the magistrate said, meant he must be gay and ‘not interested in women’.

This ruling by Kholeka Bodlani – and others by her – was overturned overturned by two KZN judges as pressure mounts on the Magistrates’ Commission to quickly take action against her, according to a Sunday Times report.

It was revealed last year that 18 cases in which Bodlani presided had been sent on special judicial review following complaints of incompetence against her.

The commission launched an audit of all her cases since she was appointed in 2013 after two other review judges slammed her for applying ‘shockingly inappropriate’ sentences in four child-rape cases.

They said she appeared to have been ‘totally overcome by mercy’ for the accused. In some instances, she gave them completely suspended sentences.

In December, Judges Dhaya Pillay and Graham Lopes reviewed three new matters, including a pretrial hearing to test a man’s fitness to stand trial, in which Bodlani found that the man accused of raping a 15-year-old girl was gay.

While the Sunday Times report notes two psychiatrists and a psychologist found that he could understand court proceedings, Bodlani commented that ‘he was not normal’. ‘His behavioural conduct, someone who would carry a purse, waving his hands, the conduct which makes the court to doubt he is a normal person. For a man to carry a lady’s purse, it is just not normal for a man. The way he styles his hair, it is as if it is that of a female,’ she said.

She also noted that he was ‘interested in doing household chores … he does washing’, adding: ‘That clearly shows that the person is not interested in females, in sexual relations with females.’

Pillay said of this case: ‘The gratuitous commentary from the magistrate on irrelevant considerations raises serious questions about her suitability for judicial office without further training. She should have tried the accused on the charges, taking into account his compromised mental capacity. Instead she substituted her personal opinion founded on her spurious observations of the accused as an alleged homosexual, to conclude that he was both unfit to stand trial and he could not be held criminally responsible.’

Alison Tilley, co-ordinator of Judges Matter, which advocates for transparency in judicial appointments, said: ‘We are extremely concerned that this magistrate remains on the Bench.’

The other rulings by this magistrate that were overturned are also outlined in the report online.

Full Sunday Times report (subscription needed)