Appointment of women to the judiciary in South Africa

I was privileged to attend the 2015 16th Annual South African Development Community Lawyers Association (SADC LA) conference in Tanzania where the issue of the appointment of women judges was discussed.

The conference received papers on perspectives from Zimbabwe, Malawi, Zambia and South Africa. The most depressing figures came from Malawi where there is a need for urgent and decisive intervention by the authorities at university and training level. Zimbabwe is notably leading by miles in comparison to other countries. It is also worth mentioning that it was acknowledged that all the appointments for women judges were done by President Mugabe prior to the establishment of the Judicial Services Commission.

What came across as a common factor was a need to ensure that whenever there are vacancies, women lawyers are given preference for appointment on condition that they satisfy the merit requirement. It was emphasised that this was important to ensure diversity and bring gender sensitivity in the administration of justice among our people.

Tabeth Masengu from the University of Cape Town’s Centre for Democratic Governance and Rights Unit presented statistics on the gender composition of the judiciary in South Africa and stated that she had interviewed women lawyers who have complained to her that they are not approached whenever there are opportunities for acting or permanent appointments.

The statement viewed objectively suggests that there is a sustained and determined campaign by male lawyers and judges to stop woman lawyers from ascending to the higher echelons of the judiciary in South Africa. This narrative has been propagated so many times, with no or little challenge, that we run the risk of it being accepted as truth. There are many male judges and lawyers who are committed to the transformation of the judiciary in all its facets.

I accordingly want to dispute the correctness of the statement and dare say that it is not supported by any empirical evidence. I honestly do not know of any male judge, advocate or attorney who is against the appointment of women judges.

On the contrary, I know of many male judges and attorneys in South Africa particularly in the Black Lawyers Association who have approached women lawyers to avail themselves whenever there are opportunities for acting or permanent appointment. Regrettably the majority of the women lawyers approached always indicate that they are not available for various reasons, including, lack of security and impossible working hours that fail to take into account their particular personal and cultural circumstances.

Without wishing to be prescriptive about the steps required to tackle this malady, I think the time has come where women organisations, both in the legal profession and in the broader society, as well as other civil society organisations, to take up these issues and raise them sharply with the powers that be.

There is, as far as I know, nothing that prevents or prohibits the South African Women in Law Association, South
African Women in Construction, African National Congress Women’s League, IMBELEKO Foundation, women in business or politics from nominating women for appointment to the Bench. When permanent vacancies occur in the judiciary the Judicial Service Commission takes it on itself to communicate the advertisement with the organised professional and women organisations.

The fact that they have not done it yet says a lot about them as a group. I believe the time has come, in our country, where our women should stop accusing men of not doing things for them. They must rise and take their rightful place in the affairs of our society. I have not heard or read anywhere that there was a woman lawyer nominated and who failed to make it to the shortlisting purely on the basis that she is a woman. As a country we have committed ourselves to the values and principles of equality and fairness among all our people taking into account our history and the need to correct the injustices of the past. There is accordingly no doubt that our country needs women judges. We can only have them if they apply when posts are advertised or consent to being nominated when approached.

My experience with those that I interact with is that they have refused the nomination and do not apply whenever posts are advertised. Perhaps what is required is a need for our respective heads of the judiciary to put in place a policy that will accommodate the particular circumstances of our women lawyers and make the positions attractive to them.

I accordingly appeal to our women and judges to assist our country by conducting mentoring programmes to our women and black lawyers and assure them that there is nothing to fear.

What is needed is the courage to make a decision without fear, favour or prejudice in accordance with the demands of our Constitution.

Maboku Mangena, attorney, Polokwane

• See SADC LA AGM news in this issue.

This article was first published in De Rebus in 2015 (Oct) DR 4.

My two cents – BSC and NBS degrees

I am 83 years old and have heard that one is never too old to learn. I have, therefore, registered for two degrees, BSC and NBS. Said degrees are unique in as much as neither are taught at any university or formal institute of learning and are free of charge.

A bit of a discouragement is that the course lasts for a lifetime and no piece of paper is ever issued as proof of successful completion. There are no formal examinations, tests or assessments. However, one may be faced with a test every day.

Lastly and most encouragingly, one awards the degrees to oneself and you may have qualified for it already.

Those among us, who are not averse to a tiny bit of misrepresentation,  may simply add said degrees to their already existing list, while the more modest add the rider (working on it).

Okay, I hear you shouting: ‘Get to the point old fart’. BSC stands for ‘Basics Simple Clear’ and NBS for ‘No Bulls**t’.

JO van Schalkwyk, attorney, Johannesburg (Still working on it).

PS: I almost forgot to mention that you may even regard said degrees as superfluous. I read in John Humphrys’ book Lost for Words (UK: Hodder Paperbacks 2005) that some bright spark defined ‘Lawyer’s Syndrome’ as: ‘If we knew what they were talking about we wouldn’t need them.’