Dominance in the legal fraternity

The Constitution is the supreme law of the land and thus serves as a cornerstone of our democracy. An effective judiciary is essential to achieve economic development in the society its serves. However, gender equity enshrined in s 9 of the Constitution still remains a central issue, which has to be addressed. The same goes without saying that there is no judicial transformation without the necessary checks and balances of gender equity or dominance in the field. Although the judiciary, among others, advocates for gender equity and women empowerment in the field – by appointing more female judges to the Bench – a lot still needs to be done. Special attention is still required to create opportunities for aspirant judges and lawyers to pursue a career in the legal sector.

The entry of female judges into spaces from which they had historically been excluded, is a positive step from judiciaries and makes the judiciary more transparent, inclusive and representative of the people whose lives they affect.

The presence of female judges enhances the legitimacy of the court and sends a powerful message that they are open and accessible to those who seek a recourse to justice.

President of the International Association of Women Judges, Judge Vanessa Ruiz, says the judiciary will not be trusted if it is viewed as a ‘bastion of entrenched elitism, exclusivity, and privilege, oblivious to changes in society and to the needs of the most vulnerable’ (www.unodc.org, accessed 27-11-2020). Indeed, citizens will find it hard to accept the judiciary as the guarantor of law and human rights if the judiciary is not broadly representative. That is why the presence of women is essential to the legitimacy of the judiciary.

Achieving equality for women judges, in terms of representation at all levels of the judiciary and on policy-making judicial councils, should be our goal, not only because it is right for women, but also because it is right for the achievement of a more just rule of law. Female judges are strengthening the judiciary and helping to gain the public’s trust.

Female judges throughout the world have earned the necessary credentials, gained accomplishments and otherwise met the standards for judicial selection. But they do, after all, live their lives as women, with all the social and cultural impacts women face, which include complex family relationships and obligations. Female judges bring lived experiences to their judicial functions, experiences that tend toward a more comprehensive and empathetic perspective. A perspective that not only encompasses the legal basis for judicial action, but also creates awareness of the consequences on the affected people.

In order to expediently achieve the goal for gender equity dominance, South Africa might also need to consider:

• Global comparative analysis on the appointment of female judges.
• Collective data that promotes gender equality.
• Monitor participatory gender audits and assessments.
• Combine the expertise of different sectors and improve collaboration for gender mainstreaming among various sectors.
• Effective mechanisms for mainstreaming gender in organisational processes.
• Implementation of learning methodology for ensuring that good gender policy intentions do not fail to be followed through in organisational practice.

Sipho Tumelo Mdhluli LLB (University of Limpopo) is a
legal practitioner at Lekhu Pilson Attorneys in Middelburg.

Some notes

I refer to the article by Juniours Moremi ‘Are tenants being robbed of their rental deposits?’ 2020 (Nov) DR 8. The author refers to the Rental Housing Amendment Bill B56 of 2013.

I would like to point out that the Bill was replaced by the Rental Housing Amendment Act 35 of 2014, which as far as I am aware, has not yet come into operation (see www.gov.za).

The article by Alex Abercrombie and Razyaan Johaardien ‘Mortgage of immovable property – a first step to alienation?’ 2020 (Oct) DR 16 is a repeat of the article published in March 2011. The re-published article has just caused confusion due to the Chief Registrar’s Circular 1 of 2020, which suspended the previous Registrar’s Circulars and these are to be referred to the next Registrar’s Conference for formal withdrawal. The current position is, therefore, that ‘mortgaging’ is no longer regarded as an ‘alienation’. This was clearly a case of closing the stable door after the horse had already bolted.

Siegfried Heiriss BProc (UFS) LLB (Unisa) Certificate in Real Estate is a
non-practising legal practitioner, conveyancer and notary at
SK Heiriss Inc Attorneys in Durban.

This article was first published in De Rebus in 2021 (Jan/Feb) DR 4.