Women and the judiciary

October 1st, 2014

By Nomfundo Manyathi-Jele

The South African chapter of the International Association of Women Judges (SAC-IAWJ) held its national conference from 8 to 10 August 2014 at the University of Pretoria. The SAC-IAWJ was also celebrating its ten-year anniversary. The theme of the conference was ‘reshaping women’s participation for gender equality in the South African judiciary.’

The people present at the event included recently appointed Minister of Justice and Correctional Services, Michael Masutha; Minister in the Presidency responsible for Women, Susan Shabangu; Judge President of the Gauteng Division of the High Court, Dunstan Mlambo; former Constitutional Court Justice, Yvonne Mokgoro; and former Justice Minister, Bridgette Mabandla.

Mlambo: Some practitioners regard acting appointments as ‘an act of insolvency’

Delivering the welcome address Judge Mlambo spoke on behalf of the Gauteng Division of the High Court. He said that he was going to be ‘brutally frank’ in the hope of enriching the gender transformation debate. Judge Mlambo reminded everyone that the key values of the Constitution are ‘human dignity, the achievement of equality and the advancement of human rights and freedoms’.

Judge Mlambo said that what is topical today is the slow pace of gender transformation in the judiciary. He said: ‘I surmise that the basis advanced for the call to fast track gender transformation in the judiciary is that, 20 years into our democracy, we have only one woman head of court and generally the appointment of women judges has lagged markedly behind. This is so despite the fact that women in general, and those who enter legal practice, are more in number than their male counterparts. This is according to the latest statistics from the Law Society of South Africa (LSSA) in particular.’ Judge Mlambo asked why gender transformation has lagged so far behind in the judiciary especially because the overarching injunction in the Constitution is broad representativeness reflecting South Africa’s demographics.

Judge Mlambo said that there were more than enough women legal professionals practising at various levels either in private or public practice in the country. Despite this depth of available capacity, he added, the judiciary remained behind. Judge Mlambo noted: ‘Having been a head of court for close on four years this year, I am not persuaded that there is a “sinister reason” for this slow pace of gender transformation in the judiciary. I consciously use the word sinister to illustrate the fact that I have not come across any scenario where it can be stated that that there was a conscious stratagem to keep women out of the judiciary. I hasten to concede that there may be isolated incidents pointed out to me, but those who are eloquent say one swallow does not make a summer.’

Judge Mlambo said that it is a fact that not all suitable women candidates are available to take up either acting or permanent positions due to commissions of inquiry such as the Marikana and Arms Deal Commissions which ‘swallow up’ a sizeable number of women practitioners who are suitable to take up acting appointments. He added that he finds it frustrating when women candidates do not put their names on his list to take up acting appointments. ‘It becomes a lot more stressful when I have to chase and cajole them to avail themselves. If I were to go only on the persons who avail themselves, then I will be left with an all-white lineup which is male dominated,’ he said.

Judge Mlambo said that another reason why there is a shortage of women judges on the Bench is because certain practitioners regard accepting acting appointments as ‘an act of insolvency’ because there are practitioners who make a lot of money in their practices and do not readily agree to give that up. The consequence is that they are available for very short periods of rarely more than two weeks per year in certain instances. Judge Mlambo added that this period is too short to prepare anyone for permanent appointment especially in the Gauteng Division due to the sheer volumes of work the court deals with.

Judge Mlambo went on to say that he is aware that there are women who have never acted as judges whom others feel are ready and are prepared to take up acting appointments. However, he added: ‘Litigants want judges who will deal with their matters expeditiously and without delay. For this reason it would be counterproductive to appoint women based on that criterion only especially persons who have never engaged with High Court litigation whether in argument or as instructing attorneys. That engagement with High Court work is crucial as it prepares one for the task of sitting as a judge and deciding these matters.’

Judge Mlambo pointed out that he had encouraged judges in his division to take practitioners for mentoring stints in order for them to get exposed to a judge’s environment firsthand. He added that this exposure would alleviate the lack of engagement with High Court work. Also, the exposure had proven pivotal in a number of instances in enabling those who had gone through the process to deal with the responsibility once appointed permanently.

Judge Mlambo also spoke on what he regards as anti-transformation trends. He said that white male domination of legal practice continues unabated. ‘It is a sore point to me to field these reports from judges in my division and the resistance to adapting, I am told, is always fierce.’ He added: ‘The strange phenomenon in these trends is that invariably the state is one of the parties. In one instance one of the white male silks leading one team lodged a complaint to my office when one of my judges questioned the all-white male lineup of both legal teams appearing before him. I mention this because this has a direct influence on the women practitioners who are left out of such litigation.’

According to Judge Mlambo, there needs to be sensitivity to circumstances confronting women practitioners in private practice. He said that in most instances very competent and able women practitioners are forced to take up legal positions away from practice and in government due to the dictates of their personal environments. ‘I am aware of a number of very competent women practitioners who deal on a daily basis with high level High Court litigation in their positions in government departments in particular. However due to some peculiar view that working in government renders these practitioners executive minded and therefore disqualified to be appointed as judges, we are unable to appoint them. I disagree,’ he said.

Judge Mlambo went on to say that the sooner this issue is addressed, the better it will be for the country’s jurisprudence as he knows of a number of practitioners who have engaged with serious High Court litigation locally and abroad, but whom the Judicial Services Commission is not at liberty to appoint due to the existing constraint. ‘It is our loss as we are unable to appoint practitioners especially women, who have a rounded world view and who can enrich our jurisprudence immensely’, he said.

Judge Mlambo noted that although the judiciary had been transformed compared to the apartheid era, the gender front needed work. He added that heads of court are always on the lookout for ways to promote transformation.

He concluded by reminding the judges that society’s expectations are that those who head the judiciary should provide effective leadership to ensure transformation of the judiciary in all respects.

Minister: Gender transformation in the judicial system

Minister Masutha said that judicial officers needed the courage and resilience of the women of the calibre of Lillian Ngoyi, Helen Joseph, Rahima Moosa and Sophie Williams, among others, in order to fight a different struggle, that of reversing the legacy of inequality and deprivation, overcoming poverty and landlessness, and uprooting crime and corruption.

According to Minister Masutha, the judiciary’s gender transformation championed by the Constitution is amplified by international and regional instruments and conventions that have been ratified by South Africa. He was of the view that he believes that the Convention on the Elimination of all Forms of Discrimination against Women is the most significant.

Minister Masutha stated that the transformation of the judicial system entails a broader concept of reform, which includes the –

  • reorganisation and rationalisation of the courts to align them with the Constitution;
  • transformation of the legal profession; and
  • reform of the state legal services and initiatives to improve the criminal and the civil areas of the justice system.

He added that the judicial system will be impoverished if judges, practitioners and women in general do not make their voices heard in the transformation discourse.

The Minister said that following the recent elections, parliament boasts a 45% representation of women, which is an increase from 42% in 2009. ‘This ranks South Africa third in the world in terms of representation of women in parliament. With regard to the judiciary, our statistics currently show that in our 20 years of democracy 311 new judges were appointed. Of these, only 76 are women. The situation is more acute at the Supreme Court of Appeal where out of 25 judges only seven are women while the Constitutional Court has two women judges in its 11-member panel,’ he said.

‘The limited number of women who advance to the Bench is attributed to the low number of female legal practitioners in comparison to their male counterparts. As at the end of 2013, women made 1 841 of the total number of 5 708 practising advocates on the roll of advocates. During the same time there were less than 6 000 practising female attorneys out of a total of 22 500,’ he noted.

Minister Masutha noted that special attention was required to create opportunities for aspirant judges and lawyers to pursue a career in the legal sector. He added that the Legal Practice Bill as well as the State Attorney Amendment Bill 52 of 2013, which are currently being considered by the President, are intended to level the playing field. ‘The Legal Practice Bill in particular, aims to remove barriers to the practice of law for previously disadvantaged individuals and thus widen the pool of lawyers both in the Bar and side bar. On the other hand the State Attorneys Amendment Bill will institutionalise the preferential allocation of state legal work to female and other previously disadvantaged practitioners. We are optimistic that the 75% target we have set for ourselves for the briefing of previously disadvantaged practitioners will widen the pool from which judges may be appointed,’ he explained.

Minister Masutha said that it was encouraging that judges were increasingly being appointed from the ranks of magistrates. He said that this affirmed government’s commitment to a unified judiciary that subscribes to uniform norms and standards that are aimed at guaranteeing judicial independence and the rule of law. He added that this calls for the Magistrates Commission to be more vigilant in its recruitment process as it lays a foundation for future judicial officers.

Minister Masutha concluded by acknowledging ‘the indelible contribution’ that the judiciary continues to make in dispensing justice to citizens ‘under very trying circumstances’.

He said: ‘Today there are no laws that exclude women from any career pursuit or life opportunities in the legal profession or elsewhere. My appeal to all women in the legal sorority is that, do not drop the ball when appointed to the bench but strive to excel so as to quell the perception that at times, as a country, we promote mediocrity thus compromising quality of service to our people. This criticism must not find a place in our noble profession.’

A reflection of the past 20 years

In her speech, Minister Susan Shabangu reflected on 20 years of democracy and the social context of South Africa’s justice system. She said that one way to sum up the achievements of the last 20 years is to say that, with democracy, South African society has become ‘safe’ for the rule of law since neither apartheid nor colonial South Africa was ever a safe place for the rule of law to be properly understood.

According to Minister Shabangu, in the absence of a just society and legitimate laws, judges become part of the problem.

She said that South Africa was also celebrating 60 years of the Women’s Charter of 1954. The charter called for –

  • the empowerment of men and women of all races, the right to vote and be elected to all state bodies;
  • the right to full opportunities for employment with equal pay and possibilities of promotion in all spheres of work;
  • equal pay for equal work;
  • equal rights in relation to property, land rights, marriage and children; and
  • the removal of all laws and customs that denied women such equality, among others.

‘It further demanded paid maternity leave for women, childcare for working mothers and free and compulsory education for all South African children. The demands in the Women’s Charter were ultimately incorporated into the “Freedom Charter” and used by the Women’s Coalition to lobby for their inclusion in the Interim Constitution of 1993,’ she said.

The Minister added: ‘Accordingly, for the law and its institutions to play a meaningful role in the fulfilment of the constitutional vision, there needs to be certain fundamental shifts. In my view, the key fundamental changes that need to happen within law relate to systematising equality in all aspects of the law and closing the gap between law and justice.’ She added that a closer look at the two reveals their interconnectedness and symbiotic relationship. ‘If we accept equality as real as opposed to theoretical enjoyment of all rights and freedoms, then justice is an element of equality. Furthermore, true or substantive justice is unimaginable without according equal consideration to all. The prerequisite for true or substantive justice is substantive equality,’ she said.

Minister Shabangu said the legislative review process undertaken over the past 20 years to address discrimination against women has resulted in an unprecedented body of laws on aspects including employment, property rights, family law and the eradication of violence against women. However, she said, the achievements are not without challenges.

She said that although there are laws aimed at curbing domestic violence, women continue to be subjected to violence. ‘For example, many of the problems that the Domestic Violence Act 116 of 1998 sought to address persist. This includes recidivism. In many instances victims continue to endure abuse despite having secured protection orders. In some of these cases the abuse progresses to murder or “intimate femicide”.’

In an attempt to address the incidence and prevalence of rape and sexual offences, the Criminal Law (Sexual Offences and Related Matters) Amendment Act 6 of 2012 was passed to improve prosecution and conviction. ‘However, the time it takes for rape and sexual offences cases to go to trial defeats the purpose.’

Minister Shabangu also noted that the Maintenance Act 99 of 1998 provides for garnishee orders, attachment of emoluments and orders by default but that these provisions are, however, underutilised.

She pointed out that the Recognition of Customary Marriages Act 120 of 1998 (RCMA) had been promulgated to recognise and regulate customary marriages, but that the implementation of this Act had a number of hurdles arising from interpretation difficulties and a lack of knowledge of the RCMA by public officials and the general public.

‘Despite the absence of explicit sanctions for non-registration in the RCMA, there are many indirect sanctions for those who have not registered their customary marriages, especially women who have to prove the existence of the marriage for many reasons, including getting their inheritance or share of the estate’.

Minister Shabangu also highlighted unequal access to land as one of the main key forms of economic inequality, which has dire consequences for women.

To conclude, Minister Shabangu said that, although unjust legislation against women generally had virtually disappeared, ‘the whole world remains patriarchal, with men dominating all aspects of life – from the family to politics, business and the workplace, including the judiciary and the legal profession – that is why always before the Judicial Service Commission interviews, you will hear debates about women’s lack of experience to be appointed as judges,’ she said.

Continuing judicial education

Supreme Court of Appeal Judge Ronnie Bosielo spoke on continuing judicial education and mentorship. He said that continuing education was imperative because, according to him, it had become impossible to keep pace with critical legal developments. The only sure way for judges to keep pace with the development of the law domestically and internationally was through continuing legal education.

Judge Bosielo said: ‘In its bold and laudable efforts to translate the pious words in our Constitution into reality for our people, our courts, in particular, the Constitutional Court has developed a veritable body of case law suffused with constitutional values, adding to our new constitutional jurisprudence. Our courts have created a new and impressive jurisprudence on inter alios, fair trial rights, the death penalty, the rights of children; the right to dignity, equality, education, environment, housing, health etcetera. In addition, there are tomes and tomes of new legislation which have come from Parliament …’. He added that it is because of these factors that continuing education is needed.

Judge Bosielo noted that providing judicial training for lawyers would ensure that all judges receive the same training and are exposed to the same curricula. ‘Hopefully, this will result in our judges sharing the same constitutional values and legal philosophy which will help us to avoid producing conflicting judgments. The result will be judgments which are clear and consistent with our constitutional values. To my mind, this will help to engender and maintain the confidence of the public in the judicial system – something without which the justice system will not be able to function efficiently and effectively. Needless to state that the loss of confidence and trust by the public in the judicial system is a serious threat to the rule of law and a recipe for lawlessness and anarchy – the nemesis of a constitutional democracy,’ he said.

According to Judge Bosielo, the delivery of effective and efficient justice in a country relies primarily on the abilities, competence and knowledge of its judges, and for judges to be efficient, they have to know the law. ‘However the reality is that the law, like human beings, is never static. It is dynamic. It grows, changes and adapts to new circumstances as the people change their lifestyles. It is only through a process of continuing judicial education that we can keep pace and remain abreast of all developments in the law and in society,’ he said.

Judge Bosielo said that judges owe it to the people to keep themselves informed and knowledgeable. He added that this will enable judges to deal effectively with the new challenges brought about by rapid cultural, sociological and technological changes in people’s lives. ‘This will enable us as judges to appreciate the society in which we operate; a judiciary which will appreciate the impact which its judgments have on the people; a judiciary which is not perceived to be living in ivory towers, far removed from the daily realities of the people it is supposed to serve; and a judiciary which sees and uses the law as a potent tool for social transformation,’ he said.

Judge Bosielo said that to be good judges, judges have to remain students of the law throughout their judicial careers. ‘After all, this is one of the essential attributes of a good judge,’ he added.

Equal representation of women

Tabeth Masengu, a researcher at the Democratic Governance and Rights Unit at the University of Cape Town, spoke on equal representation of women at all levels in the judiciary.

Ms Masengu looked at the potential avenues for women after law school. She listed these as –

  • prosecution;
  • articles of clerkship;
  • pupillage;
  • academia;
  • legal advisers/researchers; or
  • magistracy.

Ms Masengu also looked at the potential pools for judges. She said that these are –

  • advocates, from which the most successful candidates have emerged;
  • the attorneys’ profession, from which there has been a fair amount of appointments;
  • the magistracy, from which there has also been a fair number of appointments; and
  • academia, which has not been tapped into for the last ten years.

Ms Masengu went on to give a few statistics. Speaking on the attorneys’ profession, Ms Masengu said that this was a popular route for graduates as clerkship is paid. She said that nationally, there are 22 473 attorneys and that 8 301 or 36% of them are women. Ms Masengu said that what is interesting about this fact is that 56% of candidate attorneys are women. She asked what happens to women attorney graduates (see 2014 (Sept) DR 20).

Speaking on advocates, Ms Masengu said that pupillage was expensive and generally for the privileged few. She noted that of the 2 571 advocates registered with the General Council of the Bar, 645 or 25% are women of which 35% are black. Ms Masengu said that as of April 2014, there were 451 senior counsel of which 27 are women and nine are black.

According to Ms Masengu, there are 1 711 magistrates in the country, 673 of them are women of which 64% are black.

Ms Masengu said that in the last four years, 262 candidates were interviewed by the JSC for 134 positions. Of these, 82 candidates or 31% were women. Ms Masengu pointed out that 155 candidates were successful; 40 of these were women.

Nomfundo Manyathi-Jele, nomfundo@derebus.org.za

This article was first published in De Rebus in 2014 (Oct) DR 10.