Gender has been catapulted into the spotlight in South Africa’s judiciary. An untransformed Bar has been identified as the main cause for the lack of women judges.
Of South Africa’s 203 high court judges, only 33 (16%) are women. There are no women judge presidents and only one deputy judge president, Judge Jeanette Traverso from the Cape provincial division.
This has compelled the department of justice and constitutional development and Chief Justice Pius Langa to launch a programme to train aspirant women judges. From the more than 300 applications received, 19 women legal practitioners were chosen to participate.
The first leg of the programme, consisting of theoretical training and led by Judge Ivor Schwartzman, was completed recently. The participants will now act as judges for the next six months.
At an awards ceremony for participants, Langa pleaded for a change of ‘attitudes and perceptions of womenâ€, while Deputy President Phumzile Mlambo-Ngcuka fingered the Bar as the main source for the shortage of women judges.
‘The Bar, the traditional source of candidates for the Bench, is not doing any better in terms of the number of women lawyers. If, therefore, the natural progression from the Bar is to continue to be the only feeder for the Bench, then the transformation process would take even longer.â€
She also pointed to other obstacles faced by women legal practitioners.
‘Those who successfully enter the profession face additional obstacles with regards to finding sufficiently challenging and rewarding work, not only to sustain their practices, but to help them grow financially and professionally.â€
Participants Soma Naidoo (a senior magistrate in Durban) and Caroline Nicholls (a senior Johannesburg attorney) agreed that sexism in the legal profession is still rife, despite some inroads that have been made.
‘Approximately equal numbers of men and women graduate from law schools across the country, with women invariably being the top achievers. But there is a discrepancy in the number of women entering the profession as opposed to men, with increasingly fewer women the higher up one goes,†said Nicholls.
‘Where are the women senior counsels or senior partners of big law firms or judges? Patriarchy and sexism deny women the opportunity and freedom to play roles at the higher levels of the profession.â€
Naidoo said strides have been made in addressing the gender imbalance on the lower court bench.
‘There are, however, still difficulties with regards to gender stereotypes; for example, family courts are seen as the preserve of women magistrates; men are seldom deployed to these courts and, in fact, are extremely reluctant to preside in the family courts.
‘As regards private practitioners at the Bar, briefing patterns are still very gendered, with women receiving instructions largely in family law and, to a limited extent, in crimiÂnal law matters. Instructions in large commercial matters are seldom given to women,†said Naidoo.
Zolile Nqayi, Minister of Justice and Constitutional Development Brigitte Mabandla’s spokesperson, answered the Mail & Guardian‘s questions about the programme and transformation of the judiciary:
Why is there a need for a programme such as this?
To create a pool from which women judges can be appointed. The under-representation of women in the judiciary was the main reason for initiating the programme.
Why are only 16% of the country’s judges women?
Women are under-represented in the legal profession, which is the main source or feeder to the judiciary. So the transformation of the judiciary will not be complete without transformation of the legal profession itself.
Should the government get involved in transforming the judiciary?
Yes, transformation is an imperative flowing from the Constitution, which enjoins all branches of the state to establish a judiciary suited to the Constitution. Government should play a facilitative role by ensuring that legislative and other measures geared to facilitate the transformation are pursued.
Is the Judicial Service Commission, which appoints judges, part of the problem?
No. The pool from which women judges are appointed is not large enough to draw a significant number of women nominees for appointment to the Bench.
How can white male judges, who are still in the majority, contribute to the transformation?
By imparting knowledge and expertise to new entrants to the judiciary.
How many women judges should South Africa have in 10 years?
In terms of the Constitution, the demography of South Africa must be taken into account in the appointment of judicial officers. Although there are no specific targets prescribed for the number of women (and black people), the profile of the judiciary should reflect the composition of South African society.