With criticism about an all-male candidates list ringing in its ears, the Judicial Service Commission will interview candidates in Johannesburg for the Constitutional Court position of retiring Justice Zak Yacoob.
The commission’s list includes judges Selby Baqwa, Lebotsang Bosielo and Brian Spilg, and two silks, advocates Mbuyiseli Madlanga and Jeremy Gauntlett.
Section 174(2) of the Constitution expressly requires the judiciary to reflect the gender composition of the country.
Kathleen Hardy of the Centre for Applied Legal Studies at the University of the Witwatersrand said the lack of gender representation was “unacceptable” and was “not only disappointing [that there are no female candidates] but illustrates a serious underlying issue in our society as a whole and in the legal profession and judiciary in particular”.
Hardy said that “transformation requires equal representation of women. We have to ask why this is not happening when we know that there are more female law graduates than males from our universities every year. What makes matters worse is that there are very competent women in our profession with the experience and expertise to be appointed to the Bench.”
The University of Cape Town’s democratic governance and rights unit, in its submissions to the Judicial Service Commission, stated that the lack of female candidates was an issue that “requires urgent and meaningful attention”.
It also urged the commission to look at itself, and said that, if the “dearth of female candidates putting themselves forward” had roots in the commission’s own practices, then it would be necessary to address the issues openly, transparently and urgently.
The legal fraternity has been alive with suggestions that some top women candidates, including former acting Constitutional Court Justice Mandisa Maya, had declined nomination because making themselves available appeared to be a futile exercise.
The number of allegations that appointments to the highest court in the land are heavily politicised have grown in recent years. The appointment of Judge Ray Zondo to the Constitutional Court last year in October was considered as such.
A highly placed legal source said that Zondo was “not the cleverest” of jurists and that there was a sense that his appointment might be part of a broader project by the government to dumb down a court that has increasingly raised the ire of politicians for its pro-poor judgments and findings against the executive.
The University of Cape Town’s unit was previously critical of the low number of judges interviewed in the round in October last year that saw Zondo being appointed to the Constitutional Court.
Zondo was one of four candidates M&G the minimum number the Constitution requires be recommended to the president to choose from M&G who were interviewed for the position.
In its submissions to the commission, the unit stated that the short listing of five candidates “still falls some way short” of the process that the drafters of the Constitution envisaged, which was not a healthy sign for the vibrancy of the Bench.