There were two revealing responses on Tuesday during the interviews of prospective judges by the Judicial Service Commission (JSC) in Cape Town that cast the question of the racial and gender transformation of society back to the body that is tasked to effect it in the judiciary.
In the first, advocate Roseline Nyman, responding to a question by Chief Justice Mogoeng Mogoeng on the importance of gender representation in the judiciary, asked the commission to imagine itself as a "black female who finds yourself in court and you see an all-white male Bench, what do you feel? 'Do they understand my issues? Do they understand what it's like being raped? Do they understand [my struggle to access] maintenance?'"
Similarly, attorney Kate Savage, who was contesting a single position on the Western Cape High Court Bench with Nyman, advocate Diane Davis and Nolwazi Boqwana (who was eventually recommended for the position), responded to a question from Mogoeng about why the state and state-funded organisations – consistent litigants in South Africa – largely employed white counsel.
Savage said that there was a "feeling" among such litigants that "white male teams were better" and that this "problem" translated into how people considered what an effective judiciary looked like.
"But diverse courts are better courts," said Savage. "Diverse courts bring better results because your notion of common sense starts to change when sitting next to women judges and black judges.
"You rub off on each other," she added, suggesting that individual safe zones, thought processes and perceptions, hardened by the isolating effects of apartheid and the often polarising post-apartheid experience, could eventually be replaced by deeper understanding and empathy.
Counterpointed
These two moments were counterpointed by an incident on Tuesday when commissioner Mmatlala Boroto, the ANC representative from the National Council of Provinces (NCOP), motioned to a representative from the JSC secretariat to bring her some fruit salad and ice cream. At the time of writing on Thursday, that had been Boroto's sole contribution to the JSC proceedings.
In the three years that this correspondent has covered the commission's sittings, Boroto and her NCOP colleague Peace Mabe have between them mustered about two questions for candidates.
The JSC, when sitting as a 23-member commission, has six women on it: Boroto, Mabe, Professor Engela Schlemmer from the University of the Witwatersrand, advocates Andiswa Ndoni and Leah Gcabashe, and Fathima Chohan, the deputy minister of home affairs.
The last four ask questions during the public interviews and, the Mail & Guardian understands, participate in the private deliberations the JSC holds after interviewing all the candidates for a vacancy. Boroto and Mabe apparently do not – which raises questions about the efficacy of their presence in contributing to a diverse, empathetic and rigorous selection process so needed in the JSC.
A legal academic who chose to remain anonymous questioned whether a lack of gender balance on the JSC "feeds into how female candidates were interviewed and viewed". She also said the lack of engagement by some female commissioners was "embarrassing", asking whether this might "rob the commission of a crucial gender voice", "additional perspectives" and, "insights" and sent "a message [to the public] that some women are merely tokens on the JSC".
Mogoeng certainly came to the fore this week, especially during the interviews of the four female candidates for the Western Cape High Court Bench, when he attempted both to probe the personal experiences of female lawyers in a patriarchal profession and understand the broader structural issues that appear to stymie the progression of black and female lawyers.
Tabeth Masengu, a researcher at the Democratic Governance and Rights Unit attached to the University of Cape Town, noted: "There was an increase in questions regarding gender transformation and the plight of women from the JSC.
'Incapable of being aggressive'
The chief justice, in particular, made it clear that the JSC is interested in advancing the cause of women," said Masengu, "hence all candidates were asked about specific challenges they have faced. This is encouraging and is a welcome step in acknowledging the challenges faced by all women, including judges."
Skewed briefing patterns that favoured men, battling stereotypes that women were incapable of being aggressive in court and that they could only deal with certain aspects of the law – such as family law – that hindered the variety and complexity of the cases female lawyers worked on were advanced as reasons by female candidates for why the "pool" was not filling up.
Nokukhanya Jele, spokesperson for the National Association of Democratic Lawyers, reiterated that, although Tuesday's interviews of four female candidates for the single position on the Western Cape High Court Bench was refreshing, it was also a "fluke", because representivity at the various Bar councils remained male-dominated.
But the commission's performance as a whole this week appeared to suggest it was responding to concerns about its processes in evaluating candidates. The lines of questioning were more focused and rigorous, and certainly more sensitive to issues of gender.
Mogoeng led from the front – not just on transformation issues but also on those that went to the very principles of law.
Female attorney Somaganthie Naidoo was recommended for the position on the Free State Bench. Sungaree Pather (also a woman), the sole candidate for the Electoral Court, was recommended and Judge Pule Tlaletsi, the only candidate for the position of Labour Court deputy judge president, was also given the nod, but attorney Mmakgere Shai, who was the sole candidate for the Labour Court Bench, was not. On Thursday, the JSC also recommended female attorney Segopotje Mphahlele and advocates Albert Bam, Maria Jansen and Nicoline Janse van Nieuwenhuizen for the four positions on the Pretoria and Johannesburg high courts and advocate Igna Stretch for the Eastern Cape High Court Bench in Bhisho.