JSC: ‘Boys Club’ hinders gender parity in legal profession

Two female candidates have lamented the blockages that female lawyers and judges face within the legal profession. These include a “boys club”, which gate-keeps positions for its peers, and a head start given to their male counterparts by virtue of their historical privilege, which necessarily means male candidates are more experienced. 

The Judicial Service Commission (JSC) interviewed candidates for the position of Judge President (JP) of the Bloemfontein high court on Tuesday. There are also vacancies for the high courts in the Western Cape and Eastern Cape, and the Labour Court. Four candidates for the Free State position were interviewed on Tuesday: two women and two men. This brought the thorny issue of gender parity in the legal profession to the forefront of proceedings. 

Judges Constance Mocumie, Jake Moloi and Mojalefa Rampai were interviewed for the position in April, when the JSC held interviews for the same position, but appointed no one, to the disappointment of many critics of the JSC’s track-record on pursuing a transformation agenda. All three candidates reapplied for the position, while Judge Mahume Molemela joined the contest for the position on Tuesday. Despite constitutional imperatives to pursue gender representation and to rectify the injustices of the past, the legal profession has a long way to go: out of some 239 judges, only 77 are women. 

Opportunities for women
Both female candidates, Molemela and Mocumie, on Tuesday explained that in the profession, judges are invited to act in the high courts by their peers. It is not customary for a candidate to ask to be appointed as an acting judge. This leaves the cherry picking of prospective judges up to the “boys club”, which has traditionally dominated the industry, generally. Candidates were specifically asked about their views on transformation on Tuesday, perhaps indicating that the JSC itself views the issue as highly significant when making this appointment. 

Mocumie has been acting in the Supreme Court of Appeal since December 2013. On Tuesday, in a marathon interview that spanned nearly three hours, she said the challenges faced by the Free State bench included divergent views on the meaning of transformation. She said the bench lacked legitimacy in the eyes of the public when women judges were not the norm, and said it was important that women be appointed to ensure that all the views of society were heard and understood. 

Mocumie added that women were simply not given the opportunities that would allow them to be considered for senior positions in the profession. Molemela raised a similar point when asked why she had not occupied any leadership positions during her twelve years as a magistrate. She said women were simply not given opportunities to lead, giving their male counterparts a head start when opportunities to move up in the ranks progressed. Both candidates were queried about whether their more senior colleagues on the bench would accept their appointment, should either of them become the Judge President. 

Moloi told the JSC that he had always been committed to gender transformation, having mentored and promoted women during his career. But he said merit and experience should not be sidelined. “Policy and the Constitution dictates that we advance the cause of women and I fully support that,” Moloi said. “But we cannot sacrifice merit and experience for policy’s sake. That doesn’t mean I won’t support one of them if appointed – they will find my full support. Ask them how many of their judgments they send to me to scrutinise…”

Rampai, presently acting as the JP of the Free State high court, is the most senior candidate. During the interviews in April, it emerged that former JP, Thekiso Musi, had snubbed Rampai for the position of permanent JP by bringing in Western Cape judge Nathan Erasmus to act. Rampai said at the time he had felt “insulted” by the move, and did not attend Musi’s farewell party in protest. On transformation, Rampai admitted that the profession remained dominated by men. But, like Moloi, he seemed cautious about appointing women perceived to be junior.

“The constitutional imperative is very clear. The constitutional imperative is that women, worth just as much as men, should be given the opportunity to advance. The professional remains dominated by men,” he said. Chief Justice Mogoeng Mogoeng asked Rampai directly what the JSC should do, given that two men and two women were available for the position of Judge President. “I do not doubt the capabilities of my two sisters. They are great women. But I have to be frank, they are still relatively young. They still need time to mature to become leaders of the division. I have no doubt that with the passage of time they will mature to earn the respect of their colleagues. Every profession has its traditions. In judicial traditions it is very difficult to get a very junior colleague to lead a group of senior colleagues.” 

Mogoeng said he had also been “younger than many of my colleagues” in various positions he occupied, including his time as judge president and as the chief justice.  “Perhaps things just went against tradition in my case,” Mogoeng said.  Rampai replied, “All animals are equal, but some animals are more equal than others.”

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever. But it comes at a cost. Advertisers are cancelling campaigns, and our live events have come to an abrupt halt. Our income has been slashed.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years. We’ve survived thanks to the support of our readers, we will need you to help us get through this.

To help us ensure another 35 future years of fiercely independent journalism, please subscribe.

Sarah Evans
Sarah Evans

Sarah Evans interned at the Diamond Fields Advertiser in Kimberley for three years before completing an internship at the Mail & Guardian Centre for Investigative Journalism (amaBhungane). She went on to work as a Mail & Guardian news reporter with areas of interest including crime, law, governance and the nexus between business and politics. 


Safety at schools: ‘Keep your distance and your pen’

The department of basic education has developed guidelines to assist schools with minimising the spread of the coronavirus

‘Soon he’ll be seen as threatening, not cute’: What it’s...

There is no separating George Floyd’s killing from the struggles black people have faced ever since the first slave ships landed on these shores

How schools could work during Covid

Ahead of their opening, the basic education department has given schools three models to consider to ensure physical distancing

Press Releases

Mining company uses rich seam of technology to gear up for Covid-19

Itec Direct technology provides instant temperature screening of staff returniing to the workplace with no human contact

Covid-19 and Back to School Webinar

If our educators can take care of themselves, they can take care of the children they teach

5G technology is the future

Besides a healthcare problem Covid-19 is also a data issue and 5G technology, with its lightning speed, can help to curb its spread

JTI off to court for tobacco ban: Government not listening to industry or consumers

The tobacco ban places 109 000 jobs and 179 000 wholesalers and retailers at risk — including the livelihood of emerging farmers

Holistic Financial Planning for Professionals Webinar

Our lives are constantly in flux, so it makes sense that your financial planning must be reviewed frequently — preferably on an annual basis

Undeterred by Covid-19 pandemic, China and Africa hold hands, building a community of a shared future for mankind

It is clear that building a community with a shared future for all mankind has become a more pressing task than ever before

Wills, Estate Administration and Succession Planning Webinar

Capital Legacy has had no slowdown in lockdown regarding turnaround with clients, in storing or retrieving wills and in answering their questions

Call for Expression of Interest: Training supply and needs assessment to support the energy transition in South Africa

GIZ invites eligible and professional companies with local presence in South Africa to participate in this tender to support the energy transition

The best local and international journalism

handpicked and in your inbox every weekday