The Constitution stipulates that South Africa’s judiciary must become representative of the country’s demographics, and the racial transformation of the judiciary has proceeded apace. On gender, however, it has lagged. There was only one woman judge in 1994; 20 years later, a third of the judiciary is female (78 out of 240 judges). That’s an improvement but it’s not enough.
Are we beginning to catch up? The Judicial Service Commission’s work this week encourages this view. Perhaps it was the presence of the new commissioners, including independent-minded MPs such as Thandi Modise and Thoko Didiza from the ANC and Julius Malema from the Economic Freedom Fighters, but, whatever the case, the fair representation of women topped the JSC’s agenda.
South Africa will soon have its second woman judge president, this time in the Free State (the first was the North West’s Monica Leeuw). The JSC recommended Mahube Molemela.
But the commission appeared to falter when another woman judge, from the Eastern Cape, whose husband is on trial for rape, asked to be moved to be closer to her children. The JSC believed she had not made a sufficiently compelling case, outraging some who questioned its commitment to gender representivity. But it did show that the commission is not slavishly filling gender quotas. It was making some hard decisions and, in the end, left vacancies on the Eastern Cape bench instead of filling these. Neither the men nor the women candidates impressed.
When it came to labour court candidates, its judge president, Basheer Wagley, spoke glowingly of a black male candidate who has been an acting judge in the court for 18 months. Wagley told the JSC that the candidate had the support of all the judges of that court. The candidate sailed through a short interview. The next to be interviewed was a coloured woman. Benita Whitcher has impeccable credentials and extensive experience, but the JSC quizzed her at length about her temperament, with some commissioners apparently seeing assertiveness in a woman as aggression. So Wagley’s choice appeared to be a shoo-in. But the JSC, by a large majority, chose Whitcher.
It was the clearest expression that the new JSC is committed to fulfilling its Constitutional obligations. It is now up to the executive, which holds the purse strings, to make funds available for the judicial training of women so that more become eligible for appointment.