Events at the Judicial Service Commission (JSC) interviews this week may have strengthened civil society’s case for the public to play a greater role in ensuring transparency in judicial appointments, according to activists.
Despite a strong undertaking this week to appoint more women to the Bench, the decision by the commission not to grant a woman judge a transfer to another court in the same division also called into question its real commitment to equity in the judiciary.
The Judges Matter Coalition, a group of civil society organisations, wrote to the JSC this week in an attempt to motivate against the appointment of judges who had written problematic rape judgments. But the letter was not accepted by the JSC because it was submitted too late. Members of the coalition argued in response that the JSC ought to announce its candidates earlier.
Among the candidates activists objected to was Judge Mojalefa Rampai, who had reduced a convicted rapist’s sentence because the victim, a child, did not suffer “visible … physical injuries”. But he was not recommended for the appointment in question.
The JSC interviewed candidates for high court positions in the Free State, Eastern Cape and the Western Cape, the labour court and the Water Board. Women candidates were recommended for appointment in the Free State and the Western Cape. Of the country’s 240 high court judges, only 77 are women.
One of the four candidates for the Eastern Cape vacancy was a female judge who tearfully pleaded with the JSC to grant her a transfer from her current seat in Mthatha to the high court in Bhisho. Her husband is on trial for rape, her children were deeply traumatised by his arrest and she needed to be closer to them in East London, she said.
The judge said that her eldest child was about to write his matric finals, her nine-year-old daughter was suffering extreme emotional distress as a result of the ordeal and her three-year-old son suffered from a mental disorder and needed specialist care in East London.
But judges have to show “sufficient cause” to be granted transfers and her circumstances did not persuade the JSC: it did not recommend her appointment to the Bhisho court, thus denying her the transfer.
The Judges Matter Coalition said the decision showed that, in the legal profession, female judges would be accommodated “as long as they act like men”.
Alison Tilley, the head of advocacy at the Open Democracy Advice Centre, said the judge’s application to be appointed to the Bhisho seat was “a really powerful moment in the history of the JSC, because, for the first time, the JSC had to start engaging with what gender means for judges”. It raised the question about whether the judiciary accommodated women.
“The answer, frankly, is no,” Tilley said. “You can say all the right things but [then] you cannot accommodate women in their role as primary caregivers and give them the flexibility they need to play both these roles.”
She said that five members of the JSC were women but some of their questions put to the judge seemed insensitive.
Thandi Modise, the chairperson of the National Council of Provinces, said that politicians also had to part with their children during their work. She also said that the fact that the judge’s nine-year-old was too traumatised to change schools “will not get any sympathy from us”. Her remarks seemed to suggest that, because many working women had to deal with these issues, the judge should not get special treatment. This drew one of the few comments from Economic Freedom Fighters leader Julius Malema, who offered: “Men, too.”
Responding to questions from journalists on Wednesday, commissioner Dumisa Ntsebeza denied that the commission’s decision was problematic. Like Malema, he said it was not only women who had children.
But Tilley said: “I doubt these men have been the primary caregivers in relation to their kids. Some of them may regret that. But bottom line is what they just said is that they will not accommodate women unless they behave like men.”