/ 3 October 2015

The Bench’s default is still set to ‘male’

Unbalanced: The Judicial Services Commission has done an impressive job in changing the racial composition of the Bench
Unbalanced: The Judicial Services Commission has done an impressive job in changing the racial composition of the Bench

Dismayed that only 24 of the 110 judicial vacancies between 2009 and 2012 were filled by women, the Democratic Governance and Rights unit at the University of Cape Town and the Sonke Gender Justice Network complained in 2013 to the Commission for Gender Equality.

At the time, of the 240 judges in office, 151 (63%) were black; 87 (37%) were white. The gender composition revealed a different story: 72 (30%) were women; 168 (70%) were men. Leadership positions in the judiciary were held by black men, save for one white man and one black woman.

Equally telling is the composition of the Constitutional Court. At its inception, in 1994, it had two women justices. Twenty years later, it still only had two women. Like the Springbok rugby team’s racial composition, little had changed in 20 years, save for a fleeting period when the court had three women justices.

But unlike rugby, where Heyneke Meyer appoints a representative body, the Judicial Service Commission (JSC) is responsible for judicial appointments.

The overall picture painted by these statistics is revealing. The JSC has done a rather impressive job in the racial transformation of the Bench, particularly when it is remembered that 25 years ago, there were almost no black judges.

But the gender picture is far from satisfactory. Perhaps the most significant act in eschewing awareness of the imperative to transform the Bench’s gender occurred when in 2009, President Jacob Zuma appointed only one woman to the Constitutional Court when he could have appointed two.

The consequent complaint lodged by the two nongovernmental organisations has resulted in a report of the gender commission, which is now with Zuma. From reports, it appears that the commission has highlighted the lack of certainty in how the JSC recommends appointments, which, in turn, is caused in part by a lack of clear criteria for the JSC to employ in its decision-making process.

A far less understandable reason offered by the commission for the slow progress is the inaccessibility of venues the JSC chooses to conduct its interviews. Why this should present a problem to a suitably qualified applicant when the JSC could pay for a flight to Cape Town or Johannesburg is beyond this columnist.

The commission’s observations about the lack of female leadership of the Law Society and the Bar, and the pervasive patriarchy and sexism in the legal profession, are obviously on the mark. This doubtless explains the further point made: the unwillingness of suitably qualified women to make themselves available for appointment.

It is to be hoped that a holistic solution is developed to deal with this problem, which is not unique to South Africa. After all, it was only under President Barack Obama that the United States Supreme Court increased its complement of women to three out of nine and similar patterns are evident in many countries where the legal profession remains an “old boys’ club”. For example, Lady Hale is the only woman on the 11-person United Kingdom Supreme Court. This comparative illustration of male dominance among judges reveals that appointment is arguably the end result of a deep-seated pattern of patriarchy and sexism, which requires an immediate response.

In preparation for this column, I contacted friends in the legal academy about their experiences in four different institutions. To a person, they reported that women students always feature in the top five of each class and often in greater numbers than their male colleagues. It is what occurs thereafter that is important.

Many law firms have a clear bias in favour of men, often not overtly but in the subconscious adherence to a dominant male norm. It is far more likely that a man with a pedestrian intellect will flourish over a far more competent woman. When it comes to the Bar, many firms do not brief women, even as a second junior. Perhaps if a woman advocate has clerked at the Constitutional Court she will find the going easier, but the level of sexism in briefing patterns is one of the great reasons for the fact that, out of 2?384 practicing advocates in 2013, only 561 were women. Needless to say, senior members of the Bar need to wake up and smell the demographic coffee when they look at the composition of the teams they lead.

A further problem that, admittedly, has been addressed by some firms and groups at the Bar, but that requires a holistic solution, concerns maternity and paternity benefits so that having children does not constitute a barrier to entry or continuation in the profession.

None of these structural remedies should prevent the JSC from adopting a more coherent appointment policy in the immediate future. Indeed, the mix between demography and transformative mindset for judicial office requires transparent attention by the JSC.

But we should not think a few more appointments of women to the Bench solves the problems that prompted the nongovernmental organisation’s initial complaint. For once we need to produce a coherent and substantive plan that deals with the fundamental causes of this pressing problem.