A new old boys' club?

2014-07-20 15:00

"As with most things in life, women [judges and lawyers] have to stick their heads up and wave their arms, people aren’t just going to find you."

This was the response of a female advocate when asked why there are so few women in South Africa’s judiciary and legal professions. The latest statistics from the Judicial Service Commission (JSC) show that 79 (32.51%) of South Africa’s 243 judges are female. This even though Census 2011 indicated that 51.3% of the population is female.

There are only two women in judicial leadership positions and two female justices on the 11-justice bench of the Constitutional Court, the country’s highest court.

Although the number of female judges has been boosted by a renewed focus on the recognition, training and

development of female judges under Chief Justice Mogoeng Mogoeng, the situation in the legal professions remains a cause for concern.

According to the General Council of the Bar, which regulates most advocates in South Africa, women comprise just 25% of advocates, the pool from which the majority of judicial appointments are most often drawn.

Only 4.5% of advocates (116) are black African women.

Surprisingly, 56% of candidate attorneys are women, although just 37% of admitted (qualified) attorneys are women, up from 32% in 2009.

Just 13% of qualified attorneys are black women.

The advocate City Press spoke to said: “It’s easier to fix things in terms of appointments to the judiciary because the process is more manageable. You can ask people to come act [as a judge] and vet who does a good job.

“Where it’s more challenging is at the level of the profession because it is market-driven. People are paying a lot of money for legal services. Why would they commit to gender transformation?”

She said there was a bit of a “brotherhood” and that black male appointments were often absorbed into this – a kind of new old boys’ club.

A key problem is that female lawyers face a type of glass ceiling in the work they do. Several female candidates have in the past told the JSC about this during interviews.

In October last year, the JSC heard from Advocate Soraya Hassim (SC), who said: “[Women’s] white male counterparts seem to progress to a level where they get more complex work. [As a woman], you reach a certain level then stagnate, like you hit a glass ceiling.”

Sanja Bornman, an attorney at the Women’s Legal Centre, agreed that many spheres of the legal profession regard women as only “suitable” for certain types of work.

“Women are often expected to confine themselves to family law or administrative-type practices – that is until they leave to become wives and mothers,” said Bornman.

Max Boqwana and Ettienne Barnard, the co-chairs of the Law Society of SA, which regulates attorneys, said the organisation was currently trying to establish why it was that female candidate attorneys left the profession.

“It is a fact that a number of women choose to go to corporates, parastatals, the civil services (including the prosecutorial services) and academia after admission as these environments may be more flexible for women than private practice.”

But Bornman had a different take on this. She said: “It is likely that having experienced the imposition of gender stereotypes during articles [candidacy], female candidates simply choose not to put up with the old boys’ club and pursue a different career path.”

Boqwana and Barnard acknowledged an “unconscious bias” existed towards the type of work female attorneys could do and they added that “re-entry into the profession after a career break (to focus on a new or young family) is not easy”.

Former Constitutional Court Justice Kate O’Regan agreed that the challenges women faced were partly historical and partly because women still tend to work the “double shift”.

She said: “Women still tended to take greater responsibility for childcare and household management than men, though this is not invariable and might be changing.”

An apparent lack of political will was also a problem.

“Even when good female candidates have made themselves available, they have often been overlooked by the JSC and, in the case of the Constitutional Court, appointments by the president,” said O’Regan.

President Jacob Zuma has used his only two opportunities to make appointments to the court to appoint men.

At the time of the first appointment, eminently qualified Supreme Court of Appeal (SCA) Judge Mandisa Maya was one of the candidates recommended by the JSC.

The next round of judicial interviews attracted controversy because not a single woman came forward. This was partly because the interview process was seen by many as an “ordeal”, as O’Regan pointed out.

The advocate interviewed by City Press asked not to have her name published because she was contemplating becoming a judge and feared that anything she said on the record could be used against her by JSC commissioners.

With the recent retirement of Constitutional Court Justice Thembile Skweyiya, there is another opportunity for Zuma to try create cracks in the judicial glass ceiling.

If he doesn’t, it will add fuel to the perception that he is building a new old boys’ club rather than demolishing the old one.

Constitutional Court judges by the numbers

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