Women come in for JSC grilling

2013-10-13 14:00

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Candidates face tough gender questions in bid for high court posts, writes Charl du Plessis

When Advocate Maria Jansen was nine months and six days pregnant with her first child, she was in court arguing a case.

The next morning, she gave birth, before returning to work four days later.

“It wasn’t easy. I suffered three miscarriages, because I never took time off. If I did take time off, attorneys would stop briefing me,” she told the Judicial Service Commission (JSC) this week in her successful interview for an appointment as a high court judge.

Appointed as an advocate in 1984, Jansen, who is one of fewer than 10 female senior counsel in South Africa, told the JSC just how much of an old (white) boys’ club the judiciary and the legal profession were under apartheid.

“I even had judges shouting at me and telling me I should go back to the kitchen and look after my children. If they hadn’t done that, perhaps I would’ve gone back to my husband,” said Jansen.

Jansen was one of seven women recommended for appointment to various high courts around South Africa. Gender transformation dominated proceedings this week.

Chris Oxtoby, a researcher at the Democratic Governance and Rights Unit, who closely follows the JSC, said the interviews were “encouraging”.

“While there are still issues with the depth of the pool of female candidates, these interviews suggest there are more appointable candidates available than is sometimes suggested,” he said.

In the past, the JSC has been criticised for prioritising gender transformation over racial transformation.

But statistics released earlier this year showed that just under 30% of South Africa’s judges are women, while the number of black judges had already exceeded the number of white judges.

Female candidates were quizzed by Chief Justice Mogoeng Mogoeng about the transformation challenges the legal profession faced. This elicited a number of keen insights.

Advocate Soraya Hassim (SC), for instance, said the “women start off at the bar (as advocates) with some work, usually unopposed divorces, and, if they’re lucky enough, they move on to opposed divorces”.

“Their 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,” said Hassim.

This was echoed by Jansen, who said many attorneys thought women could not do complex matters and, if they lost just one case, an attorney would never brief them again.

The interviews of candidates for the high courts of North and South Gauteng also raised interesting questions about the JSC’s

thinking on gender transformation and how much anti-apartheid struggle credentials count.

The commission interviewed five candidates – advocates Jansen, Hassim, Nicoline Janse van Nieuwenhuizen, attorney Segopotje Mphahlele and two men, Advocate Albertus Bam (SC) and Rean Strydom (SC) – for four spots.

Jansen clearly impressed commissioners as a white person who had fought for transformation in the legal profession.

Busani Mabunda, a representative of the attorneys’ profession and president of the Black Lawyers’ Association (BLA), commended Jansen for chairing the Pretoria Bar Council meeting where they resolved to have 50% black representation.

Advocate Ishmael Semenya (SC), one of President Jacob Zuma’s representatives on the JSC, also mentioned an incident where he and Jansen had conspired to ensure a black candidate was positively recommended by the Pretoria Bar Council, at the time dominated by men who did not consider transformation an imperative.

But Hassim and Janse van Nieuwenhuizen were grilled about what they had done to further the cause of gender transformation.

Semenya wanted to know why Hassim had a “mind barrier” to participating in a structure like Advocates for Transformation.

Hassim’s answer – that she felt she could do more within the formal structures of the Bar – did not satisfy Mabunda, who also questioned her contribution as a “member of the struggle”.

Janse van Nieuwenhuizen had a similar, but more stark, proposition put to her by Mogoeng.

He asked which candidate the JSC should recommend when faced with two women: one who “makes it her business to make the situation better for other women and (the other), who is just a woman with good legal qualifications”.

Janse van Niuewenhuizen thought carefully before saying: “I believe women are competent and I believe women should be appointed because they are competent ... I believe women are just as competent, if not more so, than men.”

The JSC recommended Janse van Nieuwenhuizen, Jansen, Mphahlele and Bam to the North and South Gauteng high courts.

» For a full list of the recommended candidates, read: Positive reaction to recommended judges, gender transformation takes centre stage

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