It is a shame that inequality has become sharper during our constitutional democracy than during apartheid.
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Kamraj Anirudhra and Mbuyiselo Botha
In a just society where democracy and equality reign, one would expect legitimate laws and legitimate institutions.
Accordingly, a legitimate judicial system would have an equal representation of men and women.
An equal representation of men and women in our courts has become a significant topic for debate in recent years because the law of our land and its institutions play a meaningful role in the attainment of gender equality.
In order for both men and women to move beyond only the theoretical enjoyment of all rights and freedoms, there is a requirement for an active affirmation of the rights of men and women by our judiciary.
This requirement is underpinned by a need for transformation within the ranks of judges, magistrates and even legal practitioners.
Notwithstanding the above circumstances and initiatives taken to transform the gender composition of the judiciary, the change is still disappointing.
An analysis of the gender representation within the ranks of magistrates is not encouraging.
These courts are those of first instance in most criminal and civil matters. Currently there are 384 district courts and nine regional divisions. As at April 2014 there were 1 711 magistrates, of whom only 673 were women (39%).
During democracy, 311 new judges have been appointed, among them 76 women.
Although a dismal number of women were appointed, it is heartening because, as recently as 1994, there was only one female judge in South Africa – Leonora van den Heever.
It was shocking for her to find out that in the court building there was no restroom for female judges.
She had to slip into the men’s toilet, much to the consternation of her male colleagues. Clearly, there was no expectation of women being appointed as judges.
In its Lack of Gender Transformation in the Judiciary – 2016 investigative report, the Commission for Gender Equality (CGE) states that there are 92 female and 248 male judges in South Africa.
Furthermore, the CGE found that, in addition to “deep-rooted factors that contribute to the status quo”, a significant obstacle to gender transformation was “patriarchy and sexism which continue to persist, requiring women to prove themselves in this male-dominated profession”.
These deep-rooted factors are linked to patriarchal practices within the legal profession, such as briefing patterns at the Bar, where most judges are drawn from.
These attitudes range from the notion that few women are emotionally and intellectually capable of withstanding the rigours and competitive atmosphere of the Bar to the notion that women are simply not tenacious enough to be litigators.
Patriarchal attitudes create a hostile environment for female lawyers who find it difficult to work with colleagues who make crude jokes, and patronise and objectify women.
In addition to hostile work environments, women advocates are subjected to covert patriarchal practices such as being briefed only on matters relating to divorces and maintenance claims.
The old boys’ network at the Bar also influences who is briefed and, if one does not play golf or did not attend the correct law school, one may find himself or herself performing mundane work.
These androcentric trends are deplorable and also ironic because they perpetuate the inequality and injustice which are the very problems the judiciary is supposed to address.
Why is it necessary for gender equality to be affirmed in the judiciary?
An equal society is reflected in the practice of equality.
Therefore, if South Africa has embraced equality, it would be logical to expect a key institution such as the judiciary to comprise an equal number of women and men.
This would send a philosophical message that gender equality not only existed in theory, but was a living reality.
A sincere commitment to the gender agenda is not negotiable and should not be taken lightly when viewed against the historical fight for liberation and equality by South African women struggle heroines.
It is not surprising that in a patriarchal society such as ours, there is a tendency to discount the sacrifices and valuable contributions made by women struggle heroines.
There were many other women who sacrificed their family lives, the comfort of their homes, their careers and the companionship of their loved ones in the struggle for liberation, which was in reality a struggle for equality.
Therefore, to allow patriarchy and its devastating impact on South African women to continue in any manner is offensive to the sterling contributions made by every struggle heroine.
In its concluding remarks, the CGE rightfully states that the “issues relating to gender transformation in the judiciary are broad and sensitive with no easy solution that can be advanced”.
This is indeed an honest conclusion because no quick fix exists to remedy the deep fault line called patriarchy existing in the minds of men.
It is devastating and robs institutions such as the judiciary of some of the finest minds within our society.
South Africa cannot afford this shameful phenomenon to continue because it is not only an insult to the legacy of every struggle heroine but also an expensive drain of talent and skills that our nation desperately need to transcend the difficult socioeconomic evils that bedevil us.
The oppressive nature of patriarchy robs us of women doctors, teachers, scientists, engineers and entrepreneurs who would place our nation on track towards prosperity, sustainability and stability.
Therefore, it is high time that South Africans adopted a realistic approach towards filtering from their society the toxic and degrading phenomenon of patriarchy.
Anirudhra is a parliamentary officer and Botha is a commissioner at the Commission for Gender Equality
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