If we are serious about the transformation of the judiciary and gender equity on the Bench all doors must be open for women judges, including doors to judicial leadership, writes Professor Omphemetse Sibanda.
In its submission to the Judicial Services Commission (JSC) regarding the upcoming October 2022 interviews for judges, the Democratic Governance and Rights Unit (DGRU), which is an applied research unit based in the Department of Public Law at the University of Cape Town, made worth-noting observations and recommendations.
Sticking out for me as a sore thumb in our judiciary, as noted by the DGRU, is the lack of women leaders in the judiciary. Yes, as observed by the DGRU great strides have been made in the gender transformation of the judiciary as in 2022 about 113 women judges are permanently appointed to the Bench out of the total 254 in the country.
This in my view does not wash away the fact that there are no women judges currently as heads of superior courts. All heads of courts in South Africa are men.
As noted by Deputy Chief Justice Mandisa Maya during her interviews: "South Africa, very disappointingly, with our lofty Constitution and all the fancy laws that ensure that equality and human dignity are achieved in our lifetime, lags far behind many countries … even in the continent, insofar as diversifying its judiciary is concerned. It's worse when it comes to putting women in leadership positions."
Maya's appointment itself as the first-ever women judge to serve as deputy chief justice in the Constitutional Court's history was a historic accomplishment and a win for all women judges in South Africa. Her appointment was lauded by many in the legal profession and held in high regard and esteem.
The current women judge leadership status is an anomaly to our constitutional democracy that subscribes to equality of both men and women and calls for transformation in every sector of our society.
Section 174 (2) of the Constitution calls for racial and gender composition of society be considered when appointing judges, including appointment to the position of judicial leadership.
Let us be reminded that our justice system is the envy of the world - or perhaps use to be the envy of the world with its outstanding independent judiciary and the Constitution that is a pacesetter in the 21st century.
The prevailing undesirable situation of zero percent women in judicial leadership as heads of superior courts can be remedied in the October 2022 interviews, where there are four vacancies for heads of court positions.
During this round of JSC interviews, Judge Norman Manoim will run solo for the position of judge president of the Competition Appeal Court.
The vacancy for the head of the Limpopo Division of the High Court will be contested by Judge Maake Francis Kganyago, Judge Arnoldus Mauritius Legodi Phatudi, and Judge Moletje George Phatudi.
Three seasoned women judges will be contesting two of the heads of court positions - Judge Baratang Constance Mocumie contesting the position of chairperson of the Electoral Court against Judge Dumisani Zondi, and Judge Thoba Portia Poyo-Dlwati and Judge Esther Johanna Sophia Steyn contesting together with Judge Mjabuliseni Isaac Madondo for the position of judge president of the KwaZulu-Natal Division of the High Court.
Nothing to celebrate
Until there are women as heads of our superior courts there is just nothing to celebrate.
To borrow directly from the DGRU submission, paragraph 20 to be specific: "We do not mean to advocate for specific individual candidates. But we do think that, in addition to considering whether candidates meet the criteria for judicial leadership positions, the overall lack of women in judicial leadership positions does need to be given serious consideration by the JSC. If women candidates are passed over for the leadership position, we would suggest that the successful male candidate would have to have exceptional qualities to distinguish them."
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Worth noting is the fact that expectations are high that we are not going to see the repeat of the comics and controversy that played itself bare publicly during the February interview of Maya for the position of chief justice where there was unequal and unfair questioning of female candidates.
Although the interviewing process itself is not a panacea for the lack of women judges as heads of courts, it is incumbent on the JSC not to have its processes aggravating the unequal plight of and the unequal position women judges find themselves in currently so far as judicial leadership is concerned.
The interviewing process must never be politicised and delegitimised with questions that do not assess the competency of women candidates but are asked to perpetuate the patriarchal and archaic view that men are better leaders.
I fully support and advocate for the view that come the October 2022 interviews, one of the many process improvements that the JSC must consider should be "a code of conduct for commissioners, and the development of a protocol to evaluate the scope of permissible questioning [DRGU, para 18]".
I am looking ahead and towards the 3 October 2022 JSC interviews with some hope. Hope that legitimacy and credibility will be fully restored to the JSC interviewing process.
In the hands of the JSC
The reputation of the South African judiciary is now in the hands of the JSC strengthened, and part of it is having women judges as heads of our courts.
If we are serious about the transformation of the judiciary and gender equity on the Bench all doors must be open for women judges, including doors to judicial leadership.
The South African Chapter of the International Association of Women Judges (SAC-IAWJ) had its 16th annual conference and annual general meeting at the University of South Africa in Pretoria from August 5 to 7 under the theme "Empowerment as a tool to fight gender-based violence: Breaking barriers and biases."
Speaking at the conference, Chief Justice Raymond Zondo emphatically underscored the importance of women judges, stating: "There are many women among us today who are brave, and standing up against corruption, state capture, and ensuring the rule of law.
"We need to celebrate the courage that women have, the bravery they have in standing up against those who want to trample on the rule of law. The courts will be ready and the women who sit in these courts are fearless; they will protect the rule of law, they will protect the rights of women, they will protect the vulnerable groups. All of us, as a people, must play our role in bringing GBV to an end."
In conclusion, I strongly believe, then and now, that women judges in South Africa will one day be appointed as heads of superior courts in a JSC process that is not determined nor defined by politics and mere male gender preference.
- Professor Dr Omphemetse S Sibanda, Legal Scholar Without Borders, is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo.
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