Report on slow gender transformation of the judiciary calls for transparency

After over four years of research, deliberation and postponements, the Commission for Gender Equality (CGE) has published a response to the complaint filed in 2012 by Sonke and the Democratic Governance and Rights Unit (DGRU) about the slow transformation of the Judiciary. The complaint called for the CGE to investigate the inequitable gender representation in the Judiciary, to monitor judicial appointments for unfair discrimination and to report back on any measures in place to address gender disparities. The President, the Office of the Chief Justice, the Judicial Service Commission (JSC), and the Minister of Justice and Constitutional Development were named as respondents to the complaint.

From 2009 to 2012, the JSC appointed only 24 women as judges after interviewing over 200 people for 110 positions, just over 20 percent of applicants. Today the situation is only marginally better, where 35 percent – 86 out of 242 – of permanent judges are women.

The CGE’s report acknowledges that not enough is being done to foster gender transformation in the Judiciary, and criticises the respondents for not taking responsibility for the issue. While accepting the inadequacy of this approach, the report suggests that this may largely be because transforming the gender composition of the Judiciary is a complex process that requires the collaboration of many stakeholders with the same goal in mind. Transformation has to be taken on as a long-term project in which a range of sexist practices, attitudes and unwritten laws need to change in both the legal profession and the judicial appointment processes, the report said.

In a 2013-2014 study conducted by Sonke and the DGRU, women legal professionals reported

being pigeonholed into ‘soft’ legal fields like divorce or estate administration, instead of receiving a wider range of briefs that contribute to building up the broad case experience that judges require, and were thus less fit candidates for judicial appointment. Women legal professionals also reported receiving less mentorship opportunities than men, and according to the 2016 CGE report, often feel, “resented‚ invisible and excluded by male judges and lawyers.”

The CGE report called for private law firms to do their part to reduce unfair gender-based discrimination and promote the career growth of women lawyers, specifically by ensuring that women receive at least an equal amount of briefs as their male counterparts. This requirement was also made of the State Attorneys’ offices.

In an effort to encourage transparency and fairness, the CGE also established a set of criteria for appointing acting judges to the bench; the criteria were approved unanimously by the Heads of Court. Until now, there have been only the murkiest criteria for making these decisions and advertising these positions, and judges have been appointed at the discretion of the President after being screened and recommended by the JSC.

Finally, the CGE’s report recommends a national summit held collaboratively by the CGE, the JSC, the Presidency and the Portfolio Committee and Departments of Justice and Correctional Services. The summit will aim to engage key stakeholders in discussions about gender transformation of the Judiciary and to generate practical resolutions and a plan of implementation.

While progress is slow at these levels, this report signals a clear success in a sustained effort to refocus national attention on the issue of gender representation in South Africa’s Judiciary, as well as onto the critical need for more feminist approaches within the Judiciary.