Engendering the Judiciary – a South African Perspective

Recent statistics and debates in South Africa highlight that the country’s transformative vision has not stretched as far as the judiciary and legal sector. Since this is the very sector tasked with protecting, interpreting and enforcing the rights enshrined in the Bill of Rights so as to bring about social justice and the transformation of society-at-large, the facts are cause for worry. 

Despite the South African Constitution’s commitment to establishing a society based on non-sexism and the prohibition against discrimination on the grounds of gender and sex, the South African judiciary has failed to adequately represent South Africa’s female population. Speaking at the Commonwealth Law Conference in Cape Town in April, former Constitutional Court justice Kate O’Regan specifically highlighted the lack of gendered transformation within the Constitutional Court. She pointed out that while there had been racial transformation, the gendered demographics of the bench are the same in 2013 as they were in 1994, with nine male judges and two female judges. As apex courts and ultimate guardian of the constitutional rights and the project of transformation through law, this state of affairs is surely inexcusable. 

In addition to this, only 9 of the 473 senior counsel, from whose ranks candidate judges are selected, were black women, while throughout the whole of South Africa, there are only 20 white women practising as senior counsel. The Democratic Government and Rights Unit pointed out that as of October 2012, women made up only 28% of all judicial officers nationwide. This gender imbalance within the legal profession is untenable, given the growing rate of female law graduates within South Africa in the context of a transformative, constitutional democracy. The Judicial Service Commission (‘JSC’) has pointed to government for the dismal demographics at play, whereas the Justice Department has in turn blamed ‘exclusive clubs’ for failing to provide opportunities for female advocates to move up the ladder. But as the Democratic Government and Rights Unit points out, while the JSC is not solely responsible for transforming this gender imbalance, it is empowered to advise national government ‘on any matter relating to the judiciary or the administration of justice’. The JSC could therefore be expected to engage proactively with other stakeholders in order to address the systemic constraints facing women within the legal profession. What is clear is that urgent action, dialogue and collaboration among all stakeholders is necessary in order to address the deep patterns of gender inequality within South Africa.

Tarryn Bannister is Doctoral Candidate at the Socio-economic Rights and Administrative Justice Research Project at the Faculty of Law, University of Stellenbosch, South Africa.