Unprecedented Step Taken in South Africa to Address Gender Transformation in the Judiciary

Tabeth Masengu 8th January 2013

On the 12th of October 2012, the South African Commission for Gender Equality (CGE) was served with an unprecedented complaint regarding the lack of Gender Transformation in the Judiciary. 

The Commission of Gender Equality was created by Chapter 9 of the South African Constitution of 1996 as a means of supporting Constitutional Democracy.Its duty is to promote the respect for and the protection, development and attainment of gender equality.

The Democratic Governance and Rights Unit (DGRU) of the University of Cape Town and its partner Sonke Gender Justice filed the complaint after previous efforts to bring attention to the dismal number of female judges in the country had failed.

This complaint was extraordinary not only because it was novel but also because it cited the President, Minister of Justice and Constitutional Development, the Chief Justice and the Judicial Services Commission (JSC) as Respondents.

Section 174(2) of the South African Constitution of 1996 requires that appointments to the judiciary reflect broadly the racial and gender composition of South Africa. The drafters of this Constitution saw the need to move from an Apartheid era that was plagued with inequality and discrimination to a new era that would be inclusive, democratic and non-discriminatory. While there have been great strides made in the racial dynamics of the judiciary, the gender aspect has largely been ignored.

As of October 2012, a paltry 28% of the judges in the country were female with only two of the 11 Constitutional court judges being female. When the court was set up in 1994, it had the exact number of female judges and at no time in the last 19 years have there been more than three women sitting on the court. The likely argument that there are not enough qualified women has proved flawed, as time and time again competent, qualified women have been turned down in favour of a man despite the alarming figures available.

This problem was clearly exhibited in June of 2012 when the brilliant and competent Supreme Court of Appeal (SCA) Judge Mandisa Maya was interviewed as the only female candidate in a pool of four for a Constitutional Court vacancy. While the lack of females on the court and in the country as a whole was discussed in the interviews and widely publicised in the media, two months later the president appointed another male to the court.

This was the final indication that the rhetoric from the Government and JSC bemoaning the low number of women in the Judiciary would continue unless something drastic was done. Our complaint to the CGE requested amongst other things that the Commissionconstitute an appropriate investigation into what appears to be gender discrimination in the appointment of judicial officers.

The CGE has responded to our complaint by requesting a meeting with us to discuss how we can work with various stakeholders in order to address the problem. We hope that this is a genuine request that will be the start of holistic approach to ensuring that our courts eventually broadly reflect the gender composition of our country.

Tabeth Masengu is a Research Officer at the Democratic Governance and Rights Unit of the University of Cape Town

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