Small Steps in the Journey Towards Gender Equality on the South African Bench
The 9th July 2015 was an important day for the South African judiciary. For the first time in our history, an all-woman short-list was interviewed for a vacancy on the Constitutional Court and for the first time a woman was nominated for the position of Deputy President (DP) of the Supreme Court of Appeal (SCA). This is no small feat considering that the five candidates interviewed for the 2013 Constitutional Court appointment were all men, and the 2012 interviews had a lone woman candidate alongside three men.
I have written elsewhere that this is an important occasion for a number of reasons. However, in this post I reflect on my observations of the interview process, through which I sat as an independent observer.
The four candidates for appointment to the Constitutional Court were Justices Nonkosi Mhlantla, Leona Theron, Dhaya Pillay and Zukisa Tshiqi. Justice Mandisa Maya was the sole nominee for Deputy President of the Supreme Court of Appeal. Justice Maya’s interview for the DP of the SCA was particularly noteworthy.She has missed out twice on being appointed to the Constitutional Court leaving the legal fraternity baffled, becauseshe had distinguished herself as a well-respected, intelligent and independent-minded jurist.
When conducting the interviews, the Judicial Service Commission (JSC) devoted substantial time to assessing, as the Minister of Justice and Correctional Services put it, the potential for the candidates to make ‘dangerous judgements’. The Minister’s questions frequently focused upon the themes of the separation of powers, judicial review and the need to take ‘additional’ factors into account while adjudicating. It was clear that the elephant in the room was the ‘Bashir judgment’, a controversial episode in which Gauteng Judge President Dunstan Mlambo held that government had failed to comply with an earlier court order to detain Sudanese President Omar al –Bashir on the arrest warrant issued by the International Criminal Court (ICC). Mlambo JP added that the National Prosecuting Authority should consider criminal proceedings against those concerned . There was an avalanche of criticism from government against this decision but it was met with show of solidarity from senior members of the judiciary, triggering spirited debates on the doctrine of separation of powers. The Constitutional Court candidates all affirmed the need for an independent judiciary, confirming that if the proper application of the law would cause the ‘heavens to fall, they should fall.’
All four Constitutional Court candidates spoke of both the opportunities and challenges they encountered in their ascension to the bench. Justice Pillay recounted how she had been given an opportunity to sit on the Labour Court bench when she had never even appeared in that court. Conversely, Justice Mhlantla spoke to some of the challenges she had faced in her career: at one point while in practice having to approach the municipality to enquire why they never gave her briefs, and being told that ‘they did not know her’ which she said translated into ‘we do not trust you’. This remains a common concerns for many women in legal practice today. Justice Tshiqi spoke of how she benefited from government regulations that required that state-owned enterprises to brief Black attorneys. Whereas Justice Theron, pointed out that post-1994, gender transformation took the back seat to racial transformation and this hierarchy remains to date.
Candidates were asked about the challenges women face in the profession and what needs to be done to address them. Justice Maya’s response was poignant. She stated that when she first appeared before the JSC in the 2000, she was asked what the judiciary could do to assist women. Fifteen years later, the same question is still being asked, suggesting a lack of true commitment from those in power towards realising gender transformation in the judiciary.
The JSC has sent the list of judges to the President, signifying that all candidates are potentially appointable. Irrespective of who is ultimately appointed by the President, these interviews have provided a glimmer of hope that maybe the road to gender equality in the judicary is getting shorter.