Escolar Documentos
Profissional Documentos
Cultura Documentos
LACK OF GENDER
TRANSFORMATION
IN THE JUDICIARY
INVESTIGATIVE REPORT
2016
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And
The Presidency
The Minister of the Department of Justice and Constitutional Development
Judicial Service Commission
Chief Justice of the Constitutional Court Respondents1
1
As per the lodged complaint
2
Omphitlhetse , Mooki , The Star Newspaper , August 2012: “ Women can do it too”
3
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CONTENTS PAGES
1. Introduction 6
2. Parties 7
4. Legal Framework 12
8. Conclusion
61
9. Annexures
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1. INTRODUCTION
1.2. In terms of section 187 (1) of the Constitution, the CGE is specifically
mandated to:
1.4 The investigative report shall focus on the formal complaint lodged
with the CGE regarding the lack of gender transformation in the
judiciary. The report will avoid being voluminous and overwhelming
in nature and shall ensure brevity in order to focus on the salient
findings and recommendations.
1.5 From the onset, it must be recorded that the slow pace of gender
transformation is a broad and highly intricate issue requiring a holistic
approach.
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It must take cognisance of the fact that members of the judiciary are appointed
from among the members of the practicing legal profession and hence that
the culture prevalent within the profession, the attitudes of its members about
gender issues (amongst other things), the status of women within the profession,
and the practices both within the profession and within the judiciary (including
practices surrounding the appointment of acting judges and possible sexism
within the judiciary) will affect the pace and the quality of gender
transformation in the judiciary”3.
2. THE PARTIES
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It is further noted that they list as one of their focus areas, Judicial
Governance: -
5 http://www.dgru.uct.ac.za/dgru/focus/judicial_governance/appointments
8
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6
http://www.genderjustice.org.za/about-us/vision-a-mission/
7 http://www.genderjustice.org.za/policy-development-advocacy/strengthen-south-africa-judiciary/
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Jacob Zuma.
On the 12th of October 2012, DGRU and SONKE lodged a complaint with the
CGE9. The complaint pertains to the gender discrimination in the appointment
of judicial officers in South Africa. It has been submitted to the CGE that gender
transformation in the judiciary has not progressed at a significant pace in
consideration of section 174 of the Constitution which states that the
appointment of judicial officers must reflect broadly the racial and gender
composition. It has further been submitted that during the period of 2009-2012,
the Judicial Services Commission interviewed a total of 211 candidates for 110
positions and only 24 women were appointed.
At the time the complaint was lodged it was noted from the Law Society
statistics of 2012 that there were more female law graduates than male, and
more female admitted attorneys than male admitted attorneys. It was further
noted that statistics from the General Bar Council showed that there were 561
female practising advocates nationally from a pool of 2384.
As a result of the aforementioned it was submitted that the following legal and
constitutional rights are violated:
• The right to equality as articulated in section 9(3) and (4) of the Constitution
of South Africa. The unfair discrimination is based on gender.
8
At the time of receipt of the complaint, it was the Minister of Justice and Constitutional Development,
Honourable Jeff Radebe.
9
As per the formal complaint form.
10
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It was further submitted that the following instruments, which South Africa is a
signatory to, have also been violated:
• Article 9(2) of the Protocol on the Rights of Women. It has been submitted
that there has been a failure to have an increased and effective
representation and participation of women at all levels of decision-making,
and in this particular, the judiciary.
• Article 7 (f) of the SADC Protocol and Gender and Development that
requires that women to have equal representation on all courts.
The Complainants noted that the complaint is lodged in the public interest10
and sought the following relief / remedies: -
2. That the CGE investigate why there are significantly more male judicial
officers currently in office than female judicial officers and why this disparity
continues to exist despite the content of section 174 (2).
10
Affirms locus standi. Moreover, the CGE was approached as “it is tasked by the Constitution with the duty to
promote the respect for and the protection, development and attainment of gender equality. Further, the
Commission has the power to monitor, research, lobby and report on issues concerning gender equality. The
appointment of female judicial officers and the attainment of gender equality in judicial officers is thereof an
issue that sits squarely at the heart of this constitutional obligation”
11
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4. That the CGE investigate whether steps have been taken to address the
gender disparities in the judicial appointments process.
6. The CGE investigate the status of the project on racial and gender
transformation in the judiciary instituted by Rashida Manjoo, a former
Commissioner of the CGE attached to the parliamentary portfolio during
her tenure in 2005.
7. That the CGE engages with the Judiciary, the Judicial Services Commission,
the President, the Ministry of Justice and all other relevant stakeholders in
order to identify barriers in the legal progression that impede the
appointment of females to judicial positions”.
It is recorded that the CGE, in light of its financial limitations and jurisdictional
parameters, has attended to the gist of the complaint and not every stipulation
as delineated by the Complainants. The independency and impartiality of the
CGE is re-emphasised and cannot be subjected to entities’ directives.
4. LEGAL FRAMEWORK
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Access to Justice
13
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4.1.3 Vienna Declaration 1993 and South African National Action Plan for
the Promotion and Protection of Human Rights.
14
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15
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Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country;
and
Believe that South Africa belongs to all who live in it, united in our
diversity.
Improve the quality of life of all citizens and free the potential of
each person; and
17
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(2) The state must respect, protect, promote and fulfil the rights
in the Bill of Rights.”
18
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“Section 9: Equality
1. Everyone is equal before the law and has the right to equal
protection and benefit of the law.
4. *
No person may unfairly discriminate directly or indirectly
against anyone on one or more grounds in terms of
subsection (3). National legislation must be enacted to
prevent or prohibit unfair discrimination.
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2. The need for the judiciary to reflect broadly the racial and gender
composition11 of South Africa must be considered when judicial
officers are appointed.
b. The President may make appointments from the list, and must
advise the Judicial Service Commission, with reasons, if any of the
nominees are unacceptable and any appointment remains to
be made.
11
Own emphasis added.
20
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6. The President must appoint the judges of all other courts on the
advice of the Judicial Service Commission12.
12
Own emphasis added
21
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177: Removal
22
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23
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24
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In accordance with the section 5 here above, the Minister14 has published the
procedure utilised by JSC for the nomination of candidates for appointment as
permanent Judges. The following diagram gives a simplistic overview of the
nomination and appointment process of Judges: -
14
Regulation Gazette, No. 24596, 27 March 2003
25
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Members of the JSC may within 7 days of receipt of the short list
request “ the Secretary of the Commission in writing to add to the
short list the name of any candidate who was duly nominated but
who was not included in the short list and who the member feels
strongly should be added to the shortlist or candidates to be
interviewed”16. Thereafter , the name of any such candidate shall
thereupon be added the short list.
The short list is then provided to key institutions for comment and
“publicly announced for comment by a specified closing date” . It
is noted that the CGE does not form part of the said institutions as to
date , the JSC has never formally sent the CGE the list but rather CGE
has received same by means of the media and / or the
Constitutional Court mailing list. Per the definition clause , institutions
encapsulates : “the Law Society of South Africa, the Black Lawyers
Association, the Department of Justice and Constitutional
Development, the General Bar Council of South Africa, Magistrates
Association of South Africa, the National Association of Democratic
Lawyers, the Society of Teachers of Law and the Association of
Regional Magistrates of South Africa, and such other institutions with
an interest in the work of the Commission as the Commission may
identify from time to time”.
The interview process is made open to the public and media . The
JSC deliberate in private and by consensus or if required by majority
vote, select candidates for recommendation in accordance with
the overarching constitutional prescripts.
15
After the screening process
16
Section f 2(ii)
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“This decision is in line with the JSC’s principle that the process of
judicial appointments should be open and transparent to the public
so as to enhance public trust in the judiciary.
3 Would his or her appointment help to reflect the racial and gender
composition of South Africa?
Supplementary Criteria
17
10 September
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It has been widely reported that women are not adequately represented in the
legal profession and in turn the judiciary within South Africa. Both the South
Africa CEDAW periodic report and the Non-Governmental shadow report
reflect this shortcoming.
As such, it must be pointed out that meaningful transformation (in its broadest
sense) has been slow in the legal profession. Men dominate the top positions in
the profession (senior partners of law firms, senior counsel at the Bar and senior
members of the judiciary) and in private practice these men are more often
than not white. According to the 2013South African Legal Fellows Network
survey,18 South Africa’s major corporate law firms are still dominated by white
men, especially its upper echelons. In the 12 large firms canvassed 80 per cent
of the chief executives were white men, as were 72 per cent of all managing
partners. The picture at the CEO/managing partner level was replicated in the
ownership and remuneration structures of the firms: 53 per cent of all equity
partners were also white and male. While the judiciary has done better than
18
See Mapula Sedutla“Necessary Transformation” vol. 10 (2013) De Rebus 114. See also CALS & Foundation for
Human Rights Report “Transformation of the Legal Profession” (2014) at 5.
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the profession at large in changing its racial profile, the same is not entirely true
for changing the gender composition of the judiciary. Over the past 20 years the
number of women on the Constitutional Court has remained unchanged: two
in 1994 and two in 2014 while the percentage of women in other High Courts
remains below 30%: as at October 2013, there were 77 women judges out of a
total of 239 in South Africa.19
The number of women recently shortlisted by the JSC for various vacancies on
the High Courts, suggest that while progress is being made, there appears to
be a shortage of women candidates viewed as appointable by the Judicial
Service Commission (JSC). Since June 2012 there has been two rounds of
interviews for appointments to the Constitutional Court. During these two rounds,
nine candidates were interviewed, of whom eight were men and one was a
woman. Out of these two processes, two men were appointed. At the level of
the Supreme Court of Appeal (SCA), there have been three interview processes
since June 2012. Fifteen candidates were interviewed. Of these candidates,
there were 13 men and two women. Six men and one woman were appointed
out of these processes. At High Court level, which includes the Labour Appeal
Court, Labour Courts, Electoral Courts and Land Claims Courts, there have been
four interview processes. During these processes, 61 candidates were
interviewed, of whom 32 were men and 29 were women. These processes led
to the appointment of 17 men and 14 women judges.20
The CGE during compilation of its CEDAW baseline report noted the following
statistics within the judiciary21: -
19
CALS & Foundation for Human Rights Report “Transformation of the Legal Profession” (2014) at 6.
20
CALS & Foundation for Human Rights Report “Transformation of the Legal Profession” (2014) at 6.
21
Statistics provided by the JSC in 2013
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Eastern Cape: 12 5
Grahamstown & Port Elizabeth
Bisho 3 1
Mthatha 4 3
Western Cape 23 10
North West 3 3
Free State 10 4
North & South Gauteng 62 22
KwaZulu-Natal 18 9
Labour Court 6 4
Total 173 74
The JSC rightly commented on the progress made since 27 April 1994: -
There were 165 Judges, 160 of those were white men, three were black men and
two were white women. At that stage there was no black woman Judge in South
Africa.
180
160 Men
140 Women
Progression / Comparison: 120
100
1994 to 2013
80
60
40
20 Men
0
1994 2013
22
For the compilation of CGE’s CEDAW baseline report.
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23
Response to CGE questionnaire – CEDAW
31
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The Law Society of South Africa (LSSA) noted a total membership of 21 463 of
which 7577 being female and 13 717 males24.
It has been recorded that female judges have reported feeling resented,
invisible and excluded by male judges and lawyers. This in turn provides further
motivation for increased visibility of women in the judiciary as it is essential to
breaking down these patriarchal stereotypes and normalising the way in which
female judges are perceived and treated25. To date there are no substantive
remedies mentioned for the lack of female representation within the judiciary26.
Updated statistics regarding paucity in the judiciary27 As received from the JSC
in April 2016.
24
Statistics provided by JSC as at June 2013
25
http://www.ghjru.uct.ac.za/pdf/More_women_on_the_bench_offer_a_better_gender_perspective.pdf
26
http://www.iol.co.za/news/crime-courts/more-women-judges-needed-1.1411929
27
As received from the JSC in April 2016.
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PERMANENT JUDGES
80
AFRICAN MALE
70
AFRICAN FEMALE
60
NUMBER OF JUDGES
COLOURED MALE
50
COLOURED FEMALE
40
INDIAN MALE
30
INDIAN FEMALE
20 WHITE MALE
10 WHITE FEMALE
In summary, all the information sourced during the investigation, legal writings,
CGE’s institutional analysis and gender disaggregated statistics clearly illustrate
that the judiciary is not reflective of the broader racial and gender society in
which we live.
The following shall provide a visual illustration of the processes taken in the far
reaching investigation.
28
Includes methodology used in support of the final recommendations
33
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Lodged Complaint
c) What measures are being implemented to ensure that more women are
nominated, short-listed, interviewed and appointed into judicial positions?
29
Right of reply
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g) Kindly identify the barriers that exist within the profession that impedes the
appointment of females to judicial positions and how will this be
addressed?
The CGE’s analysis of the responses of each entity can be seen hereunder30:-
6.1 Presidency
“It is therefore recommended that you must consider engaging with the
JSC, the Minister responsible for the administration of justice, the office of
the Chief Justice, as well as other legal professional bodies”.
30
Copies of the responses are annexed hereto marked Annexures A 1 – 3
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The CGE accords with this view as despite legislative prescripts, the call for
nominations require submission of candidates who have requisite legal
capacity and expertise required for the judicial role. Consequently, role
players / parties such as institutions of higher learning, law firms, law
societies, the respective advocate bars and non-governmental
organisations all need to have a common and co-ordinated role to play
in the development of women to take the heralded position of a Judge.
In reply to the previous question, solace may be taken from the comments
made by Deputy Minister of Justice, John Jeffery at the end of 2014 during
a seminar titled “Gender transformation within the Legal Profession32”: -
“It is also encouraging to note that of the briefs given to counsel by the
State Attorney here in Cape Town, nearly half have gone to female
practitioners. In the last financial year a total of 572 briefs were given to
31
The allocation of briefs to previously disadvantaged persons
Initiated by the Western Cape branch of the National Association of Democratic Lawyers (NADEL), in partnership
32
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counsel, of those 272 briefs went to female advocates and 300 to males. Of
the 272 briefs that went to female counsel, 94 were given to African females,
94 to Coloured females, 47 to Indian females and 37 to white females.”33
The policy framework recognises the need for transformation and cites
measures to accelerate the process. The most significant measure is the
establishment of a Solicitor General who would consolidate and integrate
services within the Department to streamline civil litigation of the State and
oversee transformation. The policy framework also notes with concern the
lack of paucity within the legal fraternity and cites how the Department
shall increase briefing to women: -
33
“A Framework for the transformation of the State Legal Service Opening the doors of access to equal and
affordable justice for all”, Department of Justice and Constitutional Development (2012)
34
http://www.news24.com/SouthAfrica/News/New-solicitor-general-position-will-drive-transformation-of-the-legal-
profession-Masutha-20150519
35
Published for comment in 2012
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The other percentage changes in our magistracy since 1998 show that the
number of Indian females have increased by 363%, Coloured females by
1120% and white females by 17%. For the first time in the history of the
magistracy we now have more women than men at the level of Chief
Magistrate. Of the 18 Chief Magistrates, 10 are female (six African females,
two Indian females, one Coloured female and one White female). Of the
nine Regional Court Presidents, four are female37.
36
59 % women.
37
http://www.gov.za/deputy-minister-john-jeffery-gender-transformation-legal-profession-seminar
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At the time of the Ministry’s response, the Legal Practice Bill had not been
promulgated, however, the Ministry in the response affirms that the statute
seeks to address the obstacles placed in the path of women in the journey
towards judicial appointment. Nonetheless, the CGE observes that the
Legal Practice Act 28 of 2014 will take a considerable period for full
implementation38.
The currently operative sections concentrate on the National Forum and its
objectives as per Section 97 (1)
(1) The National Forum must, within 24 months after the commencement of
this Chapter—
(a) make recommendations to the Minister on the following:
(i) An election procedure for purposes of constituting the
Council;
(ii) the establishment of the Provincial Councils and their areas
of jurisdiction, taking into account the factors referred to in
section 23(2)(a);
(iii) the composition, powers and functions of the Provincial
Councils;
(iv) the manner in which the Provincial Councils must be elected;
(v) all the practical vocational training requirements that
candidate attorneys or pupils must comply with before they
can be admitted by the court as a legal practitioners;
(vi) the right of appearance of a candidate legal practitioner in
court or any other institution; and
(vii) a mechanism to wind up the affairs of the National Forum;
38 http://www.lssa.org.za/index.php?q=con,367,History_of_the_Legal_Practice_Act
39
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Ironically, the cliché “a picture paints a thousand words” shows the lack of
paucity within the Forum itself40.
40
- 14 men to 16 women.
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In reply to the CGE’s draft investigative report, the Minister of Justice and
Correctional Services cited support for the CGE’s recommendation that
there should be an engagement between the parties (the CGE,
Department of Justice and Correctional Services, Judicial Service
Commission and the Presidency) to convene a National summit to
actively engage key stakeholders to discuss gender transformation in the
judiciary and come up with practical resolutions and implementation
plan on the matter. The Ministry further added that “it is therefore
recommended that the JSC in partnership and consultation with the
Department of Justice and Correctional Services, CGE and Portfolio
Committee on Justice and Correctional Services convene a notional
symposium/seminar/summit to actively engage key stakeholders to
discuss gender transformation in the Judiciary”. However, The Ministry
noted its reservation to the above commitment and would commit only
if other key role-players were amenable to such an event.
The Ministry stressed that the issue of transformation is something that has
formed the subject of various departmental initiatives and mentioned
that it formed part of their recent Symposium held on the 30th September
2015 and 1st October 2015 for the State Attorney and held a two-day
dialogue on transformation in the legal profession which included a day
on women in the legal profession which took place on the 14th to the 15th
December 2015. However, the Ministry did not share what findings and
commitments were taken at the two events.
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The Ministry acknowledged that in the 2014/2015 financial year, the total
value of briefs given to female counsel was R139 436 66 compared to
R515 2967 83 that was given to male counsel which is still farfetched from
the Ministry’s target.
Briefs
Men Women
The Ministry also indicated that no single role player in the justice system
can bring about transformation of the judiciary on its own. The legal
profession, the JSC, the Department of Justice and Correctional Services
and the Magistrate’s Commission must address this matter.
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41
Chief Justice
42
The citation of the CJ in his capacity as head of the Constitutional Court, may be considered overstepping the
lines of the separation of powers doctrine.
43
Same will be further discussed hereunder
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The CGE also notes the departure clause in the formal procedure as a
means to negate the procedure set out. Moreover, the aspect that a
member of the JSC may call for a candidate to be shortlisted after the
sifting process of the ad hoc committee is nonsensical as the sifting
committee and the listed criteria should produce the required result.
“Is the proposed appointee a person with the necessary energy and
motivation?”
The question then arises: how would one assess energy and
motivation?
44
http://www.dispatchlive.co.za/news/little-time-to-check/
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“This issue was brought to the attention of the JSC by the General
Council of the Bar. This culminated in a joint sitting of the JSC and the
Heads of Court to deliberate on this matter. Draft criteria on the
selection of Acting Judges was developed which were served before
the Heads of Court at their meeting held on 03 April 2016. At this
meeting, the Heads of Court unanimously approved the criteria that
will be used when Acting Judges are considered by the Heads of
Court.”
45
Correspondence dated 29 April 2016.
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The CGE applauds the frankness of the JSC in its response that the
“issue of paucity of women on the bench needs to be addressed in a
coordinated manner with all the stakeholders including the CGE, legal
profession, academia and Women’s organisations.46”
The CGE notes that all three responses contain the “fingering
approach” wherein the CGE is directed to request further response or
pose the said questions to the other role players in the sector. This leaves
an ever lingering impression that the goal of gender transformation
within the judiciary is being addressed in silo’s as opposed to a holistic
and co-ordinated approach. The JSC highlighted that the President has
no discretion to reject a list of recommended candidates in respect of
candidates recommended pursuant to the provisions of section 174(6)
46
See page 3 of the JSC response to the CGE dated 17 June 2013
47
Cohan R, Women’s representation on the courts in South Africa , U.MD.L.J Race, Religion, Gender and Class, Vol
6 , 2006 at page 305.
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47
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The Law Society of South Africa provided the CGE with preliminary
results of its survey centring on the sourcing information as to why the
majority of female law graduates opt not to pursue a legal career in
practice and what challenges female legal practitioners face.
The LSSA notes that as on the 18th of July 2014, 37% of practising
attorneys were women, an increase of 5 % in five years from the 32 %
in 2009. The progression of 5 % in five years is slow in view of the
provided information that 56 % of candidate attorneys are women.
48
Copies of the responses and unanswered questionnaires are annexed hereto marked Annexures A 4 – 9
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Kwa-Zulu-Natal
Law Society ( KZNLS ) 1185 (1301) 1865 (1906)
The LSNP which covers a large area of South Africa49 indicates the
lack of women in the practising legal profession, which profession is
used to source candidates for acting positions within the judiciary
(other than Counsel). Of further concern is that the LSSA Council
consists of 20 Councillors of whom only four are female. At a
provincial perspective, the lack of paucity is also apparent in view of
the gender disaggregated statistics of its Councillors
Kwa-Zulu-Natal
Law Society ( KZNLS ) 4 (4) 16 (16)
49
Gauteng, Mpumalanga, North West and Limpopo Provinces
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Kwa-Zulu-Natal
Law Society ( KZNLS ) (341) (184)
The South African Judicial Education Institute cites that it provides the
lists of delegates who have undergone training50 to the Judge
Presidents. It is encouraging that the gender disaggregated statistics
of on the number of candidates who had successfully completed the
Basic and Advanced Aspirant Judges Course weigh in the favour of
females.
The CGE requested information from all the Judge Presidents with
intent to seek information as to the manner in which they scout for
50
Basic Aspirant Judges Course and Advanced Aspirant Judges Course
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“I have no fixed criteria or set of rigid rules. These are the little things I
look for in an individual before I extend an invitation to act:
• A little knowledge of law in general;
• An ability to speak well;
• Mastering the art of writing;
• Capacity for hard work;
• Good name in society;
• Gentle, pleasant, friendly and humble personality”.
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The CGE has also held meetings with JSC regarding gender
transformation in the judiciary and to establish a working relationship
that was lacking. It was apparent during the said meetings, that
information regarding the number of nominations and those filtered
by the selection committee was not forthcoming. In essence, the
CGE wished to track the gender disaggregated statistics of the
persons nominated to the persons finally placed on the short list.
Despite resistance in disclosing the aforementioned information, the
interaction between the CGE and JSC amplified the need for CGE to
become an active participant in the nomination process. The
aforementioned led to the CGE nominating Justice Molemela for the
vacancy of Judge President, Free State Division.
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There is will from the institutions that nominate candidates; this might
even be clearer if the JSC could publish the list of all nominees before
the shortlisting. What the interview process shows is that there will be
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Finally, the CGE sought the legal opinion of De Vos regarding the
following pertinent questions: -
De Vos in his opinion notes that the causes of the lack of gender
transformation in the judiciary is a broad and systemic issue that
cannot be exacerbated by sole focus on the cited Respondents and
key stakeholders, but rather a holistic and pragmatic approach. The
proliferation of causes for the lack of adequate paucity is explained
by De Vos as follows: -
“It must take cognisance of the fact that members of the judiciary
are appointed from among the members of the practicing legal
profession and hence that the culture prevalent within the profession,
the attitudes of its members about gender issues (amongst other
things), the status of women within the profession, and the practices
both within the profession and within the judiciary (including practices
surrounding the appointment of acting judges and possible sexism
within the judiciary) will affect the pace and the quality of gender
transformation in the judiciary’52.
5
There was rigorous internal debate as to whether the CGE could place a Notice to Appear before members of
the Judiciary and whether holding of a Hearing would be counterproductive to achieving gender paucity on
the bench.
52
De Vos, P “Gender Transformation, what needs to be done”
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a) Institutional Culture
The institutional culture of law firms and the Bar (as well as the
judiciary) is dominated by white male interests, taking the experience
of white men as the norm and measuring others against this norm.
This invariably causes the “othering” of female (especially black
female) lawyers53 because their interests or sheer appearance lies
outside the hegemonic norm. An institutional culture is the set of
prejudices, beliefs, informal practices, and often unspoken values
that reflect the worldview and assumptions of the culturally and
economically dominant group in that institution.......
53
It is important to note the intersecting nature of discrimination based on both gender and race experienced by
black female lawyers.
54
Ibid at 22
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Apart from these examples, there are more general problems faced
by especially female lawyers in the profession. Some of these are of
an especially serious nature. (The respondents that took part in the
report did not include any members of the judiciary. However, as
members of the judiciary are appointed from among the members of
the legal profession it would be surprising that the attitudes of fellow
lawyers and clients encountered by women lawyers in the profession
did not also exist in the judiciary.)......
d) Briefing patterns
Young advocates trying to establish themselves and trying to get a
wide array of work that would not only allow them to survive
financially at the Bar but also to thrive and progress in the profession,
need to find champions in the attorneys profession (or among state
law advisors) who will brief them. For young women advocates, it can
be particularly difficult to “break in” to the profession and to get the
briefs needed to survive and thrive. This is so because there is an
overwhelming tendency among attorneys (also attorneys working for
NGO’s and for the state) to brief advocates that look like they do in
terms of race and gender, have the same interests or take part in the
same kinds of social activities, go on holiday at the same kinds of
venues.56 .........
55
Ibid at 22-23.
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56
CALS & Foundation for Human Rights Report “Transformation of the Legal Profession” (2014) at 23.
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The issues that hamper the gender transformation of the judiciary are
deep-seated and systemic and it is unclear whether holding a formal
Public Hearing on the matter (with the resultant possibility of an
adversarial dynamic arising between the CGE and the bodies called
before it) will do much to get the various role players to reflect in a
self-critical and honest manner about these systemic problems, the
need to address them and possible avenues for addressing them58.
57
In terms of Section 12 of Act 39 of 1996
58
De Vos, P “Gender Transformation, what needs to be done”
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This is also supported by a 2005 Sunday Times article titled “Women Judges tell
of Struggle For Acceptance” wherein the author indicates that the experiences
of a few women judges reflect badly on the non-committal of the male judges
on non-sexism. In the said article a female judge recollected a non-collegial
treatment by her fellow male judges in the following statement:
“Normally, amongst the judges who will hear a case together, you talk
beforehand about the issues that you want to raise when the matter is argued
in court. In the first few years, they would not talk to me and even once we were
in court, on the bench, i would sit there like a spare wheel”59.
However, the stark reality is that without address of the institutional culture,
gender transformation at the highest echelons of the legal profession will not
be attained. In order to overcome such systematic concerns, debate and
active participation is required. The CGE’s investigation process has yielded key
insight into the complaint and findings on the hindrances to gender paucity on
the bench, including -
Rickard C, Women Judges tell of Struggle For Acceptance, Sunday Times, 10 April 2005,
59
wide net of discretion afforded to Judge Presidents – this is prior to the JSC’s updated response. The CGE has
60
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A. The CGE in consultation with the Complainants and other key institutions
prepare a discussion document on the various factors that may hamper
the progression of women lawyers within the legal profession as a whole.
The said discussion paper will also include the observations and
recommendations as found by the CGE during its investigation process as
delineated here above. The aforementioned discussion paper will be
published for comment in order to aggravate an open discussion on the
subject matter.
C. The State attorney general should ensure that there is equal distribution of
briefs to both women and men with particular reference to black women
attorneys. Additionally, it is recommended that government and the state
owned enterprises (SOE’s) should insist in their instructions to the State
Attorney that their briefs should include women.
D. The private law firms must be engaged and encouraged to adopt policies
and practice which will ensure that there are equal distribution of briefs to
women with particular reference to black women attorneys and
advocates.
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E. The Bar Council, in the Republic of South Africa must be engaged and
encouraged to adopt rules and/or practice which will ensure that the
women at the bar are briefed in matters involving senior counsel and/or
in matters where a senior counsel requires a second junior. In addition,
where the Bar Council is called upon to appoint an arbitrator, preference
must be given to women at the bar (with particular preference to black
women).
F. The Judge Presidents and/or the Deputy Judge Presidents of all the
divisions must be engaged and encouraged to approach and attract
women practitioners to act as Judges and be preferred to their male
counterparts in order to address the current imbalances.
8. CONCLUSION
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Ms Keketso Maema
Chief Executive Officer: Commission for Gender Equality
No.2 Kotze street
Women’s Jail, Eastwing
Constitution Hill
Braamfontein
Johannesburg
Tel: 011 403 7182
Fax: 011 4035609
Email: keketso@cge.org.za
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Annexure 6 Questionnaire to the South African Charter of the International Associate of Women Judges
Ad question 2
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ANNEXURE 1
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ANNEXURE 2
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ANNEXURE 3
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ANNEXURE 4
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ANNEXURE 5
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ANNEXURE 6
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ANNEXURE 7
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ANNEXURE 8
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ANNEXURE 9
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ANNEXURE 10
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ANNEXURE 11
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