Gender analysis of the JSC October Interviews: transformation or well-dressed Misogynoir?

After the last Constitutional Court interviews, Constitutional Law lecturer Tanveer Jeewa wrote that “watching the JSC interviews of women judges over the years would make a young woman lawyer despondent”. In Deputy Chief Justice Maya’s interview, we saw that even senior judges are not safe from arguably sexist comments. In Judge Kathree-Setiloane interview, her tone was described as “a little overbearing”. Questions in this October round of interviews were significantly less problematic, but the framing of some of the questions could still yield gender bias.

In this year’s JSC interviews, held between 1 – 6 October 2023, 34 candidates were interviewed. Of these candidates, 20 were black, four were Indian, eight were white, and two were “coloured”. Eighteen of the candidates were men, and sixteen were women. Of the sixteen, ten were black women.

These statistics on their own, are a testament to the progress made in reshaping the composition of our legal system. However, a closer look reveals a more nuanced tale of transformation. Of the four advertised vacancies at the Supreme Court of Appeal (SCA), two seats were filled, both by women of colour – Judge Fayeeza Kathree-Setiloane and Judge Anna Maleshane Kgoele. While this may appear as a significant stride in the direction of greater racial and gender inclusivity, critical questions on the essence of meaningful gender transformation within the hallowed halls of the Judiciary arise.

Can we say that we are really dedicated to transformation if black women must choose between individual ambition, or staying in one position as it fills the quota of having more black women as heads of courts?

The criteria for judicial selection are a minimum threshold, inexhaustive, and the weight attached to each factor is context specific. These factors include whether the candidate is appropriately qualified, if they are fit and proper, whether their appointment would help reflect the gender and racial composition of South Africa, and whether the candidate would be independent. These criteria have been consistently followed in the interviews; however, some questions and comments directed to the SCA female candidates raised eyebrows.

Judge Phatshoane‘s SCA interview ignited a brisk debate. Her intentions for previously pursuing the Northern Cape Deputy Judge President position were brought into question, when directly asked whether she had used the position as a mere stepping stone to the Supreme Court of Appeal. Despite her six years of acting and nearly two years of permanent appointment, her eight-year tenure in the position was discounted, as the commissioners focused solely on her number of years of permanent service.

The questions surrounding Phatshoane’s tenure as Deputy Judge President were then followed by the question “Wouldn’t it be more transformative to have a black woman in a head of court position, as opposed to one member of the bench of the SCA?”. Adv Ngcukaitobi interjected and said that transformation is not black and white, but has shades of grey. Having a black woman as a head of court, or as a member of an Appeal court bench, are both valid contributions to transformation.

While the argument for Phatshoane requiring more years of permanent appointment before ascending to a higher court appears rational, the assertion that status as a black woman leading a lower (superior) court is potentially more transformative to the judiciary, than being a member of a higher court bench prompts a critical inquiry into what meaningful judicial transformation looks like?

Can we say that we are really dedicated to transformation if black women must choose between individual ambition, or staying in one position as it fills the quota of having more black women as heads of courts? Does this not contradict the entire purpose of transformation? Wouldn’t it be more transformative to just appoint more qualified black women as leaders?

… men apparently do not need a separate programme to ensure they have the right skills and experience to get on the bench. It is presumed they already have these when they apply. What does that say about how the legal profession treats women?

These comments do not only cause uncertainty around criteria; but deters highly qualified and ambitious women from applying for elevation, as they open themselves up to being accused of opportunism and “job hopping”.

Recent developments such as the consideration of qualified Constitutional Law academics for Constitutional Court appointments, has also raised concerns. All three nominated candidates are white men. There are several highly qualified and globally respected female law professors who are eminently suited to these posts. In a court with only four women as permanent judges, gender should have been a consideration.

The legal profession has made significant strides in gender transformation – we have just commemorated 100 years of women in law this year. However, the systemic issues within the profession that uphold gender inequality are prevalent. For example, the “Aspirant Woman Judges Programme” is proudly lauded as a great contribution to the advancement of women to the bench. However, men apparently do not need a separate programme to ensure they have the right skills and experience to get on the bench. It is presumed they already have these when they apply. What does that say about how the legal profession treats women? Why are they not getting the same opportunities as men throughout their legal careers, before applying to become judges? Why should they “need” to participate in a special programme to ensure equality in the interview process?

And why, despite this “aspirant” judge programme, are there only three heads of court positions filled by women in South Africa. The appointment of a judge is a merit-based endeavour, but it should also reflect the racial and gender diversity of South Africa. This is not a box-ticking exercise. If we want to see meaningful contributions to the gender transformation of our judiciary, we must have a true understanding of what “thicker judicial diversity” entails.

Dimakatso Nchodu is a Research Assistant Judges Matter, a civil society watchdog of the judiciary based at the Democratic Governance and Rights Unit at UCT Law Faculty.