Judicial candidates and gender: five indicators to watch

Over the last few years, the Judicial Service Commission (JSC) has vastly improved its approach to gender parity among judicial candidates. It has begun to ask important questions about the bench as a working environment for women, and to gauge ideas from both male and female candidates on removing barriers in the profession that stop women from advancing to judgeship.

But in a country that is plagued by persistently high levels of gender based violence and discrimination, especially against black African women, gender parity on the bench is not enough. Consider the South African executive, which right now has exactly 50% women ministers, and it becomes clear that gender parity alone does not necessarily improve government outcomes for women, children, and gender diverse people.

So, what does improve outcomes? Inasmuch as gender parity is an excellent way to start changing the institutional culture of the bench, male and female judge candidates should demonstrate both an advanced and abiding awareness of gender equality, as well as a proven commitment to infusing this into their interpretation and application of the law. It is not enough to “get it”. A candidate should also “do it”. For this reason, both of these requirements or characteristics should be measured in large part by taking a close look at a candidate’s written judgments.

Assessing judgments for gender sensitivity can be easier said than done, given that not every candidate will have had an opportunity to pen a clear and obvious gender related judgement, such as, for example, the recent Constitutional Court matter of Rahube v Rahube and Others. However, there are matters of which virtually every judge candidate will have had experience, and these can be mined for indicators of gender sensitivity.

Here are five indicators to look out for, in a judge candidate’s track record:

1. Look for sexual offence matters

Sexual violence is perpetrated disproportionately against women and children in South Africa, and remains one of the most profound manifestations of gender inequality in our society. When such cases come before a court, they are an excellent test of a judge candidate’s understanding of power dynamics, rape myths, sexual grooming of children, and intersectional vulnerability. It is not the severity of sentences, or the frequency of conviction that is most important – it is the language used, and the reasoning employed by a candidate that is most telling.

Most judge candidates will have had occasion to write a judgment in such a matter, whether as a trial judge or an appeal judge. Finding these matters will often necessitate looking beyond the ten judgments submitted by the candidate themselves, as part of their JSC application. However, this is a worthwhile exercise that can yield important insights, which cannot always be gleaned from the candidate’s JSC application alone.

2. High profile cases vs. every-day cases

Where possible, a gender analysis of a candidate’s track record benefits greatly from a deliberate effort to compare their approach in high profile sexual offence matters, with that in sexual offence matters that received less (or no) media attention. Similarly, to compare their approach in older matters, with that in more recent matters.

This often yields interesting information about the consistency of a candidate, alternatively, the development of their understanding of gender justice over time.

3. Fair trial rights and procedural defects

Especially when sitting as an appeal judge, a candidate will very likely be confronted with an appeal against conviction and/or sentence in a sexual offence case. Many such appeals involve the consideration of the appellant’s fair trial rights, where procedural errors or missteps may have occurred.

What is important to assess here, is not whether a candidate always allows an appeal to succeed in favour of the appellant (to the detriment of the complainant), or always dismisses an appeal in favour of the state (to the advantage of a complainant). Rather, it is the way in which a candidate weighs the seriousness of an alleged violation of a fair trial right, as opposed to allowing just any error or defect in the proceedings to vitiate the conviction or sentence.

Perhaps most telling is whether a candidate gives any consideration to the impact on the complainant or other witnesses, of a conviction overturned on a “technicality”. The question is not whether that impact is overriding, but whether it is included as a factor at all, in the consideration of what is just in the circumstances of each case.

4. Approach to complainants and witnesses

Before the promulgation of the Criminal Law Amendment (Sexual Offences and Related Matters) Amendment Act of 2007, a court had no choice but to approach the evidence of a complainant with caution, purely because of the sexual nature of the alleged offence. This was known as the “cautionary rule”, and it is happily no longer a part of our law. In the same way, a complainant’s sexual history is not relevant in such cases.

However, the evidence of a single witness, a child, or a mentally disabled person is still approached with caution. The way in which a judge candidate deals with these remaining rules in our law, the extent to which they apply caution and their reasons for doing so, can be very instructive. For example, is caution simply applied, without deeper reflection on the actual quality of the evidence? Does the candidate appreciate that a court can convict on single-witness evidence alone, where that evidence is satisfactory in every material respect?

In fact, the very manner in which a candidate refers to witnesses and complainants in their written judgments can be important. In S v Gwebu 1988 (4) SA 155 (W) the presiding judge stated: “It is perhaps as well also to say something about the habit which a number of magistrates, and some prosecutors in the magistrate’s courts, have developed in recent years, of addressing accused persons by the appellation ‘accused’ or ‘beskuldigde’. And, one sees, too, in many records that some magistrates (not in this case) refer to witnesses as “witness” or ‘getuie’. This depersonalising of people is disrespectful and degrading… It is no cause for difficulty for people to be called by their proper names… Members of the public who appear in our courts, whether as accused or as witnesses, are entitled to be treated courteously and in a manner in keeping with the dignity of the court.”

5. Deviation from minimum sentences

The offence of rape is subject to a range of minimum sentences in terms of our law, depending on the circumstances of the case and any previous rape convictions of an accused. However, courts are empowered to impose a sentence that is less than the minimum, if it is satisfied that substantial and compelling circumstances exist, that would justify a lesser sentence.

Much can be inferred about a candidate’s values from how (s)he exercises sentencing discretion, and what (s)he considers to be “substantial and compelling”, for example: an accused’s age, whether they are gainfully employed, their family history, whether they have demonstrated remorse, and many others. The flimsier the circumstances cited, the more unjust the outcome will feel to complainants, who are disproportionately women and children.

In the seminal Supreme Court of Appeal matter of S v Malgas [2001] ZASCA 30, Marais J held: “The specified sentences were not to be departed from lightly and for flimsy reasons which could not withstand scrutiny. Speculative hypotheses favourable to the offender, maudlin sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy implicit in the amending legislation, and like considerations were equally obviously not intended to qualify as substantial and compelling circumstances.”

Not one of these indicators are a silver bullet that can conclusively determine the gender sensitivity of a judge candidate, and they are by no means the only indicators that can or should be sought in a judge candidate’s record. However, they are more likely to be consistently available in each candidate’s record than other gender judgments, and taken cumulatively, they can allow a fairly nuanced picture of each candidate to emerge.