Women and the bench: What Justice Mandisa Maya’s interview tells us about women’s place in the judiciary
In a poignant moment during Justice Mandisa Maya’s recent interview for Deputy Chief Justice, Judicial Service Commission (JSC) member Narend Singh of the IFP asked how she felt about President Ramaphosa’s recent appointment of more men to the Constitutional Court bench. After taking a deep sigh, Maya replied that she respects the president’s prerogative, but quickly added that there are still constitutional imperatives that require gender diversity, “South Africa, very disappointingly, with our lofty Constitution and all the fancy laws that ensure that equality and human dignity are achieved in our lifetime, lags far behind many countries … even in the continent, insofar as diversifying its judiciary is concerned. It’s worse when it comes to putting women in leadership positions.”
Considerations of race and gender in the selection of judges in South Africa often generates huge public debate and deep controversy. However, in terms of our constitution, race and gender are necessary considerations. Section 174(2) of the Constitution requires that: ‘the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.”
In our observation, judicial appointment bodies like the JSC and the Magistrates Commission do consider race and gender in diversifying the judiciary – and there has been an improvement over the years – but there is still a gap in our judicial system. The gap is in respect of judicial leadership positions. Here women are under-represented by far.
Current statistics on race and gender composition in the judiciary
Based on February 2022 statistics, there are currently 254 judges in the Superior Courts (the Constitutional Court, Supreme Court of Appeal, and High Courts, including specialist courts). Of the 254, approximately 114 are women. Which translates to about 44% of the total.
Considering both race and gender, the Superior Courts are comprised as follows:
- The Constitutional Court currently has 9 permanent justices: 3 black (African, Indian and Coloured) women, 5 black men, and 1 white man. Therefore only a third (33%) of Concourt’s bench is made up of women.
- The Supreme Court of Appeal (SCA) currently has 23 permanent judges of appeal: 10 black women, 1 white woman, 6 black men, and 3 white men. Therefore nearly half (48%) of the SCA bench is made of women.
- The other Superior Courts comprise of 222 judges, of which 60 are black women, 29 white women, 75 are black men, and 39 white men. This means that 40% of the judiciary at High Court level are women.
Let’s consider these numbers in the context of where we come from. In 1994, there were only two women on the bench, both of them white: Judge Leonora van den Heever and Judge Jeanette Traverso. The first black woman was appointed in late 1994, Constitutional Court Justice Yvonne Mokgoro, followed by Johannesburg Judge Mokgadi Mailula.
Despite making up nearly half of the judiciary today, women are grossly under-represented in judicial leadership – an issue that Maya raised in her interview.
No reliable statistics exist for the racial and gender composition of the magistracy in 1994, but as of June 2022, 51% of magistrates nationwide are women, and 75% of these are black. At the leadership level, 4 of the 8 permanent Regional Court Presidents who head up regional courts across all 9 provinces are women (the one acting RCP is also a woman). Of the 16 chief magistrates, 10 are women. This means that the Lower Court judiciary is doing far better in getting women in leadership positions than the Superiors Courts.
Women in leadership positions in the judiciary
It is no secret that Justice Mandisa Maya has been one of the first women to break the glass ceiling and hold a top leadership position in the judiciary. There have been others, like North West High Court Judge President Monica Leeuw, and former Free State Judge President, and current SCA Judge Mahube Molemela. But, JP Leeuw retires at the end of August 2022, leaving Maya as the only woman in judicial leadership. It is for this reason that Maya even called for her successor to be a woman.
There are currently 19 leadership positions in the judiciary. That is, the Heads of Courts and their deputies. Two women currently hold the coveted title of permanent Head of Court, while 4 others were appointed as deputies in the last year, joining Western Cape Deputy Judge President Patricia Goliath.
In terms of section 174 of the Constitution, the President has the prerogative to nominate any judge to fill the top 4 positions in the judiciary: the chief justice, deputy chief justice, president of the SCA, and the deputies for each of these positions. But he may only do so after receiving the non-binding advice of the JSC. In respect of the 15 other leadership positions, the JSC has the greater power and can give binding recommendations for the president to appoint candidates after interviews.
In the next six months, the leadership of the judiciary could change dramatically, and be more representative of South Africa. In line with Maya’s wishes, the President could nominate a woman to be the head of the SCA. The Competition Appeal Court, Electoral Court, and the High Courts in Limpopo, KwaZulu-Natal, and Mpumalanga could all be headed by women if the JSC so recommends at its sitting in October. Additionally, North West and KZN could also have women as deputy judge presidents.
What is the point of having more women in judicial leadership?
The constitution’s need for the judiciary to ‘broadly reflect’ the race and gender composition of the country is not a ‘nice-to-have’. It is a constitutional imperative, there to maintain the legitimacy of the judiciary in the eyes of the public. It is on the public’s behalf that the judiciary takes important decisions like the timing and form of elections, or the process for removing a democratically-elected president, or even overturning the wishes of a democratically-elected parliament. It always helps when the decision-makers represent the broader South African population and share common experiences with them.
Although most people agree that merit is the overriding consideration in judicial appointments, some argue that race should be irrelevant, while others say that race should be a factor considered alongside other factors. People like former JSC commissioner Advocate Dali Mpofu SC argue that in appointing judges, we should look at all the factors listed in the Constitution’s Equality Clause, including factors like disability, social origin, sexual orientation, and even legal ideologies.
Wits law Professor Cathi Albertyn draws an important distinction between the thinner concept of ‘judicial representativity (which is mere numbers of different social groups, e.g. white women) and the much thicker concept of ‘judicial diversity’. The latter goes beyond group-based differences and includes differences in norms, values, judicial attitudes, and philosophies. Arguing that the Constitution insists on this form of judicial diversity, she says, “this means a judiciary that is more sensitive to multiple differences and delivers a better and different quality of justice that promotes the values of the Constitution and helps create a more caring and egalitarian democracy”. We align with and strongly support this conception of judicial diversity.
Having more women in judicial leadership may also mean more women sitting on the JSC itself, which addresses some of the concerns we saw at Maya’s chief justice interview in February, and many other incidents prior. As legal scholar Tanveer Jeewa says, the JSC always had a sexism problem.
There are also structural barriers to women succeeding in the bench, including the skewed burden of family responsibilities which primarily falls on women. Another legal scholar, Dr Tabeth Masengu, described a ‘vicious cycle’ of many brilliant women lawyers having to turn down judicial posts due to the strain of childcare placed on especially mothers with young children.
But even beyond the numbers, women’s experiences within the judiciary also need to be factored in when considering diversity in judicial leadership. After all, it helps no one to have more women come into the judiciary, but have experiences that drive them out. An International Bar Association study in 2018 corroborated a previous study by Wits University’s Centre for Applied Legal Studies, which found that patriarchal bullying and sexual harassment are pervasive in the legal profession.
Although no such studies have been conducted in the judiciary, it would be naïve to assume that sexual harassment does not exist, considering that our judges are drawn from that same legal profession. Indeed, during her DCJ interview, Maya admitted to having dealt with one such case. Disappointingly, she conceded that she (and other Heads of Court) hadn’t done much work since her February interview in crafting formal policy to combat sexual harassment in the judiciary. This may also be a reason why there’s a crying need for more women in judicial leadership.
We need more women in leadership – the JSC and the President need to act
Whilst great progress has been made in gender transformation in the judiciary overall, the fact that only 2 women currently hold leadership positions shows that there is a long way to go to achieve gender transformation at the level of judicial leadership.
When Justice Maya is appointed as DCJ, only 1 woman will hold a leadership position – JP Leeuw, but only until she retires, in August. Simply having women succeed President Maya and JP Leeuw will not suffice to ensure that there is gender diversity and transformation in leadership positions in the judiciary. More still needs to be done.
There’s no doubt that women are competent to lead. Not because they are women – but because they are qualified. They have the necessary skills and experience to lead in the judiciary. Women are on par with their male counterparts and therefore must be provided with equal opportunities.
Both the president and the JSC have a responsibility to protect the legitimacy of the judiciary by getting more women in judicial leadership. After all, South Africa has a woman majority population.
A version of this article appeared in Daily Maverick
Written by: Zikhona Ndlebe and Mbekezeli Benjamin, research and advocacy officers at Judges Matter, a civil society project that monitors the South African judiciary. Visit www.judgesmatter.co.za and follow @WhyJudgesMatter on Twitter.