Women and the Judicial Office: what lies behind the robe?
Guest author: Tabeth Masengu
There is a well-known adage taken from Spider-man that goes; ‘with great power comes great responsibility’. In South Africa magistrates are the coalface of our judiciary, dealing with the bulk of legal matters that come before our courts. Judges have the power to declare legislation as unconstitutional, amongst other powers, can sentence perpetrators to life sentences. Yet this power comes with a price to pay.
Gender in the courts
Demographically, the composition of the lower and higher courts is much improved. President Mandisa Maya is the first woman ever to head up the Supreme Court of Appeal (SCA) and 8 of the 22 justices at the SCA are women, making it the highest composition (36%) of women in the SCA’s history. As of July 2020, 41% of Superior Court judges are women, and hence it appears that gender transformation is occurring as envisioned by the drafters of the Constitution. The magistracy, which was once the realm of white males now has 46% of women magistrates with at least four of the nine Regional Court Presidents being women too. However, if we look closer, beyond the robe, there is more to things than meets the eye.
Main challenges facing women magistrates
First, the magistracy still suffers from the stigma brought on by its skewed composition during apartheid and its reputation as a hub for ‘government’ appointees who lack independence. Also, several allegations of corruption over the years has fuelled the perception that the magistracy lacks institutional independence. Consequently, my research found that women magistrates are often scrutinised more than women advocates or attorneys when they apply for a vacancy advertised by the Judicial Service Commission (JSC).
“…the stigma against magistrates goes beyond them being considered as ‘public servants’ and corruptible. They are perceived as not being good enough to be considered akin to judges of the Superior Courts.”
Second, organisationally the enactment of the Constitution 17th Amendment Bill, which allowed for the enacting of the Superior Courts Act was meant to pave the way for a single unified judiciary. It was hoped that it would also lead to a career path for magistrates to the Superior Courts, but various judges and magistrates I interviewed explained that there was a reluctance to do so. There is a perception that a unified judiciary is not feasible, because it would be robbing judges of their much-earned status. Mainly, the stigma against magistrates goes beyond them being considered as ‘public servants’ and corruptible. They are perceived as not being good enough to be considered akin to judges of the Superior Courts. This links to the third challenge, which is the lack of work rotation for women magistrates. Most women are lumped in family court with minimum civil law experience, which over the years has been a constant problem in JSC interviews.
“There is a perception that a unified judiciary is not feasible, because it would be robbing judges of their much-earned status.”
The introduction of civil law jurisdiction in the Regional Courts could be an antidote to this problem, but one is still at the mercy of their head of court in respect of work rotation.
Finally, it was noted that unlike attorneys and advocates who appear before judges all the time; magistrates do not. Magistrates’ visibility outside their court is limited, and so are their networks. The absence of visibility and networks are critical because these are avenues to acting appointments in the High Court. Without acting appointments (which are highly skewed in favour of men), women magistrates are left with no meaningful career growth or further judicial ambitions.
“Without acting appointments (which are highly skewed in favour of men), women magistrates are left with no meaningful career growth or further judicial ambitions.”
Obstacles Facing Women Judges
In respect of promotion to higher courts, the acting appointment problem appears to also exist amongst women judges. Questions have been asked about how one ‘qualifies’ to act at the Competition Appeal and Labour Appeal Courts, the SCA and the Constitutional Court. Women are less likely to obtain acting experience at these courts and thus less likely to be appointed to them when a vacancy arises. Second, and most critical, is the difficult task of finding a balance between family life and career. It has been echoed in JSC interviews where we have heard women judges, saying they would postpone accepting a nomination to the SCA until their children were in boarding school. In her Constitutional Court interview in 2015, Justice Mhlantla spoke of how women had to work ‘double’ shifts to raise a family and achieve any ambitions they had because taking care of a family is often considered a ‘woman’s issue’. In the same interview round, Judge Pillay referred to the issue as a vicious cycle, because women’s capacity was often impaired, due to the lack of support when raising children and managing households.
If one is a young mother and a High Court judge, one must contend with either travelling with a young child all the time or leaving one’s child in the care of others. Therefore, I was informed that many brilliant candidates in Gauteng have turned down offers to act as judges because they know the strain it places on young mothers. Former JSC Commissioner Thandi Modise once stated that real democracy means that one has to look at society through a gender lens and this means specifically addressing the challenges women face regarding career and family goals. To ignore the difficulties faced by women who wanted both a family and a judicial career, was to ignore the reality of women. Furthermore, to ignore other non-family related challenges mentioned earlier, is also an act of turning a blind eye to the reality of the very women who we expect to perform their judicial roles without fear nor favour.
“To ignore the difficulties faced by women who wanted both a family and a judicial career, was to ignore the reality of women.” – Thandi Modise
While progress is being made, we believe it is still worth reflecting on what is behind the judicial robe and we propose that it is time to see beyond the robe’s privilege and power to address persistent problems facing women judicial officers.
About the author:
Formerly a Senior Researcher at the Democratic Governance and Rights Unit (UCT), Tabeth obtained a Doctor of Laws from the University of Ghent in Belgium and a Doctor of Philosophy degree from UCT in June 2020. She is an Honorary Research Associate of UCT and an Affiliated Researcher at the Human Rights Centre, Ghent University.
See Open Society Foundation, South Africa Justice Sector and the Rule of Law A Review by AfriMAP and Open Society Foundation for South Africa Open Society Foundation (Cape Town, 2005) [accessed 3 October 2018], p.66.