Women in judicial leadership

With Justice Maya’s departure from the SCA in September 2022, there are currently no women permanently heading a superior court.

For the 3 – 10 October 2022 interview session, the JSC will fill five leadership positions in the judiciary. These include the deputy judge president of the North West, and the judge president positions in the KwaZulu-Natal and Limpopo High Courts, the Electoral Court, and the Competition Appeal Court.

Women are shortlisted in only three of these courts and, other than sole candidates in North West and CAC, only Limpopo has an all-male list.

There are six women deputy heads of court (DCJ Maya, and DJPs Goliath, Mbhele, Mphahlele, Phatshoane, and Semenya).

This means that the Heads of Court, a powerful statutory body chaired by the chief justice responsible for crafting judicial policy is now comprised exclusively of men. The JSC will be under some pressure to rectify this situation as over 40% (113) of SA’s 254 judges are women.

It is not Judges Matter’s or the DGRU’s practice to advocate for specific individual candidates. But we do think that, in addition to considering whether candidates meet the criteria for judicial leadership positions, the overall lack of women in judicial leadership positions does need to be given serious consideration by the JSC.

If women candidates are passed over for the leadership position, we would suggest that the successful man candidate would have to have exceptional qualities to distinguish them. To put it bluntly, there would need to be a compelling reason for the JSC to appoint them.

As we have argued in the past, judicial diversity strengthens the legitimacy of the judiciary. Importantly, women representation and wider diversity in bodies like the Heads of Court improve the decisions made there.

This latter point underscores another important consideration: it is not enough for there to be women judges in leadership but there should generally be judges with feminist thinking, who would be able to assess structural problems in the judiciary from feminist lenses, and the gendered dimensions of solutions. A feminist agenda in judiciary should not only fall on the shoulders of people like Justice Maya but must generally reach all judicial leaders. Although having more women in judicial leadership is important, is certainly not the stopping point.