Our judiciary in South Africa should be more representative

The appointment of Justice Mandisa Maya was an important milestone for women in South African law, says the writer. Picture: Timothy Bernard/ African News Agency

The appointment of Justice Mandisa Maya was an important milestone for women in South African law, says the writer. Picture: Timothy Bernard/ African News Agency

Published Mar 16, 2023


Nicola Smit

Cape Town - The International Day of Women Judges (based on a 2021 UN Resolution) was observed recently (March 10) to promote the full and equal participation of women at all levels of the judiciary.

Advocating for the advancement of women in judicial justice systems globally is essential if we want to achieve equality, sustainable development, peace and democracy. This also aligns with the 2030 Agenda for Sustainable Development, particularly gender equality and the empowerment of all women and girls.

An important question we must ask ourselves is: What is the current level of representation of women in our country’s justice system, especially in senior leadership positions?

Considering the appointment of Deputy Chief Justice Mandisa Maya to the deputy chief justice position in the apex court and the recent nomination of Justice Mahube Molemela as the next president of the Supreme Court of Appeal (SCA), one may be tempted to say that the picture looks rosy.

No doubt, the appointment of Justice Maya was an important milestone for women in South African law.

The appointment of Justice Molemela (after the appropriate Judicial Service Commission (JSC) process) will be a significant boost to women’s voice and representation in the four most senior positions in the judiciary.

The Judiciary Annual Report 2021-2022 indicates that during the period under review, out of 52 judges appointed, 24 were women. In the same period, a total of 158 magistrates were appointed, of which 77 were women.

This means that by 2022, in Superior Courts, the race and gender composition of the judges was made up of “39% black males (98 of 253), 32% black females (81 of 253), 17% (42 of 253) white males and 13% white females (33 of 253)”. In the magistrates’ courts, the composition was made up of 39% black females (783 of 2022) and 13% white females (256 of 2022).

Another important document, the Office of the Chief Justice’s (OCJ) Annual Report 2021-2022, reveals that during that year employment of women in the Senior Management Service (SMS) was prioritised, and the OCJ “achieved 48% (20 of 42) women representation on SMS level” with the target having been set at 50% for women representation at this level.

This focus was accompanied by a mentorship programme for female employees at middle management and plans for retention initiatives to attract and retain women at SMS level.

Furthermore, the Department of Justice and Constitutional Development reported (for the same period) that 94 women occupied senior management positions out of 188 positions, that is, 50%.

The female leadership across senior positions in attorneys’ firms and related legal service providers is unfortunately not easily ascertainable. What we know is that, according to the Law Society of South Africa (LSSA), in January 2022, there were 29 981 practising attorneys in the country, and 42% of these were women. Although fewer than male practitioners, there is clearly a substantial pool of potential aspirant women judges.

It is common cause that universities are delivering more female law graduates.

The above-mentioned statistics indicate that although representation of women judges has improved, women remain tellingly under-represented as Heads of Superior Courts (the position is only slightly better for deputy heads of superior courts), and representation in the Constitutional Court and the SCA is not yet equitable and could also be much improved.

Overall, it must therefore be concluded that women remain significantly under-represented as decision-makers in the senior leadership of the South African judiciary.

So, how can we improve representation of women in our judicial system?

We need nomination and appointment opportunities to continuously improve gender equity in our senior court structures and other leadership positions.

This requires that decision-making and advising bodies (for example, the JSC) must also be representative.

It is vital that our courts represent all of society and are seen to be accessible and diverse, and capable of responding to the concerns of all citizens.

Women judges, including those in senior leadership roles, undoubtedly strengthen the legitimacy of courts.

We must also invest in the training of aspirant women judges as this widens the pool for possible future appointments of women judges.

The South African Judicial Education Institute (SAJEI) is responsible for training judicial officers as mandated in section 180(a) of the Constitution.

The SAJEI Annual Report 2020-2021 states that 38 aspirant women judges received training in 2021.

The Aspirant Women Judges Programme was again launched in 2023 (with a cohort of 18 candidates comprising magistrates and legal practitioners) and intend to “provide entry-level education and training to aspiring female judicial officers to enhance suitability for appointment to judicial office”.

Going forward, society must evolve from its patriarchy, universities must continue to deliver excellent women graduates, judges must undertake an increased mentorship role for future judicial officers, and gender transformation must be advanced as an express goal by decision-makers.

We should commit ourselves to develop and implement the necessary strategies and plans, including the elimination of barriers (such as persistent gender stereotypes, high rates of sexual harassment according to a recent International Bar Association survey, and inadequate arrangements for practitioners with childbearing responsibilities), to ensure the advancement of women in judicial systems and the related fields.

Let us celebrate the progress achieved, let us educate and raise awareness about challenges facing women judges, support and advocate for the full participation of women in decision-making in every professional sphere of the judiciary and administration of justice.

The “climate of the era” demands gender equality in the judiciary to be attained in our time.

Professor Smit is Dean of the Faculty of Law at Stellenbosch University.

Cape Times

* The views expressed do not necessarily reflect the views of IOL or Independent Media.

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