There are no excuses not to appoint more women Constitutional Court judges, writes Lwando Xaso.
Johannesburg - There is overwhelming evidence to support the call for more women judges to be appointed to the highest court in the land.
President Jacob Zuma and the Judicial Service Commission (JSC) have rightly been criticised recently for not appointing more women to the highest court in South Africa.
Justice O’Regan and Justice Mokgoro were the only two women judges out of 11 appointed on to the first court in 1994.
When Justice O’Regan retired in 2009 she said “South Africa needs to break ‘old-boy’ barriers and appoint more women on the bench”.
With the glaring absence of women on the JSC’s list of candidates last year her words seem to have fallen on deaf ears.
Regrettably, today, 20 years since democracy, there are still only two women on the bench, Justices Nkabinde and Khampepe.
Fortunately for President Zuma and the JSC, the vacancy left by retired Justice Skweyiya presents an opportunity to appoint a woman.
Ensuring that the court represents varied life experiences and races has overshadowed the importance of ensuring that the court adequately reflects both genders.
Section 174(2) of the constitution states that “[t]he need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”.
During school workshops hosted at the court it has become evident that quite a number of young people do not think women are capable of being judges. The image they hold of a Constitutional Court Justice is that of a profoundly intelligent, eloquently spoken and highly educated man, qualities they think are not embodied in a woman.
Having said this, it is my view, however, that the inadequate representation of women on the bench has not demonstrably compromised the court’s judgments on gender issues.
August is a good time to look closely at how far we have progressed.
In 2011, Ruth Cowan, a researcher from the City University of New York, presented a paper on the impact of women judges on the bench. This study highlights the importance of women judges weighing in on issues and also the impressive work the court in general has done in respect of women’s rights. Cowan’s study revealed that in 111 of the 129 cases examined, a woman judge wrote either the Court’s judgment or a concurring opinion.
She took a few examples to illustrate the extent of their judgments on a number of areas in South Africa.
I want to highlight and celebrate the women judges of the Constitutional Court and the court as an institution for its work in women’s rights.
When asked during the JSC interview about how she would manage being a mother and a judge of the court at the same time, Justice O’Regan stated that “fortunately I am married to somebody who accepts the responsibility of parenting as much as I do”.
In S v Jordan and others six male justices of the court found that the legislation prohibiting prostitution did not unfairly discriminate against women. The dissent by Justices O’Regan and Sachs found however that the prostitution provisions constituted unfair discrimination.
This is by making the prostitute the primary offender and regarding the patron at most as an accomplice.
The law reinforces sexual double standards and perpetuates gender stereotypes in a manner impermissible in a society committed to advancing gender equality.
The majority judgment has been widely criticised for criminalising selling sex work but not the buying of sex. The majority both defended and relied on sex, sex-role and sexual stereotypes of women that are inconsistent with the constitution.
The dissent was praised for its nuanced analysis of sexual stereotypes that are reinforced in the contested law. It can be argued that Justice O’Regan’s experience as a woman, experience the other six male justices do not have, enabled her to present such a nuanced view.
Baaiste-Mmono “Bess” Nkabinde
Asked during her JSC interview why she should be appointed to the Constitutional Court, Justice Bess Nkabinde stated: “I think the commission is enjoined by the constitution to ensure that the judiciary reflects the gender and racial composition of the society in which we live. I believe the majority of the illiterate in the country comprises women and most probably black women. So I would urge this commission to consider my application favourably because of those qualifications that I have mentioned, my experience in all these courts and my skills.”
Justice Nkabinde’s presence on the bench has contributed to the jurisprudence pertaining to women’s rights.
In Masiya v Director of Public Prosecutions the accused anally penetrated a 9-year-old girl.
The accused could not be charged with rape because the common law definition of rape included only non-consensual vaginal penetration.
The questions before court were whether to broaden the definition of rape to include anal penetration and whether the definition should be gender neutral.
Justice Nkabinde wrote the majority opinion which Justices Mokgoro and O’Regan signed. Justice Nkabinde found no distinction between non-consensual vaginal and anal penetration in that both constitute “a form of violence… equal in intensity and impact. The object of the criminalisation of this act is to protect the dignity, sexual autonomy and privacy of women and young girls as being generally the most vulnerable group”.
Surprisingly, Chief Justice Pius Langa held what some consider the even stronger view.
The then Chief Justice concurred with the majority’s extended definition of rape but dissented on their failure to extend the definition to include males.
During her interview Justice Sisi Khampepe told the JSC it was important to have more females in the judiciary as it would give women more confidence in the system.
It would also bring the female perspective when adjudicating issues.
She stated that “this special contribution that women will bring into the judiciary is not a fictitious one, but a real one”.
Justice Khampepe was one of three justices to write the Modjadji Florah Mayelane v Mphephu decision. The court had to examine Tsonga customary marriages and determine the extent to which the absence of a first wife’s consent to her husband’s subsequent polygamous marriages affects the validity of the latter marriages.
The majority held that Tsonga customary law required that the first wife be informed of her husband’s subsequent customary marriage.
The court also found that Tsonga customary law had to be developed so that it is consistent with the constitution.
The court found that the right to dignity includes the right-bearer’s entitlement to make choices and to take decisions that affect his or her life – the more significant the decision, the greater the entitlement.
Given that marriage is a highly personal and private contract, it would be a blatant intrusion on the dignity of one partner to introduce a new member to that union without obtaining that partner’s consent.
When asked about the consistency between the equality clause and polygamous marriages during her JSC interview, Justice Mokgoro said “well, among others, there is the point of view that to permit a multiplicity of partners in a marriage for one gender and not for the other in our system, goes against the equality clause. And that is usually a rare motivation for the eradication of polygamous marriages.
“Usually among women it is a social reason, social situation where the disadvantages of polygamous marriages are expressed, but I do not rule out the possibility that women may want to make a point about the unconstitutionality of polygamous marriages; and I am sure they can if properly motivated.”
During her interview, Justice Mokgoro exhibited a great understanding of the plight of rural women.
She stated that “if you look at the position of women in rural areas particularly today, where you find that women in rural areas constitute probably most of the population in those areas since the male sector of rural society have generally moved through the job situations to the urban areas; women are left generally to manage families, and you find that communities are managed, community life, family life is managed by women.
“Women therefore factually have a lot of say over for example acquisition of property and commercial activity around family property… if customary law is applied…”
O’Regan, Mokgoro, Nkabinde and Khampepe have made their impact on the women’s movement through their intellectual contribution to important cases that affect women.
Just the sight of them wearing those green robes makes a powerful statement and inspires women everywhere.
It is simply unacceptable that after 20 years there are still only two permanent women judges out of 11 that serve on the court.
We trust the JSC will recommend and the president will appoint a female judge to fill the seat left vacant by Judge Skweyiya.
There are no excuses not to.
* Xaso is a senior researcher at the Public Service Remuneration Review Commission headed by retired Chief Justice Sandile Ngcobo. An attorney, Xaso holds LLM degrees from the universities of Cape Town and Notre Dame.
** The views expressed here are not necessarily those of Independent Newspapers.