Lack of Gender Transformation in the Judiciary

2016

LACK OF GENDERTRANSFORMATIONIN THE JUDICIARYI N V E S T I G A T I V E R E P O R T

CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM

L A C K O F G E N D E R T R A N S F O R M A T I O N I N T H E J U D I C I A R Y

3

1 As per the lodged complaint2 Omphitlhetse , Mooki , The Star Newspaper , August 2012: “ Women can do it too”

Complaint Ref No: WC/DRGU & Sonke/2012/KL

Democratic Governance and Rights Unit and

Sonke Gender Justice Network Complainants

And

The Presidency

The Minister of the Department of Justice and Constitutional Development

Judicial Service Commission

Chief Justice of the Constitutional Court Respondents1

“There’s a lot of sexism. If you are a woman you have to go

on a course to become a judge, but a man can simply

serve as an acting judge and apply for the job. Men have

thought of this [course] as a marvellous thing. They think this

is helping women become judges. They are incredibly

proud of their expensive courses2. Judge Satchwell



4

C O N T E N T S P A G E S

1. Introduction 6

2. Parties 7

3. Nature and Background to the Complaint 10

4. Legal Framework 12

5. Gender Transformation in the Judiciary –

the current status quo (institutional analysis) 28

6. Investigation / Steps taken 33

7. Findings and recommendations 58

8. Conclusion

61

9. Annexures

A1 The Presidency of the Republic of South Africa 64

A2 Minister of Justice and Constitutional Development 68

A3 Judicial Service Commission 72

A4 Black Lawyers Association 76



5

A5 The Law Society of South Africa 82

A6 South African Chapter of the

International Associate of Women Judges 92

A7 South African Judicial Education Institute 99

A8 National Association of Democratic Lawyers 114

A9 Judge Presidents of the High Courts and

Appellant Division South Africa 117

A10 Judicial Service Commission, Procedure of

Commission, Regulation Gazette No 24596 126

A 11 Responses to the Draft Investigative Report 143



6

1. INTRODUCTION

1.1. The Commission for Gender Equality (hereinafter referred to as “the

CGE”) is an institution established in terms of Section 181 of the

Constitution of the Republic of South Africa 108 of 1996 (hereinafter

referred to as “the Constitution”).

1.2. In terms of section 187 (1) of the Constitution, the CGE is specifically

mandated to:

12.1 Promote respect for gender equality and the protection,

development and attainment of gender equality;

12.2 Monitor, investigate, research, educate, lobby, advise and

report on issues concerning gender equality;

12.3 Assess the observance of gender equality.

1.3 The Commission for Gender Equality Act 39 of 1996, as amended

(hereinafter referred to as “the CGE Act”), further supplements the

powers of the CGE to fulfil its constitutional mandate.

1.4 The investigative report shall focus on the formal complaint lodged

with the CGE regarding the lack of gender transformation in the

judiciary. The report will avoid being voluminous and overwhelming

in nature and shall ensure brevity in order to focus on the salient

findings and recommendations.

1.5 From the onset, it must be recorded that the slow pace of gender

transformation is a broad and highly intricate issue requiring a holistic

approach.

“The slow pace of gender transformation of the judiciary cannot be

evaluated in isolation. The discussion must be placed within the larger

South African context in which transformation (in its broadest sense)

remains a difficult and contested issue. Considering the causes of the slow

pace of gender transformation of the bench and reflecting on possible

ways to speed up such transformation requires a holistic approach.



7

It must take cognisance of the fact that members of the judiciary are appointed

from among the members of the practicing legal profession and hence that

the culture prevalent within the profession, the attitudes of its members about

gender issues (amongst other things), the status of women within the profession,

and the practices both within the profession and within the judiciary (including

practices surrounding the appointment of acting judges and possible sexism

within the judiciary) will affect the pace and the quality of gender

transformation in the judiciary”3.

2. THE PARTIES

2.1 The Complainants:

2.1.1 Democratic Governance and Rights Unit (hereinafter

referred herein as “DGRU”), herein represented by Ms Tabeth

Masengu.

Upon examination of the official website of the

abovementioned Complainant, the following is noted as an

overview of the unit: -

The DGRU is an applied research unit within the Public Law

Department at the University of Cape Town. It was

established very recently in order for the faculty, and UCT

more generally, to have a greater influence on democracy

and human rights in South Africa and the region. The DGRU

is primarily concerned with the relationship between rights

and governance. Its work focuses on the intersection

between public administration, with the challenge of public

accountability, on the one hand, and the realization of

constitutionally-enshrined human rights on the other. This is

distinctive from other institutes or University centres4

3 De Vos, P “Gender Transformation, what needs to be done”- brief prepared for the CGE on its instruction. It ishighlighted that Prof De Vos noted his affiliation to DGRU “I wish to disclose that I am on the Advisory Board of theDGRU. I am not involved in the operational decisions of the DGRU and the Advisory Board played no part in thedecision to lodge the complaint. I have also not discussed the matter with any members of the DGRU”.4 http://www.dgru.uct.ac.za/dgru/about/overview#sthash.qzICXgzD.dpuf



8

It is further noted that they list as one of their focus areas, Judicial

Governance: -

DGRU recognises judicial governance as a special focus because of

its central role in adjudicating and mediating uncertainties in

constitutional governance. We have an interest in ensuring that the

judicial branch of government is strengthened, is independent, and

has integrity. The DGRU’s primary focus is on the relationship between

governance and human rights, and has established itself as one of

South Africa’s leading research centres in the area of judicial

governance, conducting research on the judicial appointments

process, judicial ethics and on the future institutional modality of the

judicial branch of government.

The DGRU’s focus on judicial governance has led to it making

available to the Judicial Service Commission (JSC) research reports

on candidates for judicial appointment, as well as DGRU researchers

attending, monitoring and commenting on the interviews of

candidates for judicial appointment. Such reports have been

complied for the September 2009, October 2010 and April 2011

interviews. The intention of these reports is to assist the JSC by

providing an objective insight into the judicial records of the short-

listed candidates. The reports are also intended to provide civil society

and other interested stakeholders with an objective basis on which to

assess candidates’ suitability for appointment to the bench5

2.1.2 Sonke Gender Justice Network (hereinafter referred to as

“SONKE”) herein represented by Ms Cherith Sanger.

As per the above, when examining the Complainant’s official website

of the abovementioned Complainant, the following is noted as an

5 http://www.dgru.uct.ac.za/dgru/focus/judicial_governance/appointments



9

overview of the Network:-

“Founded in 2006, Sonke Gender Justice is a South African-based

NGO that works across Africa to strengthen government, civil society

and citizen capacity to support men and boys in taking action to

promote gender equality, prevent domestic and sexual violence, and

reduce the spread and impact of HIV and AIDS.

Sonke has an expanding presence on the African continent and a

growing international profile, through its involvement with the United

Nations and a range of other international networks and affiliates”6

Like DGRU, SONKE notes as part of its scope of work is the

Strengthening of the Judiciary:-

“Sonke is advocating for gender transformation in the judiciary. We

believe that gender transformation in the judiciary involves the

appointment of more women judges but also a commitment by all

judges to the principles and values enshrined in our Constitution and,

in particular, the principle of gender equality. To this end, we have

successfully advocated for the particular appointment of

appropriately qualified women to the bench. We have also engaged

with the South African Judicial Education Institute to try understand

what training judges receive in relation to gender issues and sexual

offences and, together with the Democratic Governance and Rights

Unit, we are also trying to understand what structural barriers impede

women’s progress in the legal professionæ”7

2.2 The Respondents:

The Complainants list the following as Respondents as per the lodged

complaint: -

2.2.1 The President of the Republic of South Africa (hereinafter

referred to as the “Presidency”), his Excellency President

6 http://www.genderjustice.org.za/about-us/vision-a-mission/ 7 http://www.genderjustice.org.za/policy-development-advocacy/strengthen-south-africa-judiciary/



10

Jacob Zuma.

2.2.2 Minister of Justice and Correctional Services (hereinafter

referred to as the “Ministry”), Honourable Minister Masutha.8

2.2.3 Judicial Service Commission (hereinafter referred to as the

“JSC”).

2.2.4 Chief Justice Mogoeng Mogoeng (hereinafter referred to as

the “CJ”): Constitutional Court.

3. NATURE AND BACKGROUND OF COMPLAINT

On the 12th of October 2012, DGRU and SONKE lodged a complaint with the

CGE9. The complaint pertains to the gender discrimination in the appointment

of judicial officers in South Africa. It has been submitted to the CGE that gender

transformation in the judiciary has not progressed at a significant pace in

consideration of section 174 of the Constitution which states that the

appointment of judicial officers must reflect broadly the racial and gender

composition. It has further been submitted that during the period of 2009-2012,

the Judicial Services Commission interviewed a total of 211 candidates for 110

positions and only 24 women were appointed.

At the time the complaint was lodged it was noted from the Law Society

statistics of 2012 that there were more female law graduates than male, and

more female admitted attorneys than male admitted attorneys. It was further

noted that statistics from the General Bar Council showed that there were 561

female practising advocates nationally from a pool of 2384.

As a result of the aforementioned it was submitted that the following legal and

constitutional rights are violated:

• The right to equality as articulated in section 9(3) and (4) of the Constitution

of South Africa. The unfair discrimination is based on gender.

8 At the time of receipt of the complaint, it was the Minister of Justice and Constitutional Development,Honourable Jeff Radebe.9 As per the formal complaint form.



11

• The right not to be unfairly discriminated on the grounds of gender as

articulated in section 8(h) and (I) of the Promotion of Equality and Unfair

Discrimination Act 4 of 2000. It has been submitted that this has occurred

by denying access to opportunities for women and creating a systemic

inequality of access to opportunities.

It was further submitted that the following instruments, which South Africa is a

signatory to, have also been violated:

• Article 2 of the Protocol to the African Charter on Human and People’s

Rights on the Rights of Women in Africa (Protocol on the Rights of Women).

It has been submitted that there has been a failure to take corrective and

positive action in the South African judiciary as discrimination against

women exists.

• Article 9(2) of the Protocol on the Rights of Women. It has been submitted

that there has been a failure to have an increased and effective

representation and participation of women at all levels of decision-making,

and in this particular, the judiciary.

• Article 7 (f) of the SADC Protocol and Gender and Development that

requires that women to have equal representation on all courts.

The Complainants noted that the complaint is lodged in the public interest10

and sought the following relief / remedies: -

1. That the CGE constitute an appropriate investigation into what appears

to be gender discrimination in the appointment of judicial officers.

2. That the CGE investigate why there are significantly more male judicial

officers currently in office than female judicial officers and why this disparity

continues to exist despite the content of section 174 (2).

3. That the CGE establishes a monitoring capability in respect of the

10 Affirms locus standi. Moreover, the CGE was approached as “it is tasked by the Constitution with the duty topromote the respect for and the protection, development and attainment of gender equality. Further, theCommission has the power to monitor, research, lobby and report on issues concerning gender equality. Theappointment of female judicial officers and the attainment of gender equality in judicial officers is thereof anissue that sits squarely at the heart of this constitutional obligation”



12

appointments to the judiciary and to ensure that there is no gender

discrimination and this monitoring should encompass both permanent and

acting appointments.

4. That the CGE investigate whether steps have been taken to address the

gender disparities in the judicial appointments process.

5. That the CGE conducts an assessment of South African’s compliance with

the Convention on the Elimination of all forms of Discrimination against

Women (CEDAW) and all other legal International obligations that South

Africa has ratified and that are relevant to this complaint. This includes the

African Protocol on Women’s Rights and the SADC gender protocol. Once

an assessment is done, we request that the CGE institutes a permanent

monitoring of compliance with the said Convention and other international

legal obligations, providing parliament and the public with regular reports.

6. The CGE investigate the status of the project on racial and gender

transformation in the judiciary instituted by Rashida Manjoo, a former

Commissioner of the CGE attached to the parliamentary portfolio during

her tenure in 2005.

7. That the CGE engages with the Judiciary, the Judicial Services Commission,

the President, the Ministry of Justice and all other relevant stakeholders in

order to identify barriers in the legal progression that impede the

appointment of females to judicial positions”.

It is recorded that the CGE, in light of its financial limitations and jurisdictional

parameters, has attended to the gist of the complaint and not every stipulation

as delineated by the Complainants. The independency and impartiality of the

CGE is re-emphasised and cannot be subjected to entities’ directives.

4. LEGAL FRAMEWORK

4.1. International Legal Framework

4.1.1. Convention on the Elimination of All Forms of Discrimination against

Women



13

South Africa ratified the Convention on the Elimination of All Forms of

Discrimination against Women (hereinafter referred to as “CEDAW”)

in 1995 therefore placing an obligation upon the State to ensure the

advancement and protection of women’s rights under the

Convention through legislation and enforcement of good policies,

practices and programmes to support gender transformation. Article

7 of the aforementioned Convention directly provides for

transformation within the judiciary: -

Article 7: Political and Public Life

State parties shall take all appropriate measures to eliminate

discrimination against women in the political and public life of the

country and, in particular, shall ensure to women, on equal terms

with men.

(a) To vote in all elections and public referenda and to be eligible

for election to all publicly elected bodies;

(b) To participate in the formulation of government policy and the

implementation thereof and to hold public office and perform

all public functions at all levels of government;

(c) To participate in non-governmental organizations and associa-

tions concerned with the public and political life of the country.

Further cognisance must be taken of the concluding observations

of the CEDAW Committee’s 48th session held in Geneva, Switzerland

in the response to South Africa’s Periodic Country Report which

covered the period of 1998 to 2008. Specific reference is made to

concluding observation number 17, as detailed hereunder: -

Access to Justice

17 (c) Provide systematic training on the application of legislation

prohibiting discrimination in light of its obligations under the

Convention and its Optional Protocol to judges, lawyers, labour

inspectors, NGO’s and employers.”



14

4.1.2 Universal Declaration of Human Rights (UDHRC) (1948)

Article 2 of the UDHRC states that: “Everyone is entitled to all the

rights and freedoms set forth in this Declaration, without distinction of

any kind, such as race, colour, sex, language, religion, political or

other opinion, national or social origin, property, birth or other status.”

4.1.3 Vienna Declaration 1993 and South African National Action Plan for

the Promotion and Protection of Human Rights.

Article 8 highlights the importance of working towards the elimination

of violence against women in public and private life, the elimination

of all forms of sexual harassment, exploitation of, and trafficking in,

women, the elimination of gender bias in the administration of

justice, and the eradication of any conflicts which may arise

between the rights of women and the harmful effects of certain

traditional or customary practices, cultural prejudices and religious

extremism.

4.1.4 The Beijing Platform for Action (BPA)

The BPA requires governments, international communities and civil

society, including non-governmental organisations and the private

sector, to take strategic action to address 12 critical areas of

concern. These areas include, but are not limited to, violence

against women, the burden of poverty on women, and the

inequality between men and women in the sharing of power and

decision making at all levels.

4.1.5 Sustainable development goals: 2030 Agenda

Goal 5 aims at achieving gender equality and empowers all women

and girls. Its targets include ending all forms of discrimination and

violence against women and girls, as well as eliminating harmful

practices, and the recognition and value of unpaid care and

domestic work.



15

Other targets stress the importance of ensuring women’s full and

effective participation and equal opportunities for leadership, as well

as universal access to sexual and reproductive health and

reproductive rights.

4.2. Regional instruments

As cited by the Complainants, the following regional conventions

also provide further positive obligations on the State to ensure

gender paucity on the bench:

4.2.1. Protocol to the African Charter on Human and People’s Rights

Article 2 - Elimination of Discrimination Against Women

States Parties shall combat all forms of discrimination against

women through appropriate legislative, institutional and

other measures. In this regard they shall:

a) include in their national constitutions and other legislative

instruments, if not already done, the principle of equality

between women and men and ensure its effective

application;

b) enact and effectively implement appropriate legislative or

regulatory measures, including those prohibiting and curbing

all forms of discrimination particularly those harmful practices

which endanger the health and general well-being of women;

c) integrate a gender perspective in their policy decisions,

legislation, development plans, programmes and activities

and in all other spheres of life;

d) take corrective and positive action in those areas where

discrimination against women in law and in fact continues

to exist;



16

e) support the local, national, regional and continental

initiatives directed at eradicating all forms of discrimination

against women.

2. States Parties shall commit themselves to modify the social

and cultural patterns of conduct of women and men

through public education, information, education and

communication strategies, with a view to achieving the

elimination of harmful cultural and traditional practices and

all other practices which are based on the idea of the

inferiority or the superiority of either of the sexes, or on

stereotyped roles for women and men.

Article 9 - Right to Participation in the Political and Decision-Making

Process

2. State Parties shall ensure increased and effective

representation and participation of women at all levels of

decision-making.

4.2.2. Southern Africa Protocol and Gender and Development

provides

Article 7 (f) reads:

“that women have equitable representation on, and

participation in, all courts including traditional courts,

alternative dispute resolutions mechanism and local

community courts”

4.3 Domestic Legal Framework

4.3.1. The Constitution of the Republic of South Africa 108 of 1996

In construing the rights enshrined in the Constitution, it is

paramount to highlight a profound and most powerful, but

yet humble statement, in the preamble of the Constitution.

The preamble provides as follows:-



17

“We, the people of South Africa,

Recognise the injustices of our past;

Honour those who suffered for justice and freedom in our land;

Respect those who have worked to build and develop our country;

and

Believe that South Africa belongs to all who live in it, united in our

diversity.

We therefore, through our freely elected representatives, adopt this

Constitution as the supreme law of the Republic so as to—

Heal the divisions of the past and establish a society based on

democratic values, social justice and fundamental human rights;

Lay the foundations for a democratic and open society in which

government is based on the will of the people and every citizen

is equally protected by law;

Improve the quality of life of all citizens and free the potential of

each person; and

Build a united and democratic South Africa able to take its

rightful place as a sovereign state in the family of nations.

May God protect our people.

Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso.

God seën Suid-Afrika. God bless South Africa.

Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.”

Equally so, the rights enshrined in the Constitution ought to be

interpreted with section 2 of the Constitution which provides that:-

“This Constitution is the supreme law of the Republic; law or conduct

inconsistent with it is invalid, and the obligations imposed by it must

be fulfilled.”



18

Fundamentally, women are entitled not only to the citizenship of our

country, but are entitled to the rights, privileges and benefits of

citizenship. These sentiments are echoed in section 3(2)(a) and (b)

which provides that:-

“All citizens are:

(a) equally entitled to the rights, privileges and benefits of

citizenship; and

(b) equally subject to the duties and responsibilities of

citizenship.”

In ensuring that women are afforded their rightful place in our

society and in ensuring that their rights as enshrined in the

Constitution are realised, it is important to give meaning to section 7

of the Constitution which recognises that the Bill of Rights is a

cornerstone of democracy in South Africa, as it provides that:-

(1) “This Bill of Rights is a cornerstone of democracy in South

Africa. It enshrines the rights of all people in our country and

affirms the democratic values of human dignity, equality and

freedom.

(2) The state must respect, protect, promote and fulfil the rights

in the Bill of Rights.”

There is no doubt, as provided for in section 8 of the Constitution that

the Bill of Rights applies to all law, and binds the legislature, the

executive, the judiciary and all organs of state.

The law, practice, policy and/or any criteria designed and

implemented in the selection process of determining who must be

appointed as an acting or permanent Judge must be done in

conformity with the principles, spirit, values and purport enshrined in

our Constitution and to give effect to the Bill of Rights.

The right to equality is enshrined in the Constitution as per section 9:



19

“Section 9: Equality

1. Everyone is equal before the law and has the right to equal

protection and benefit of the law.

2. Equality includes the full and equal enjoyment of all rights

and freedoms. To promote the achievement of equality,

legislative and other measures designed to protect or

advance persons, or categories of persons, disadvantaged

by unfair discrimination may be taken.

3. The state may not unfairly discriminate directly or indirectly

against anyone on one or more grounds, including race,

gender, sex, pregnancy, marital status, ethnic or social origin,

colour, sexual orientation, age, disability, religion,

conscience, belief, culture, language and birth.

4. *No person may unfairly discriminate directly or indirectly

against anyone on one or more grounds in terms of

subsection (3). National legislation must be enacted to

prevent or prohibit unfair discrimination.

5. Discrimination on one or more of the grounds listed in

subsection (3) is unfair unless it is established that the

discrimination is fair”.

In addition, the Promotion of Equality and Unfair Discrimination Act

4 of 2000 expands upon the above cited constitutional imperative

by delineating the right not to be unfairly discriminated on the

grounds of gender.

Chapter 8 of the Constitution titled “Courts and Administrative

Justice” sets out the procedure for the appointment of permanent

and acting Judges. Moreover, it further provides for the

establishment and composition of the Judicial Services Commission.

174: Appointment of judicial officers

1. Any appropriately qualified woman or man who is a fit and



20

proper person may be appointed as a judicial officer. Any person to

be appointed to the Constitutional Court must also be a South

African citizen.

2. The need for the judiciary to reflect broadly the racial and gender

composition11 of South Africa must be considered when judicial

officers are appointed.

3. The President as head of the national executive, after consulting

the Judicial Service Commission and the leaders of parties

represented in the National Assembly, appoints the Chief Justice

and the Deputy Chief Justice and, after consulting the Judicial

Service Commission, appoints the President and Deputy President

of the Supreme Court of Appeal.

4. The other judges of the Constitutional Court are appointed by the

President, as head of the national executive, after consulting the

Chief Justice and the leaders of parties represented in the

National Assembly, in accordance with the following procedure:

a. The Judicial Service Commission must prepare a list of nominees

with three names more than the number of appointments to be

made, and submit the list to the President.

b. The President may make appointments from the list, and must

advise the Judicial Service Commission, with reasons, if any of the

nominees are unacceptable and any appointment remains to

be made.

c. The Judicial Service Commission must supplement the list with

further nominees and the President must make the remaining

appointments from the supplemented list.

11 Own emphasis added.



21

5. At all times, at least four members of the Constitutional Court must

be persons who were judges at the time they were appointed to

the Constitutional Court.

6. The President must appoint the judges of all other courts on the

advice of the Judicial Service Commission12.

7. Other judicial officers must be appointed in terms of an Act of

Parliament which must ensure that the appointment, promotion,

transfer or dismissal of, or disciplinary steps against, these judicial

officers take place without favour or prejudice.

8. Before judicial officers begin to perform their functions, they must

take an oath or affirm, in accordance with Schedule 2, that they

will uphold and protect the Constitution.

175: Acting judges

1. The President may appoint a woman or a man to be an acting

judge of the Constitutional Court if there is a vacancy or if a judge

is absent. The appointment must be made on the

recommendation of the Cabinet member responsible for the

administration of justice acting with the concurrence of the Chief

Justice.

2. The Cabinet member responsible for the administration of justice

must appoint acting judges to other courts after consulting the

senior judge of the court on which the acting judge will serve.

176: Terms of office and remuneration

1. A Constitutional Court judge holds office for a non-renewable

term of 12 years, or until he or she attains the age of 70, whichever

occurs first, except where an Act of Parliament extends the term of

office of a Constitutional Court judge.

12 Own emphasis added



22

2. Other judges hold office until they are discharged from

active service in terms of an Act of Parliament.

3. The salaries, allowances and benefits of judges may not be

reduced.

177: Removal

1. A judge may be removed from office only if

a. the Judicial Service Commission finds that the judge suffers

from an incapacity, is grossly incompetent or is guilty of gross

misconduct; and

b. the National Assembly calls for that judge to be removed, by

a resolution adopted with a supporting vote of at least two

thirds of its members.

2. The President must remove a judge from office upon

adoption of a resolution calling for that judge to be

removed.

3. the President, on the advice of the Judicial Service

Commission, may suspend a judge who is the subject of a

procedure in terms of subsection (1).

178: Judicial Service Commission

1. There is a Judicial Service Commission consisting of

a. the Chief Justice, who presides at meetings of the Commission;

b. the President of the Supreme Court of Appeal;

c. one Judge President designated by the Judges President;

d. the Cabinet member responsible for the administration of

justice, or an alternate designated by that Cabinet

member;



23

e. two practising advocates nominated from within the

advocates’ profession to represent the profession as a

whole, and appointed by the President;

f. two practising attorneys nominated from within the

attorneys’ profession to represent the profession as a whole,

and appointed by the President;

g. one teacher of law designated by teachers of law at South

African universities;

h. six persons designated by the National Assembly from

among its members, at least three of whom must be

members of opposition parties represented in the Assembly;

i. four permanent delegates to the National Council of

Provinces designated together by the Council with a

supporting vote of at least six provinces;

j. four persons designated by the President as head of the

national executive, after consulting the leaders of all the

parties in the National Assembly; and

k. when considering matters relating to a specific High Court,

the Judge President of that Court and the Premier of the

province concerned, or an alternate designated by each of

them.

2. If the number of persons nominated from within the

advocates’ or attorneys’ profession in terms of subsection (1)

(e) or (f) equals the number of vacancies to be filled, the

President must appoint them. If the number of persons

nominated exceeds the number of vacancies to be filled,

the President, after consulting the relevant profession, must

appoint sufficient of the nominees to fill the vacancies,

taking into account the need to ensure that those

appointed represent the profession as a whole.



24

3. Members of the Commission designated by the National

Council of Provinces serve until they are replaced together,

or until any vacancy occurs in their number. Other members

who were designated or nominated to the Commission serve

until they are replaced by those who designated or

nominated them.

4. The Judicial Service Commission has the powers and

functions assigned to it in the Constitution and national

legislation.

5. The Judicial Service Commission may advise the national

government on any matter relating to the judiciary or the

administration of justice, but when it considers any matter

except the appointment of a judge, it must sit without the

members designated in terms of subsection (1) (h) and (i).

6. The Judicial Service Commission may determine its own

procedure13, but decisions of the Commission must be

supported by a majority of its members.

7. If the Chief Justice or the President of the Supreme Court of

Appeal is temporarily unable to serve on the Commission,

the Deputy Chief Justice or the Deputy President of the

Supreme Court of Appeal, as the case may be, acts as his or

her alternate on the Commission.

8. The President and the persons who appoint, nominate or

designate the members of the Commission in terms of

subsection (1) (c), (e), (f) and (g), may, in the same manner

appoint, nominate or designate an alternate for each of

those members, to serve on the Commission whenever the

member concerned is temporarily unable to do so by reason

of his or her incapacity or absence from the Republic or any

other sufficient reason.

13 Own emphasis added



25

3.4.2 Judicial Service Commission Act 9 of 1994

The JSC is further enabled by Act 9 of 1994. Section 5 of the said

statute titled “Publication of procedure of Commission” provides that

the:

“The Minister must by notice in the Gazette, make known the

particulars of the procedure, including subsequent amendments,

which the Commission has determined in terms of section 178 (6) of

the Constitution.”

In accordance with the section 5 here above, the Minister14 has published the

procedure utilised by JSC for the nomination of candidates for appointment as

permanent Judges. The following diagram gives a simplistic overview of the

nomination and appointment process of Judges: -

14 Regulation Gazette, No. 24596, 27 March 2003

JSC publishes a publicnotice giving details of the vacancies that exist and calls fornominations

Shortlists suitable candidatesand invites them forinterviews. Professionalbodies and members of thepublic have the opportunityto comment prior to theinterviews or to makerepresentations concerningthe candidates to thecommission.

The interviews areconducted inpublic, after whichthe JSC deliberates and makes its decisionsin private. Its recommendations are communicated to thepresident, who thenmakes the appointments.



26

The gazetted procedure provides that an ad hoc commitee of the

JSC be tasked with the screening of the nominated candidates .Of

key importance is that the screening committee must provide the

short list of candidates15 to the members of the Commission prior to

the final list being sent out for comment.

Members of the JSC may within 7 days of receipt of the short list

request “ the Secretary of the Commission in writing to add to the

short list the name of any candidate who was duly nominated but

who was not included in the short list and who the member feels

strongly should be added to the shortlist or candidates to be

interviewed”16. Thereafter , the name of any such candidate shall

thereupon be added the short list.

The short list is then provided to key institutions for comment and

“publicly announced for comment by a specified closing date” . It

is noted that the CGE does not form part of the said institutions as to

date , the JSC has never formally sent the CGE the list but rather CGE

has received same by means of the media and / or the

Constitutional Court mailing list. Per the definition clause , institutions

encapsulates : “the Law Society of South Africa, the Black Lawyers

Association, the Department of Justice and Constitutional

Development, the General Bar Council of South Africa, Magistrates

Association of South Africa, the National Association of Democratic

Lawyers, the Society of Teachers of Law and the Association of

Regional Magistrates of South Africa, and such other institutions with

an interest in the work of the Commission as the Commission may

identify from time to time”.

The interview process is made open to the public and media . The

JSC deliberate in private and by consensus or if required by majority

vote, select candidates for recommendation in accordance with

the overarching constitutional prescripts.

15 After the screening process 16 Section f 2(ii)



27

The delineated procedure is provided an open ended departure

clause in section 7 thereof, wherein the JSC may “depart or

condone any departure from this procedure whenever, in its opinion,

it is appropriate to do so”.

In 201017 during a special sitting of the JSC , it was resolved to publish

criteria used when considering persons for judicial appointment. The

intention of publication of the critera is motivated as follows:-

“This decision is in line with the JSC’s principle that the process of

judicial appointments should be open and transparent to the public

so as to enhance public trust in the judiciary.

The specified criteria contains those as set in the Constitution and

further supplementary criteria.

The following criteria are used in the interview of candidates, and in

the evaluation exercise during the deliberations by the members of

the Commission:

Criteria stated in the Constitution

1 Is the particular applicant an appropriately qualified person?

2 Is he or she a fit and proper person, and

3 Would his or her appointment help to reflect the racial and gender

composition of South Africa?

Supplementary Criteria

1 Is the proposed appointee a person of integrity?

2 Is the proposed appointee a person with the necessary energy and

motivation?

3 Is the proposed appointee a competent person?

17 10 September



28

(a) Technically competent

(b) Capacity to give expression to the values of the Constitution

4 Is the proposed appointee an experienced person?

(a) Technically experienced

(b) Experienced in regard to values and needs of the community

5 Does the proposed appointee possess appropriate potential?

6 Symbolism. What message is given to the community at large by a

particular appointment?

5. GENDER TRANSFORMATION IN THE JUDICIARY – THE CURRENTSTATUS QUO (INSTITUTIONAL ANALYSIS)

It has been widely reported that women are not adequately represented in the

legal profession and in turn the judiciary within South Africa. Both the South

Africa CEDAW periodic report and the Non-Governmental shadow report

reflect this shortcoming.

As such, it must be pointed out that meaningful transformation (in its broadest

sense) has been slow in the legal profession. Men dominate the top positions in

the profession (senior partners of law firms, senior counsel at the Bar and senior

members of the judiciary) and in private practice these men are more often

than not white. According to the 2013South African Legal Fellows Network

survey,18 South Africa’s major corporate law firms are still dominated by white

men, especially its upper echelons. In the 12 large firms canvassed 80 per cent

of the chief executives were white men, as were 72 per cent of all managing

partners. The picture at the CEO/managing partner level was replicated in the

ownership and remuneration structures of the firms: 53 per cent of all equity

partners were also white and male. While the judiciary has done better than

18 See Mapula Sedutla“Necessary Transformation” vol. 10 (2013) De Rebus 114. See also CALS & Foundation forHuman Rights Report “Transformation of the Legal Profession” (2014) at 5.



29

the profession at large in changing its racial profile, the same is not entirely true

for changing the gender composition of the judiciary. Over the past 20 years the

number of women on the Constitutional Court has remained unchanged: two

in 1994 and two in 2014 while the percentage of women in other High Courts

remains below 30%: as at October 2013, there were 77 women judges out of a

total of 239 in South Africa.19

The number of women recently shortlisted by the JSC for various vacancies on

the High Courts, suggest that while progress is being made, there appears to

be a shortage of women candidates viewed as appointable by the Judicial

Service Commission (JSC). Since June 2012 there has been two rounds of

interviews for appointments to the Constitutional Court. During these two rounds,

nine candidates were interviewed, of whom eight were men and one was a

woman. Out of these two processes, two men were appointed. At the level of

the Supreme Court of Appeal (SCA), there have been three interview processes

since June 2012. Fifteen candidates were interviewed. Of these candidates,

there were 13 men and two women. Six men and one woman were appointed

out of these processes. At High Court level, which includes the Labour Appeal

Court, Labour Courts, Electoral Courts and Land Claims Courts, there have been

four interview processes. During these processes, 61 candidates were

interviewed, of whom 32 were men and 29 were women. These processes led

to the appointment of 17 men and 14 women judges.20

The CGE during compilation of its CEDAW baseline report noted the following

statistics within the judiciary21: -

19CALS & Foundation for Human Rights Report “Transformation of the Legal Profession” (2014) at 6.20 CALS & Foundation for Human Rights Report “Transformation of the Legal Profession” (2014) at 6.21 Statistics provided by the JSC in 2013



30

The JSC rightly commented on the progress made since 27 April 1994: -

There were 165 Judges, 160 of those were white men, three were black men and

two were white women. At that stage there was no black woman Judge in South

Africa.

Progression / Comparison:

1994 to 2013

22 For the compilation of CGE’s CEDAW baseline report.

COURT MALE FEMALE

Constitutional Court 9 2

Supreme Court of Appeal 19 8

Northern Cape 4 3

Eastern Cape: Grahamstown & Port Elizabeth

12 5

Bisho 3 1

Mthatha 4 3

Western Cape 23 10

North West 3 3

Free State 10 4

North & South Gauteng 62 22

KwaZulu-Natal 18 9

Labour Court 6 4

Total 173 74

180

160

140

120

100

80

60

40

200

1994

Men

Women

2013

Men



31

The CGE requested information from the JSC 22 which it responded with the

following as to the challenges facing gender transformation in the judiciary: -

“The judiciary has worked tirelessly over the past decade to undo the thread of

injustices that are still deeply embedded in our society. The Judicial Service

Commission has made significant progress in remedying the skewed race and

gender balance in the judiciary in South Africa. In a society such as ours, where

patriarchy is so deeply embedded, the value of the participation of women on

the bench cannot be underestimated. The need for women both on the

judiciary as a whole and in leadership positions in particular cannot be

exaggerated. The Judicial Service Commission has started to break important

ground with the appointment of the first female Judge President, namely Judge

President Monica Leeuw, appointed in April 2010. However, the picture remains

unsatisfactory despite the passage of time and the Judicial Service Commission

recognises this. The issue of the paucity of women on the bench needs to be

addressed in a coordinated manner with all the stakeholders, including the

CGE, legal profession, academia and Women’s Organisations. We should all be

alive to the fact that there cannot be any quick fix in ensuring that more women

are appointed in the bench. It is a process which may take some time23”.

A further analysis of this submission is made in-depth below in the report.

It is further highlighted that the legal pool to source candidates is somewhat

limited. This is pronounced in examination of the sex disaggregated statistics of

both the General Council of the Bar (GCB) and the Law Society of South Africa

as at 2013:

23 Response to CGE questionnaire – CEDAW



32

The Law Society of South Africa (LSSA) noted a total membership of 21 463 of

which 7577 being female and 13 717 males24.

It has been recorded that female judges have reported feeling resented,

invisible and excluded by male judges and lawyers. This in turn provides further

motivation for increased visibility of women in the judiciary as it is essential to

breaking down these patriarchal stereotypes and normalising the way in which

female judges are perceived and treated25. To date there are no substantive

remedies mentioned for the lack of female representation within the judiciary26.

Updated statistics regarding paucity in the judiciary27 As received from the JSC

in April 2016.

24 Statistics provided by JSC as at June 2013 25 http://www.ghjru.uct.ac.za/pdf/More_women_on_the_bench_offer_a_better_gender_perspective.pdf 26 http://www.iol.co.za/news/crime-courts/more-women-judges-needed-1.1411929 27 As received from the JSC in April 2016.

COUNCIL / BAR FEMALE MALE

Cape Bar Council 109 343

Port Elizabeth Bar 13 52

Grahamstown Bar Council 4 23

Free State Bar Council 9 55

Northern Cape Bar 3 4

Johannesburg Bar Council 245 687

Pretoria Bar Association 70 436

KwaZulu Natal Bar 70 223

North West Bar 5 14

Transkei Bar 3 25

Bisho Bar 3 16

Total 601 1878



33

In summary, all the information sourced during the investigation, legal writings,

CGE’s institutional analysis and gender disaggregated statistics clearly illustrate

that the judiciary is not reflective of the broader racial and gender society in

which we live.

6. Investigation / Steps taken28

As cited here above, the lodged complaint concerns an intricate, multifaceted

and interrelated issue which history is deeply rooted in the segmented past that

belies South Africa. The aforementioned interrelated and complexities saw the

CGE deploy a multi-pronged approach in understanding the issues and causes

with hamper a truly reflective judiciary.

The following shall provide a visual illustration of the processes taken in the far

reaching investigation.

28 Includes methodology used in support of the final recommendations

PERMANENT JUDGES

AFRICAN MALE

AFRICAN FEMALE

COLOURED MALE

COLOURED FEMALE

INDIAN MALE

INDIAN FEMALE

WHITE MALE

WHITE FEMALE

NU

MBE

R O

F JU

DG

ES

80

70

60

50

40

30

20

10

0



34

29 Right of reply

In accordance with the CGE’s gazetted complaints handling manual, the

investigation commenced with the said complaint being placed before the

Respondents for response29. The Respondents were also requested to respond

to specific questions as follows:

a) What measures (policies / programmes / legislation) are being

implemented / considered by the Judiciary and the respective

Respondents in dealing with the slow pace of gender transformation

within the Profession.

b) How will these measures adequately address this form of gender

discrimination as alleged by the complainants? Please provide an

explanation.

c) What measures are being implemented to ensure that more women are

nominated, short-listed, interviewed and appointed into judicial positions?

Lodged Complaint

Responses from Cited Respondents

Observing Judical Interviews and meetings with JSC

Information sought from Key Stakeholders

Opinion from Constitutional Law Expert

Draft investigation report disseminated for inputs

Final Investigative Report



35

d) Who facilitates the process of sifting through and short-listing candidates?

(Both permanent and acting appointments).

e) What measures are being implemented / considered to increase and

capacitate the pool of female legal professionals to ensure that they are

primed to take up seats within the judiciary and what support structures

exist to mentor and groom female incumbents?

f) What measures are being implemented / considered to address the lack

of gender sensitivity by judges who preside over cases where women are

particularly vulnerable i.e. cases of sexual assault, violence against

women, rape… particularly when handing down judgments?

g) Kindly identify the barriers that exist within the profession that impedes the

appointment of females to judicial positions and how will this be

addressed?

The CGE’s analysis of the responses of each entity can be seen hereunder30:-

6.1 Presidency

The response is heavily reliant on the legal framework governing the

appointment of Judges and Acting Judges. This is evident as most answers

provided by the Presidency referred the CGE to engage with the CJ,

Department of Justice and Constitutional Development and the JSC.

Paragraph 7 of the cited reply is highlighted in support of the final

recommendations to this report: -

“It is therefore recommended that you must consider engaging with the

JSC, the Minister responsible for the administration of justice, the office of

the Chief Justice, as well as other legal professional bodies”.

30 Copies of the responses are annexed hereto marked Annexures A 1 – 3



36

6.2 Ministry of Justice and Correctional Services

The Ministry took a similar stance to that of the Presidency and

predominantly focused on the legislative framework governing judicial

appointments, being that the JSC is tasked with the nomination and

recommendation process. Nonetheless, the Ministry did correctly

emphasise that that government and / or the state cannot solely affect

the change required as it shall require “contribution by all who are involved

and affected by this state of affairs”.

The CGE accords with this view as despite legislative prescripts, the call for

nominations require submission of candidates who have requisite legal

capacity and expertise required for the judicial role. Consequently, role

players / parties such as institutions of higher learning, law firms, law

societies, the respective advocate bars and non-governmental

organisations all need to have a common and co-ordinated role to play

in the development of women to take the heralded position of a Judge.

Of significance in the reply to the posed question, “what measures are

being implemented to increase and capacitate the pool of female legal

practitioners to ensure that are primed to take up seats within the judiciary

....” the Ministry cites increase of briefs being afforded to “previously

disadvantaged persons”. No gender disaggregated statistics are provided.

Thus, it is questioned whether race triumphs gender in the allocation of the

said briefs31

In reply to the previous question, solace may be taken from the comments

made by Deputy Minister of Justice, John Jeffery at the end of 2014 during

a seminar titled “Gender transformation within the Legal Profession32”: -

“It is also encouraging to note that of the briefs given to counsel by the

State Attorney here in Cape Town, nearly half have gone to female

practitioners. In the last financial year a total of 572 briefs were given to

31 The allocation of briefs to previously disadvantaged persons 32 Initiated by the Western Cape branch of the National Association of Democratic Lawyers (NADEL), in partnershipwith Foundation for Human rights.



37

33 “A Framework for the transformation of the State Legal Service Opening the doors of access to equal andaffordable justice for all”, Department of Justice and Constitutional Development (2012) 34 http://www.news24.com/SouthAfrica/News/New-solicitor-general-position-will-drive-transformation-of-the-legal-profession-Masutha-20150519 35 Published for comment in 2012

counsel, of those 272 briefs went to female advocates and 300 to males. Of

the 272 briefs that went to female counsel, 94 were given to African females,

94 to Coloured females, 47 to Indian females and 37 to white females.”33

The state’s averment that it is dedicated to transformation was provided

further underpinnings with the recent announcement of proposed

appointment of a Solicitor-General.34 The aforementioned announcement

is a direct result of the policy framework titled: “A Framework for the

transformation of the State Legal Service Opening the doors of access to

equal and affordable justice for all”35 which in turn led to the drafting of the

State Attorney Amendment Bill.

The policy framework recognises the need for transformation and cites

measures to accelerate the process. The most significant measure is the

establishment of a Solicitor General who would consolidate and integrate

services within the Department to streamline civil litigation of the State and

oversee transformation. The policy framework also notes with concern the

lack of paucity within the legal fraternity and cites how the Department

shall increase briefing to women: -

“The underrepresentation of women in legal practice is a cause for

concern and requires special interventions in briefing patterns by both the

state and the private sector. As women are severely underrepresented in

the cadre of advocates and attorneys, the department will prioritise

briefing patterns to improve this capacity. The scope will be extended to

include women attorneys that have the right of appearance in High

Courts. Women will for example be encouraged to join the legal fraternity

by offering bursaries to women, utilising government’s initiatives such as

the Techno girl and appointing women to do articles of clerkship in

government. Furthermore, the work allocated to women will be actively

monitored, with regular debriefings so as to understand the challenges and

find ways to address them.”



38

It is discouraging to note that the Ministry in their response mentioned that

out of 1661 magistrates appointed, 687 have been women36. The

magistracy pool is one of the areas where Judges are drawn from. Be that

as it may, the transformation of new appointments cannot be seen in

isolation and need to be formally compared with the number of

appointment of judges. One can also then ponder why the magistracy is

transforming at what seems to be a far more escalated rate than the

appointment of judges.

At the aforementioned seminar the Deputy Minister, John Jeffery cites,

“the number of female magistrates have increased significantly from a

total of 284 in 1998 to 667 currently. This means an increase of 134%. There

were only 62 African female magistrates in 1998, today there are 285. This

means an increase of 359%. Of the 285, 2 are Regional Court Presidents

and nearly 50 are Regional Magistrates.

The other percentage changes in our magistracy since 1998 show that the

number of Indian females have increased by 363%, Coloured females by

1120% and white females by 17%. For the first time in the history of the

magistracy we now have more women than men at the level of Chief

Magistrate. Of the 18 Chief Magistrates, 10 are female (six African females,

two Indian females, one Coloured female and one White female). Of the

nine Regional Court Presidents, four are female37.

In comparison of the statistics provided by the Ministry in reply to CGE’s

questionnaire and the recent speech delivered by the Deputy Minister, one

can deduce that there has been a reduction of female magistrates. This

raises the question of why the decrease of 20 female magistrates in a

period of over a year?

36 59 % women.37 http://www.gov.za/deputy-minister-john-jeffery-gender-transformation-legal-profession-seminar



39

At the time of the Ministry’s response, the Legal Practice Bill had not been

promulgated, however, the Ministry in the response affirms that the statute

seeks to address the obstacles placed in the path of women in the journey

towards judicial appointment. Nonetheless, the CGE observes that the

Legal Practice Act 28 of 2014 will take a considerable period for full

implementation38.

Currently only sections 1 and 2 (ss 96 – 109) of chapter 10 are in operation

as from the 1st February 2015. Thereafter, the remaining sections shall come

into operation on a staggered manner on dates to be fixed by the

President.

The currently operative sections concentrate on the National Forum and its

objectives as per Section 97 (1)

(1) The National Forum must, within 24 months after the commencement of

this Chapter—

(a) make recommendations to the Minister on the following:

(i) An election procedure for purposes of constituting the

Council;

(ii) the establishment of the Provincial Councils and their areas

of jurisdiction, taking into account the factors referred to in

section 23(2)(a);

(iii) the composition, powers and functions of the Provincial

Councils;

(iv) the manner in which the Provincial Councils must be elected;

(v) all the practical vocational training requirements that

candidate attorneys or pupils must comply with before they

can be admitted by the court as a legal practitioners;

(vi) the right of appearance of a candidate legal practitioner in

court or any other institution; and

(vii) a mechanism to wind up the affairs of the National Forum;

38 http://www.lssa.org.za/index.php?q=con,367,History_of_the_Legal_Practice_Act



40

(b) prepare and publish a code of conduct for legal practitioners,

candidate legal practitioners and juristic entities; and

(c) make rules, as provided for in section 109(2).’39

Ironically, the cliché “a picture paints a thousand words” shows the lack of

paucity within the Forum itself40.

Back row standing from left:• Adv Brian Nair, Legal Aid South Africa• Adv Jurgens Prinsloo SC, National Forum of Advocates (NFA)• Adv Mark A Hawyes, National Bar Council of South Africa (NBCSA)• Adv Dali Mpofu SC, General Council of the Bar of South Africa (GCBSA)• Adv Gregory Harpur SC, General Council of the Bar of South Africa (GCBSA)• Mr Kisten Govender, LSSA, National Association of Democratic Lawyers

Middle row standing from left:• Professor Managay Reddi, South African Law Deans Association• Adv Thami Ncongwane SC, General Council of the Bar of South Africa (GCBSA)• Ms Kathleen Matolo-Dlepu, LSSA , Black Lawyers Association• Adv Dumisa Ntsebeza SC, Advocates for Transformation (AFT)• Adv Geoffrey Budlender SC, General Council of the Bar of South Africa (GCBSA)• Ms Manette Strauss, LSSA, KwaZulu-Natal Law Society• Ms Thina Siwendu, Person as Designated by Minister: DoJ&CS• Mr Abednego Mathebula, Attorneys Fidelity Fund Board• Ms Janine Myburgh, LSSA, Cape Law Society

First row sitting from left: • Mr Jan Stemmett, LSSA, Law Society of the Northern Provinces• Mr Max Boqwana, LSSA, National Association of Democratic Lawyers• Adv Kgomotso Moroka SC, Person as Designated by Minister: DoJ&CS• Ms Charity Mhlungu, Executive Officer• Mr Lutendo Sigogo, LSSA, Black Lawyers Association• Mr Jan Maree, Law Society of the Free State

40 - 14 men to 16 women.



41

In reply to the CGE’s draft investigative report, the Minister of Justice and

Correctional Services cited support for the CGE’s recommendation that

there should be an engagement between the parties (the CGE,

Department of Justice and Correctional Services, Judicial Service

Commission and the Presidency) to convene a National summit to

actively engage key stakeholders to discuss gender transformation in the

judiciary and come up with practical resolutions and implementation

plan on the matter. The Ministry further added that “it is therefore

recommended that the JSC in partnership and consultation with the

Department of Justice and Correctional Services, CGE and Portfolio

Committee on Justice and Correctional Services convene a notional

symposium/seminar/summit to actively engage key stakeholders to

discuss gender transformation in the Judiciary”. However, The Ministry

noted its reservation to the above commitment and would commit only

if other key role-players were amenable to such an event.

The Ministry stressed that the issue of transformation is something that has

formed the subject of various departmental initiatives and mentioned

that it formed part of their recent Symposium held on the 30th September

2015 and 1st October 2015 for the State Attorney and held a two-day

dialogue on transformation in the legal profession which included a day

on women in the legal profession which took place on the 14th to the 15th

December 2015. However, the Ministry did not share what findings and

commitments were taken at the two events.

Regarding the recommendation that the Department of Justice and

Correctional Services develop legislation that will deal with gender

transformation in the Judiciary, the Ministry was unenthusiastic regarding

the suggestion, citing section 174(2) of the Constitution of the Republic

of South Africa which speaks broadly on issues of race and gender

composition of South Africa when judicial officers are appointed. The

CGE places concern on this direction of argument as there is a large

vacuum as what is in place to monitor and give to the effect S174(2) of

the Constitution.



42

In reply to the CGE’s draft recommendation that the state attorney

general and private sector should ensure that there is equal distribution of

briefs to both women and men with particular reference to black women,

the Ministry admitted that there is evidence that when attorneys and

advocates are briefed to act on behalf of the state the instructions are

not shared equitably among the diverse constituencies of practitioners,

with black and female practitioners being the worst affected.

To address this deficiency, the State Amendment Act 13 of 2014 provides

for the development of policy of briefing patterns and mediation. The

Ministry has given itself a target of 76% of briefs to be given to black and

female practitioners and acknowledges that part of the 76% should be

strictly earmarked for African women.

The Ministry acknowledged that in the 2014/2015 financial year, the total

value of briefs given to female counsel was R139 436 66 compared to

R515 2967 83 that was given to male counsel which is still farfetched from

the Ministry’s target.

The Ministry also indicated that no single role player in the justice system

can bring about transformation of the judiciary on its own. The legal

profession, the JSC, the Department of Justice and Correctional Services

and the Magistrate’s Commission must address this matter.

Briefs

Men Women



43

6.3 Judicial Service Commission

It is noted that the CJ41 responded to the CGE in his capacity as

Chairperson of the Judicial Service Commission42. From the onset it is

recorded that the response provided to the CGE largely echoes the

response as provided in June 2013 to the CGE’s CEDAW

questionnaire.

An aspect which needs to be reiterated is the JSC established an Ad

Hoc Committee to investigative the paucity of women candidates.

The provided response states that the said Committee under

leadership of Advocate Ntsebeza SC recognised the urgent need for

women candidates to make themselves available – recommending

that more women from private practice and academia should be

encouraged to attend trainee programmes offered by the South

African Judicial Educational Institute. The submission made by the

JSC in this regard fails to elaborate and answer the following critical

questions (a) how women can make themselves available to the

bench; and (b) whether the JSC has created an environment in

which a pool of female candidates are permitted to avail

themselves. The JSC makes reference to the training programmes

offered by the South African Judicial Educational Institute and it is

unclear how many female candidates benefited from this

programme and eventually considered for appointment on the

bench.

Through the CGE’s observations at the interview process convened

by the JSC43, it was dramatically evident that each candidate is

asked if they have held an acting position. The process of selection

and appointment of acting positions is vague and open to influence

as it primarily rests on the respective Judge Presidents to source a

suitable candidate and make recommendation for appointment.

41 Chief Justice 42 The citation of the CJ in his capacity as head of the Constitutional Court, may be considered overstepping thelines of the separation of powers doctrine. 43 Same will be further discussed hereunder



44

The aspect of acting positions can be seen as a conduit to be

appointment on a permanent level.

As set out in the gazetted procedure for the selection and

interviewing of possible permanent appointments can be described

as broad as there are no specific provisions for how or in what manner

the call for nominations shall be published and / or advertised.

Moreover, the lack of specific time lines for the time between calls for

nomination and the request for comment by institutions and the

public need require further detail / tightening. DGRU provide a key

function in researching candidates’ judgments prior to the interview

process. The CGE commends the important function that the DGRU

undertakes as it provides a factual basis for assessment of candidate.

In a recent report it averred “insufficient time to conduct adequate,

in-depth research into the judicial backgrounds of the candidates”44

The CGE also notes the departure clause in the formal procedure as a

means to negate the procedure set out. Moreover, the aspect that a

member of the JSC may call for a candidate to be shortlisted after the

sifting process of the ad hoc committee is nonsensical as the sifting

committee and the listed criteria should produce the required result.

The JSC’s publicised criteria for consideration of candidates during

the sifting and interview process is also considered open ended. For

example, the supplementary criteria pose the following question: -

“Is the proposed appointee a person with the necessary energy and

motivation?”

The question then arises: how would one assess energy and

motivation?

44 http://www.dispatchlive.co.za/news/little-time-to-check/



45

The JSC acknowledged the challenge of the lack of criteria or

process in the selection of Acting Judges with the response to the

draft investigative report and stated the following:

“This issue was brought to the attention of the JSC by the General

Council of the Bar. This culminated in a joint sitting of the JSC and the

Heads of Court to deliberate on this matter. Draft criteria on the

selection of Acting Judges was developed which were served before

the Heads of Court at their meeting held on 03 April 2016. At this

meeting, the Heads of Court unanimously approved the criteria that

will be used when Acting Judges are considered by the Heads of

Court.”

The JSC further observed and highlighted the following 45:

“The issue of slow pace of gender transformation within the Judiciary

cannot be resolved by the JSC only as it is a worldwide phenomenon.

Many jurisdictions including some of the mature democracies have

been grappling with this issue for a long time and it may take a while

to be resolved. Despite this challenges, the JSC has seriously

considered the role of women and the recent recommendations

have been very positive. There is definitely progress from the side of

the JSC despite a small pool of women candidates from which

Judges could be drawn.

Since October 2011, the JSC has recommended about 119

candidates to the President for appointment in the Superior Courts.

Of the 119 candidates, the JSC recommended 47 women

candidates. These recommendations have seen some women

candidates being recommended to leadership positions thereby

dispelling the misconception that judicial leadership is the preserve of

men. Amongst the leadership positions to which women candidates

45 Correspondence dated 29 April 2016.



46

were recommended in the Superior Courts recently are the Deputy

President of the Supreme Court of Appeal, the Judge President of the

Free State Division of the High Court; the Deputy Judges President of

the Limpopo and Western Cape Divisions of the High Court.”

It is evident from the JSC response that women are recommended to

leadership positions provided that women are available and

nominated.

The CGE applauds the frankness of the JSC in its response that the

“issue of paucity of women on the bench needs to be addressed in a

coordinated manner with all the stakeholders including the CGE, legal

profession, academia and Women’s organisations.46”

The forthrightness of the JSC sparks the question of whether affirmative

action measures are required to be deployed by the said Commission.

This question is also supported by academic scholars wherein it is asked

why women are unrepresented in the judiciary in a country that

mandates affirmative action in making appointment?47 Many would

argue that this may undermine the independency of the judiciary as it

would narrow. However, on the reverse, it could be argued the

Constitutional dictates as contained in Section 174(2) provide for such

measures to be taken.

The CGE notes that all three responses contain the “fingering

approach” wherein the CGE is directed to request further response or

pose the said questions to the other role players in the sector. This leaves

an ever lingering impression that the goal of gender transformation

within the judiciary is being addressed in silo’s as opposed to a holistic

and co-ordinated approach. The JSC highlighted that the President has

no discretion to reject a list of recommended candidates in respect of

candidates recommended pursuant to the provisions of section 174(6)

46 See page 3 of the JSC response to the CGE dated 17 June 201347 Cohan R, Women’s representation on the courts in South Africa , U.MD.L.J Race, Religion, Gender and Class, Vol6 , 2006 at page 305.



47

of the Constitution. The Presidency may decide against making an

appointment from the list submitted by the JSC, if any of the

recommended candidates on the list are unacceptable only in respect

of candidates recommended for appointment in the Constitutional

Court. With regards to the other Judges, the JSC observed that section

174(6) of the Constitution expressly provides that the President must

appoint Judges of all the courts on the advice of the JSC. This

submission indicates the important role of the JSC and the Presidency

in the appointment of judges. The Presidency can only appoint

candidates that are recommended by the JSC. The JSC on the other

hand relies on the candidates that have been nominated. This is further

evident that the transformation of the judiciary cannot be sole

responsibility of only the presidency nor the JSC.

After receipt of the Respondents’ replying correspondence, it

became apparent that information from key role players in the South

African legal fraternity was required. Accordingly, questionnaires

were dispatched to significant stakeholders: -

• Black Lawyers Association (BLA) –the entity did not respond

despite demand

Such disregard by an association with considerable clout in the

legal sector is worrying and is considered as blatant disregard for

the CGE and its constitutional prerogative.

• The Law Society of South Africa (LSSA)

• South African Chapter of the International Associate of Women

Judges (SAC-IAWJ) – only provided response after the draft

investigative report was provided to the Complainants and

Respondents

• South African Judicial Education Institute (SAJEI);

• National Association of Democratic Lawyers (NADEL); and



48

• Judge Presidents of the High Courts and Appellant Division South

Africa48.

The completed questionnaires were crucial for the CGE to further

understand and conceptualise the systemic causes for the lack of

gender transformation in the judiciary and legal fraternity as a whole.

Moreover, it provided further insight into what may be required to

provide a pragmatic solution to the problem at hand.

The Law Society of South Africa provided the CGE with preliminary

results of its survey centring on the sourcing information as to why the

majority of female law graduates opt not to pursue a legal career in

practice and what challenges female legal practitioners face.

Of key significance is the challenges listed to the social and family

responsibilities carried by women. This in turn led to the indication from

participants of the survey that it overcome these responsibilities and

burden, that there should be “flexible working hours, home offices

and child care facilities at work”.

The LSSA notes that as on the 18th of July 2014, 37% of practising

attorneys were women, an increase of 5 % in five years from the 32 %

in 2009. The progression of 5 % in five years is slow in view of the

provided information that 56 % of candidate attorneys are women.

The paucity of women members in the four provincial law societies

shows that inequality can be further tracked on geographical

jurisdiction. As the investigation spanned over years, the CGE

requested updated statistics to ensure that the report was not dated

in its content. Accordingly, the figure’s marked in red are those as at

1st of August 2016.

48 Copies of the responses and unanswered questionnaires are annexed hereto marked Annexures A 4 – 9



49

The paucity of women members in the four provincial law societies: -

The LSNP which covers a large area of South Africa49 indicates the

lack of women in the practising legal profession, which profession is

used to source candidates for acting positions within the judiciary

(other than Counsel). Of further concern is that the LSSA Council

consists of 20 Councillors of whom only four are female. At a

provincial perspective, the lack of paucity is also apparent in view of

the gender disaggregated statistics of its Councillors

49 Gauteng, Mpumalanga, North West and Limpopo Provinces

Society Female Male

Law Society of the Northern Provinces ( LSNP) 7 (4) 17 (19)

Cape Law Society (CLS) 3 (4) 17 (20)

The Law Societyof the Free State(FSLS) 3 (2) 9 (10)

Kwa-Zulu-NatalLaw Society ( KZNLS ) 4 (4) 16 (16)

Society Female Male

Law Society of the Northern Provinces (LSNP) 4735 (5386) 8014 (8673)

Cape Law Society (CLS) 2073 (2373) 3920 (4026)

The Law Society of the Free State(FSLS) 314 (307) 717 (672)

Kwa-Zulu-NatalLaw Society ( KZNLS ) 1185 (1301) 1865 (1906)



50

As alluded to here above, the decline of women through the

transition from candidacy to that of a practising attorney is

concerning. This is evidenced by the following: -

The South African Judicial Education Institute cites that it provides the

lists of delegates who have undergone training50 to the Judge

Presidents. It is encouraging that the gender disaggregated statistics

of on the number of candidates who had successfully completed the

Basic and Advanced Aspirant Judges Course weigh in the favour of

females.

Like LSSA, the National Association of Democratic Lawyers cites social

and family responsibilities as a barrier hindering the progression of

women in the judiciary. Furthermore, the interview process at the JSC

is said to be “brutal to the women candidates”. The lack of gender

disaggregated data from the entity infers the lack of “gender parity

awareness” in that it was unable to provide gender disaggregated

statistics of its members.

The CGE requested information from all the Judge Presidents with

intent to seek information as to the manner in which they scout for

50 Basic Aspirant Judges Course and Advanced Aspirant Judges Course

Society Female Male

Law Society of the Northern Provinces ( LSNP) (1815) (1412)

Cape Law Society (CLS) (782) (532)

The Law Societyof the Free State(FSLS) (172) (132)

Kwa-Zulu-NatalLaw Society ( KZNLS ) (341) (184)



51

persons for acting positions. The questionnaire was completed by the

Acting Judge President, Judge MH Rampai, of the Free State Division

as a means of a collective response. The cited response reaffirmed

the CGE’s observation that there are not fixed criteria for the process

of selecting a potential person for an acting position: -

“I have no fixed criteria or set of rigid rules. These are the little things I

look for in an individual before I extend an invitation to act:

• A little knowledge of law in general;

• An ability to speak well;

• Mastering the art of writing;

• Capacity for hard work;

• Good name in society;

• Gentle, pleasant, friendly and humble personality”.

The long awaited response from SAC-IAWJ further highlighted the

disconcerted effort in gender transformation in the judiciary.

Increasing the number of women in all levels of the judiciary through

ongoing training and mentorship is one of the broad objectives of

the Chapter. However, the Chapter has no meaningful partnerships

with LSSA, the SAJEI, BLA, the GBC or the Magistrates’ Commission.

The SAC-IAWJ points out a deep-rooted factor that contributes to the

status quo. Even though there are more females graduating from

university, fewer are in practice. The pool from which to draw

practicing female attorneys or advocates gets even smaller. The

result is that there are very few females that can be nominated and

successfully appointed into the judiciary.

The lack of funding and administrative capacity has hampered some

of the good work that the Chapter vigorously ushered in with its

inception. For instance, the last session of formal training for newly

appointed female judges was in 2013. On an ongoing basis, the



52

Chapter hosts dialogues, short courses and seminars in partnership

with tertiary institutions.

From their submission it is difficult to discern how much impact their

initiatives have had on their foremost goal of increasing the number

of women in all level of the judiciary.

The CGE has also held meetings with JSC regarding gender

transformation in the judiciary and to establish a working relationship

that was lacking. It was apparent during the said meetings, that

information regarding the number of nominations and those filtered

by the selection committee was not forthcoming. In essence, the

CGE wished to track the gender disaggregated statistics of the

persons nominated to the persons finally placed on the short list.

Despite resistance in disclosing the aforementioned information, the

interaction between the CGE and JSC amplified the need for CGE to

become an active participant in the nomination process. The

aforementioned led to the CGE nominating Justice Molemela for the

vacancy of Judge President, Free State Division.

Furthermore, the CGE attended as independent observers of the JSC

interview process during April and October 2014 respectively. At the

said interviews it was observed that the utilized venues were not

conducive for the public attendance, thus eroding the transparency

of same. The April 2014 interviews were held at the Bay Hotel, a

luxurious hotel in Camps Bay, Cape Town. Whilst the October 2014

interviews took place at the five-star Apostle Hotel, Cape Town. For

the transparency of such interviews to be maintained, venues

wherein the general public can easily access should be selected.

There were only three female candidates out of twenty being

interviewed for vacancies in the country’s higher courts in April 2015;

a gloomy picture telling the sad tale of how untransformed the upper

echelons of the legal field were. Two of the candidates were



53

recommended for appointment. The questions put to these female

candidates seemed to suggest that the responsibility to rise through

the ranks and adversity of the legal profession as well as coping once

appointed to the bench was a matter of personal responsibility.

The year 2015 ended on a high for gender transformation in the

judiciary with the appointment of Justice Nonkosi Mhlantla to the

Constitutional Court. The post had been vacant for more than a year.

April 2016 saw a varied group of individuals shortlisted for judicial

positions; one can say a good mix of young, old and both genders.

Out of the 34 shortlisted candidates for various courts, 14 were

females. There were 13 vacancies and 11 candidates were

recommended for appointment. Of the 14 female candidates, only

four were appointed. Three already being on the bench with stellar

track records. The fourth candidate impressed with her performance

during her acting stints and well-rounded experience in private

practice.

In general, the line of questioning was non- discriminative; however,

scrutiny fell on the least experienced candidates as well as the

controversial ones.

It is commendable to see that the Commissioners have moved away

from question framed in “how will you cope in a male-dominated

environment” as these seemed to place the burden of a less

transformed field on the female candidates. The line of questioning

was mostly based on judicial competence which also entails broad

understanding of the legal system.

There is will from the institutions that nominate candidates; this might

even be clearer if the JSC could publish the list of all nominees before

the shortlisting. What the interview process shows is that there will be



54

no compromise on merit and judicial excellence for the sake of

achieving gender transformation. The female nominees need to

prove that they meet the standard expected of a judge, on par with

their male counterparts.

Finally, the CGE sought the legal opinion of De Vos regarding the

following pertinent questions: -

1. Whether there is a need for the CGE to hold Public Hearings51 on

the matter in the light of the information received from various

role players; and

2. The feasibility of various issues of concern and associated

recommendations as highlighted by the CGE.

De Vos in his opinion notes that the causes of the lack of gender

transformation in the judiciary is a broad and systemic issue that

cannot be exacerbated by sole focus on the cited Respondents and

key stakeholders, but rather a holistic and pragmatic approach. The

proliferation of causes for the lack of adequate paucity is explained

by De Vos as follows: -

“It must take cognisance of the fact that members of the judiciary

are appointed from among the members of the practicing legal

profession and hence that the culture prevalent within the profession,

the attitudes of its members about gender issues (amongst other

things), the status of women within the profession, and the practices

both within the profession and within the judiciary (including practices

surrounding the appointment of acting judges and possible sexism

within the judiciary) will affect the pace and the quality of gender

transformation in the judiciary’52.

5 There was rigorous internal debate as to whether the CGE could place a Notice to Appear before members ofthe Judiciary and whether holding of a Hearing would be counterproductive to achieving gender paucity onthe bench. 52 De Vos, P “Gender Transformation, what needs to be done”



55

De Vos elaborates that in order to properly address the lack of gender

paucity in the legal profession, the various systemic reasons for lack

of progression of the women as opposed to the male counterparts

need to be identified and addressed. He cites the following as the

systematic reasons: -

a) Institutional Culture

The institutional culture of law firms and the Bar (as well as the

judiciary) is dominated by white male interests, taking the experience

of white men as the norm and measuring others against this norm.

This invariably causes the “othering” of female (especially black

female) lawyers53 because their interests or sheer appearance lies

outside the hegemonic norm. An institutional culture is the set of

prejudices, beliefs, informal practices, and often unspoken values

that reflect the worldview and assumptions of the culturally and

economically dominant group in that institution.......

b) Sexist (and racist) perceptions and practices

We live in a society steeped in racism and sexism. It would therefore be

more than surprising if racial and gender prejudice did not also

permeate the legal profession and those who make use of the services

of members of the legal profession. The CALS study noted that

respondents mentioned several instances in which they encountered

racial and gender privilege in their work. Several examples of these

biases (often unknown to the person expressing it) are mentioned in the

report, including: (i) senior counsel and clients preferring and listening to

white males over black and/or female colleagues; (ii) instances of

preferring white junior counsel over black junior counsel continue to

occur or when a black counsel is requested, making sure that a senior

white counsel is briefed to ensure the buck stops with him;54 (iii) overly

protective senior partners of their female juniors, treating them more like

their daughter than a fellow professional and thus infantilising and

53It is important to note the intersecting nature of discrimination based on both gender and race experienced byblack female lawyers.54Ibid at 22



56

disrespecting them; or (iv) females bearing domestic responsibilities like

pouring tea at consultations.55

Apart from these examples, there are more general problems faced

by especially female lawyers in the profession. Some of these are of

an especially serious nature. (The respondents that took part in the

report did not include any members of the judiciary. However, as

members of the judiciary are appointed from among the members of

the legal profession it would be surprising that the attitudes of fellow

lawyers and clients encountered by women lawyers in the profession

did not also exist in the judiciary.)......

c) Opportunities for exposure to different types of work

The skills required to practice law is about more than book

knowledge. Lawyers gain skills and knowledge through their active

involvement in cases dealing with different aspects of the law.

Judges gain skills and knowledge that allow them to be appointed to

higher courts by being involved in increasingly complex cases.......

d) Briefing patterns

Young advocates trying to establish themselves and trying to get a

wide array of work that would not only allow them to survive

financially at the Bar but also to thrive and progress in the profession,

need to find champions in the attorneys profession (or among state

law advisors) who will brief them. For young women advocates, it can

be particularly difficult to “break in” to the profession and to get the

briefs needed to survive and thrive. This is so because there is an

overwhelming tendency among attorneys (also attorneys working for

NGO’s and for the state) to brief advocates that look like they do in

terms of race and gender, have the same interests or take part in the

same kinds of social activities, go on holiday at the same kinds of

venues.56 .........

55Ibid at 22-23.



57

e) Lack of Training and Mentoring

The training and mentoring of young attorneys and advocates is a

difficult issue. If done badly, it can easily perpetuate the obnoxious

(and often racist or sexist) assumption that black and women lawyers

are inherently less capable than white male lawyers and are thus in

greater need of training and mentoring. All lawyers require training

and mentoring. Some lawyers might need more training and

mentoring, not so much because of any deficit on their side than

because the institutional culture within which they operate is not one

that reflects their life experiences or their cultural values. Some may

need more mentoring because of the many barriers placed in their

path to advancement due to their race or gender (as discussed

above)......

f) Lack of practical experience as acting judges

The criteria that the JSC says it uses during the interviewing and

selection process focus in part on the experience of a candidate

nominated for a position on the bench. In practice, candidates are

often questioned by JSC commissioners about whether they had

served as acting judges, how long they have served as acting judges

and what lessons and insights they gained from their experience as

acting judges. There is no formal process for the identification of

acting judges for appointment and many of the same barriers faced

by women in advancing in their careers as lawyers may limit the

number of females appointed as acting judges in the various divisions

of the High Court. Given the fact that only one of the heads of court

is a women, and given further that there is no formal policy that

guides heads of court when they identify candidates for

appointment as acting judges, it would be surprising if the institutional

culture within the judiciary, the tendency of individuals to select and

champion those who look like them, who mix in the same social

circles at the same types of events and who share their world view,

56CALS & Foundation for Human Rights Report “Transformation of the Legal Profession” (2014) at 23.



58

would not predispose at least some heads of court to appoint far

more male than female acting judges. Because there is no formal

process through which potential acting judges are identified by

heads of court, and because there is no formal policy requiring

acting appointments to take into account redress needs in terms of

race and gender, whether sufficient women are ever asked to act as

judges in various courts depends entirely on the initiative of individual

heads of court. Some heads of court may actively seek women

candidates for appointment while others may not.

It is further elaborated that investigation of the complaint by means

of a Public Investigation Hearing57 may overstep the independency

of the judiciary and result in an unyielding working environment

between the CGE and entities critical in seeking a solution to the

complaint at hand.

The issues that hamper the gender transformation of the judiciary are

deep-seated and systemic and it is unclear whether holding a formal

Public Hearing on the matter (with the resultant possibility of an

adversarial dynamic arising between the CGE and the bodies called

before it) will do much to get the various role players to reflect in a

self-critical and honest manner about these systemic problems, the

need to address them and possible avenues for addressing them58.

7. FINDINGS AND RECOMMENDATIONS It cannot be disputed that there is a slow pace of gender transformation in the

judiciary. The lack of gender transformation is not only applicable to permanent

posts but it is also reflected in the appointment of acting judges. The CGE found

that there are gaps in the information received and other reasons are not

adequately dealt with in the answers received by the CGE from the various role

players canvassed by it.

57 In terms of Section 12 of Act 39 of 1996 58 De Vos, P “Gender Transformation, what needs to be done”



59

In fact, the responses, disappointingly, are often not as reflective and as

detailed as one would have expected them to be. The information submitted

to the CGE shy away from the barriers, behaviour and unwritten rules of the

profession that impede talented individuals from progressing. These barriers,

which are often caused by rules, practices and attitudes about women that

are stereotypical and hurtful, occur throughout the lifespan of the legal career.

This is also supported by a 2005 Sunday Times article titled “Women Judges tell

of Struggle For Acceptance” wherein the author indicates that the experiences

of a few women judges reflect badly on the non-committal of the male judges

on non-sexism. In the said article a female judge recollected a non-collegial

treatment by her fellow male judges in the following statement:

“Normally, amongst the judges who will hear a case together, you talk

beforehand about the issues that you want to raise when the matter is argued

in court. In the first few years, they would not talk to me and even once we were

in court, on the bench, i would sit there like a spare wheel”59.

However, the stark reality is that without address of the institutional culture,

gender transformation at the highest echelons of the legal profession will not

be attained. In order to overcome such systematic concerns, debate and

active participation is required. The CGE’s investigation process has yielded key

insight into the complaint and findings on the hindrances to gender paucity on

the bench, including -

1. Lack of certainty of the JSC procedure and criteria.

2. Lack of criteria / process in selection of Acting Judges60 .

3. Inaccessibility of venues utilised by the JSC.

4. Lack of female leadership at institutions such as LSSA.

5. Patriarchy and sexism which continue to persist requires women to prove

themselves in this male dominated profession.

59 Rickard C, Women Judges tell of Struggle For Acceptance, Sunday Times, 10 April 2005, 60 wide net of discretion afforded to Judge Presidents – this is prior to the JSC’s updated response. The CGE hascalled for the list of criteria / process in securing Acting Judges.



60

6. The finger-pointing by key stakeholders as to who bears the ultimate

responsibility to ensure gender transformation within the judiciary.

7. The availability of women and/or their willingness to be available for the

appointment of certain judicial positions.

It is therefore recommended that:

A. The CGE in consultation with the Complainants and other key institutions

prepare a discussion document on the various factors that may hamper

the progression of women lawyers within the legal profession as a whole.

The said discussion paper will also include the observations and

recommendations as found by the CGE during its investigation process as

delineated here above. The aforementioned discussion paper will be

published for comment in order to aggravate an open discussion on the

subject matter.

B. There should be engagements between the parties (the CGE, Department

of Justice and Correctional services, Judicial Services Commission and

Portfolio committee on Justice and Correctional services and the

Presidency) to convene a National summit to actively engage key

stakeholders to discuss gender transformation in the Judiciary and come

up with practical resolutions and implementation plan on the matter.

Funding to be shared equally between parties.

C. The State attorney general should ensure that there is equal distribution of

briefs to both women and men with particular reference to black women

attorneys. Additionally, it is recommended that government and the state

owned enterprises (SOE’s) should insist in their instructions to the State

Attorney that their briefs should include women.

D. The private law firms must be engaged and encouraged to adopt policies

and practice which will ensure that there are equal distribution of briefs to

women with particular reference to black women attorneys and

advocates.



61

E. The Bar Council, in the Republic of South Africa must be engaged and

encouraged to adopt rules and/or practice which will ensure that the

women at the bar are briefed in matters involving senior counsel and/or

in matters where a senior counsel requires a second junior. In addition,

where the Bar Council is called upon to appoint an arbitrator, preference

must be given to women at the bar (with particular preference to black

women).

F. The Judge Presidents and/or the Deputy Judge Presidents of all the

divisions must be engaged and encouraged to approach and attract

women practitioners to act as Judges and be preferred to their male

counterparts in order to address the current imbalances.

G. The Judicial Service Commission must be engaged and encouraged to

adopt a policy and/or criteria which will ensure that women (with

particular preference to black women), to be appointed as full time

Judges in order to address the current imbalances.

8. CONCLUSION

The investigation report reaffirms that issues relating to gender transformation

in the judiciary are very broad and sensitive. There is no clear cut in resolving the

complaint before the CGE, it is axiomatic from the report that the appointment

process of Judicial officers involves a number of role players, this includes inter

alia law societies, academia, voluntary association that co-exists with statutory

bodies governing the legal profession, the legal profession, JSC and the

Department of Justice and Constitutional Development. Thus it will not be a

correct approach to have one institution to take and accept responsibility of

the paucity of women in the Judiciary.



62

Signed at on the day of 2016.

Ms Keketso Maema

Chief Executive Officer: Commission for Gender Equality

No.2 Kotze street

Women’s Jail, Eastwing

Constitution Hill

Braamfontein

Johannesburg

Tel: 011 403 7182

Fax: 011 4035609

Email: [email protected]

Constitution Hill 5th December



63

Annexure 1 Response from the Presidency of the Republic of South Africa

Annexure 2 Response from the Minister of Justice and Constitutional Development

Annexure 3 Response from the Judicial Service Commission

Annexure 4 Questionnaire to the Black Lawyers Association

Annexure 5 Questionnaire to the Law Society of South Africa

Annexure 6 Questionnaire to the South African Charter of the International Associate of Women Judges

Annexure 7 Questionnaire to the South African Judicial Education Institute

Annexure 8 Questionnaire to the National Association of Democratic Lawyers

Annexure 9 Questionnaire to the Judge Presidents of the High Courts and Appellant Division South Africa

Annexure 10 Judicial Service Commission, Procedure of Commission,Regulation Gazette No 24596

Annexure 11 Responses to the Draft Investigative Report

Justice and Correctional Services Republic of South Africa

Judicial Service Commission

Sonke Gender Justice and Democratic Governance and Rights Unit

Ad question 2

The South African Charter of the International Associate of Women Judges

The South African Charter of the International Associate of Women Judges

Presidents Report 2013/14: The South African Charter of the InternationalAssociate of Women Judges

Presidents Report 2015: The South African Charterof the International Associate of Women Judges



64

ANNEXURE 1

CGE ANNEX. 9-11:Layout 1 12/5/16 4:59 PM


65



66



67



68

ANNEXURE 2



69



70



71



72

ANNEXURE 3



73



74



75



76

ANNEXURE 4



77



78



79



80



81



82

ANNEXURE 5



83



84



85



86



87



88



89



90



91



92

ANNEXURE 6



93



94



95



96



97



98



99

ANNEXURE 7



100



101



102



103



104



105



106



107



108



109



110



111



112



113



114

ANNEXURE 8



115



116



117

ANNEXURE 9



118



119



120



121



122



123



124



125



126

ANNEXURE 10



127



128



129



130



131



132



133



134



135



136

ANNEXURE 11



137



138



139



140



141



142



143



144



145



146



147



148



149



150



151



152



153



154



155



156



157



158



159



160



161



162



163



164



165



166



167



168



169



170



171



172



173



174



175



176



177



178



179



180



181



182



183



184



185



186



187



188



189



190



191



192



193



194



195



196



197



198



199



200



201



202



203



204



205

NOTES:



206

NOTES:


JOHANNESBURG (HEAD OFFICE)2 Kotze Street, Women’s Jail, East WingConstitution Hill, Braamfontein 2017, South AfricaTel: +27 11 403 7182 Fax: +27 11 403 7188

EASTERN CAPE (EAST LONDON)33 Phillip Frame RoadWaverly ParkChilselhurstEast London, 5200Tel: +27 43 722 3489Fax: +27 43 722 3474

FREE STATE (BLOEMFONTEIN)49 Charlotte Maxeke Street, 2nd Floor,Fedsure Building,Bloemfontein 9300Tel: +27 51 430 9348Fax: +27 51 430 7372

GAUTENG (PRETORIA)267 Lillian Ngoyi Street,Preator ForumPretoria 0002Tel: +27 12 341 6090 Fax: +27 12 341 4689

KWAZULU-NATAL (DURBAN)40 Dr. A.B Xuma Road, Suite 313, Commercial City Durban 4001 Tel: +27 31 305 2105Fax: +27 31 307 7435

LIMPOPO (POLOKWANE)Cnr. Grobler & Schoeman Streets, 1st Floor, Library Gardens Square,Polokwane 0700Tel: +27 15 291 3070 Fax: +27 15 291 5797

MPUMALANGA (NELSPRUIT)32 Belle Street, Office 212-230, Nelspruit 1200Tel: +27 13 755 2428Fax: +27 13 755 2991

NORTHERN CAPE ( KIMBERLEY)143 Du Toitspan Road, Kimberley 8301Tel: +27 53 832 0477Fax: +27 53 832 1278

NORTH WEST (MAFIKENG)38 Molopo Road, Mafikeng 2745Tel: +27 18 381 1505 Fax: +27 18 381 1377

WESTERN CAPE (CAPE TOWN)132 Adderly Street 5th Floor, ABSA Building, Cape Town 8001Tel: +27 21 426 4080 Fax: +27 21 424 0549

TOLL FREE: 0800 007 [email protected] I www.cge.org.za

Egoli Forms (011) 474-4566


Lack of Gender Transformation in the Judiciary

Documents

Transcript of Lack of Gender Transformation in the Judiciary