Tabeth Masengu & Katy Hindle
The October 2014 round of Judicial Service Commission (JSC) interviews had been greatly anticipated, particularly because of the composition of the new JSC. The appointment of Julius Malema, leader of the Economic Freedom Fighters (EFF) was received with great surprise and bemusement in some quarters. To add to that were the National Council of Provinces (NCOP) chairperson Thandi Modise and the chair of the Justice and Correctional Services portfolio committee, Mathole Motshekga neither of whom have much love for Malema.
The media were anticipating a dramatic showdown, perhaps a war of words, knowing the history between Malema and the others. Nothing was said about how Malema might add value to the process, especially as the ANC opted not to appoint any members from opposition parties as National Assembly or NCOP representatives. The oppositional rebuff by the ANC was viewed by opposition parties as leaving the JSC vulnerable to political manoeuvring. Thus for those who have been following the JSC interviews, there was a fear that the drama of new characters might obstruct the engagement of important issues not connected to executive deference: did the candidate have a proper understanding of the transformative nature of our Constitution; was their jurisprudential track record worthy; what was their attitude towards gender-based violence and poor illiterate parties? Last but not least, the issue of gender transformation of the bench. How did candidates feel about it, what had they personally done to encourage transformation and what did they believe was needed to assist in getting more women on the bench? These are all important questions that could have easily been lost in the political antagonism the media was hoping for.
Hence, we were pleasantly surprised that the introduction of these new commissioners brought a much desired interrogation of issues that women face. Prior to May 2012, the main focus had been on racial transformation of the bench; thus questions from commissioners rarely touched on challenges that women face in their bid for judicial aspiration. A concerted campaign by the Democratic Governance and Rights Unit (DGRU) of UCT, Sonke Gender Justice and other partners began putting gender transformation on the agenda by, among other things, lodging a complaint with the Commission for Gender Equality in October 2012. This and other initiatives made the JSC sit up and take notice, and soon we observed an increase in the number of questions specifically regarding women and their challenges. The quality, however, sometimes left us wanting. One commissioner in October 2013 said “some people would want to believe that the JSC and the Chief Justice are not serious about transforming the bench. How can we find suitably qualified women?” Another asked whether women had organised themselves as an effective force? This line of questioning left the feeling that some of the JSC commissioners believed that women needed to chart their own course and break down their inhibitions so as to facilitate their appointment.
That style of reasoning lacks an appreciation of the gendered nature of the legal profession and the judiciary, the “old boys clubs” that existed in both and the fact that women were not being given acting appointments at the rate that their male counterparts were. While each interview session saw quizzing of female applicants on the challenges they face and what needs to be done to assist them, the feeling was that a lot of it was just for the record. In the past three years, there had not been an intense critical interrogation of the issues that women face despite the fact that the JSC had five permanent female members, among them Deputy Minister of Home Affairs Fatima Chohan, who is a qualified lawyer herself. The two female ANC representatives from the NCOP who served on the last JSC hardly spoke, and one of them, Ms Mabe, found herself on the end of media comments stating that the only time she spoke was to ask for yoghurt from the hotel staff. Women continue to be outnumbered on the JSC, but at the least, we expected to see the few women on the JSC asking questions from a vantage point that the males might not have. So for these reasons, we waited and wondered if the JSC would continue on this path, partly relieved that at least the number of questions was increasing, partly frustrated that the quality was lacking. And then Thandi Modise and ANC MP Thoko Didiza arrived! Between the two of them and cameo appearances from Malema, Narend Singh of the IFP and Motshegka, they gave us reason to be quietly optimistic and provided a much needed spark to what had become a mundane topic of questioning.
Modise impressed from as early as the first interview when she asked Judge Connie Mocumie how she dealt with men who had tried to undermine her. It was the first time we had heard a commissioner bluntly pose such a weighted question. It was common knowledge that Judges Rampai and Moloi, who were also being interviewed, were both senior in age and Rampai senior on the bench to the female applicants. It was also common knowledge that Judge Rampai had felt greatly aggrieved when former Judge President (JP) Musi brought in a judge from out of province to act as Acting Judge President in late 2013. What everybody sensed but nobody dared verbalise is the fact that there was an implied assumption that by virtue of age and experience (and subtly gender), the men were perceived as the deserved candidates – either by themselves or others. For this reason, Thandi Modise’s question was perhaps a forewarning that life as a woman judge in leadership would not be easy.
One of the most powerful moments of Modise’s debut was revealed in the last interview of the day for the Free State Judge-President (JP) position. Judge Rampai, in response to a question about whether the female applicants would be able to lead him as a JP, said that the position of JP needed seasoned and chiselled people and that the women being interviewed did not meet that grade. Modise rebutted: “You made a statement about how we needed chiselled women but then you said there are few. You remind me of the 1970s when the apartheid era viewed blacks as not being trained.” She went on to state that if there was no deliberate action from the JSC, it would mean waiting another 10 years for these “chiselled” women. She found that very problematic. Judge Rampai had no response, and how could he, because in that statement he had revealed that the very attitudes that pervaded racial discrimination haunt our country when it comes to women. He reminded us that it’s one thing to say you support women, but it’s quite another when faced with the reality that the women you “support” may threaten what you desire.
Then that the gloves come off. Modise’s response showed her understanding of the omnipresent attitudes towards women that lurk in all corners, including among our judges. Her response also touched on a key aspect of what the DGRU and Sonke have been emphasising since 2012 – the need for deliberate action. Not just from the JSC, but from all concerned stakeholders if issues of gender transformation are really going to be tackled.
Modise was widely reported to have shown little sympathy during the interview of Judge Nozuko Mjali when she referred to the traumatised nine-year-old child of Mjali as a spoilt brat. Mjali, already a judge at the Mthahta branch of the Eastern Cape High Court, sought a transfer to the Bisho court. Modise’s comment was reported out of context as her reference to the child being spoilt in fact referred to Mjali’s earlier statement that her child wanted to go to a particular school in East London and nowhere else. At the time of Modise’s statement, Mjali had not yet informed the commission that the reason for her child’s trauma was her father’s arrest and that the child had received counselling. In fact Modise thereafter followed up her statement by asking whether there was a support system in place for judges to assist through times like the one in question. The response was that there is none and this was one of the many lessons this interview taught us. Expecting those who dispense justice to serve the public efficiently and continuously without providing those very justice dispensers with support systems to help them cope is not only frightening, but damaging in the long term. Mjali’s request for a transfer was later denied by the JSC as they opted to leave the Bisho Court vacancy open.
Thoko Didiza taught us that it is important for candidates to be able to provide more than just lip service when it comes to issues of gender transformation. Her experience in women’s rights is demonstrated by the types of questions that she asked. She asked Judge Rampai whether he would consider making gender mainstreaming part of the curriculum if appointed and how he would succumb to leadership by somebody junior to him. She quizzed Judge Molemela about the steps she would take in addressing gender imbalances if she became the Judge President and how she would work with her male colleagues if she were appointed. Didiza also asked candidates what they had done to assist and mentor other women from their communities, thus revealing her desire to see candidates who were giving back to their communities and encouraging women to pursue professional careers. It was an acknowledgment that in a country that only had one female judge twenty years ago, the presence of more women on the bench is symbolic for many reasons and women in the legal profession should continue to encourage others. So why is all this relevant?
It’s relevant because it indicates a willingness by some commissioners to interrogate gender on a deeper level. Asking substantive questions about gender equality, gender-based violence, sexual offences and domestic violence speaks to the suitability of candidates to uphold South Africa’s Constitutional values and their commitment to gender equality and non-discrimination on the grounds of gender, sex, sexual orientation, pregnancy, marital status or any of the other grounds listed in section 9(2) of the Constitution. In other words, asking these types of questions is the only way to ensure that our judiciary is staffed with judges that uphold and advance the constitutional right to gender quality.
All this is not to say that the numbers don’t matter. It’s of course necessary and constitutionally mandated for the judiciary broadly to reflect the racial and gender composition of our country. But a slavish adherence to bean counting could have a corrosive effect on our project of transformative constitutionalism. The judgement in the case President of South Africa and Another v Hugo might help to illustrate this point. The case concerned a Presidential pardon which granted release to prisoners who were mothers of young children. Hugo, a single father with a young child, challenged the pardon on the grounds that it unfairly discriminated against him on the basis of his sex and gender. The majority of the court held that although the action of the President was discriminatory, it did not amount to unfair discrimination. Johan Kriegler wrote a dissenting judgment. Kriegler is a white man. In finding that it was unfair for the President to have discriminated against parents on the basis of their gender, he had this to say:
“In my view the notion relied upon by the President, namely that women are to be regarded as the primary care givers of young children, is a root cause of women’s inequality in our society. It is both a result and a cause of prejudice; a societal attitude which relegates women to a subservient, occupationally inferior yet unceasingly onerous role. It is a relic and a feature of the patriarchy which the Constitution so vehemently condemns.”
The point here is that both male and female judges have an important role to play in the project of gender transformation in our society. And rightly so, because the achievement of gender equality implies change for both men and women and requires a redefinition of the rights and responsibilities of women and men in all spheres of life, including the family, workplace and in society at large. And so too do male and female aspirant judges and male and female commissioners of the JSC have an important role to play in gender transformation. South Africa might be legislatively equal when it comes to the rights of women, but it is still substantively unequal and our courts’ jurisprudence needs to recognise and reflect that. Because of the unrelenting persistence of patriarchy, too many women in South Africa (and statistically we make up the majority) feel unsafe and are not able to realise the socioeconomic and other rights guaranteed to them by our Constitution. To change this, we need progressive and feminist judges who are willing to chart “rights-realising” jurisprudence for women. An example of this “rights-realising” jurisprudence is Bhe and Others v Khayelitsha Magistrate and Others. The case concerned a challenge to the rule of male primogeniture (inheritance through the male line) as it applied in the African customary law of succession. Former chief justice of the Constitutional Court, Pius Langa, held that the rule discriminated against women and entrenched past patterns of disadvantage. He also said that it was exacerbated by old notions of patriarchy and ultimately he held that it was incompatible with the right to equality under our constitutional order.
This brings us back to the decision by the JSC not to transfer Judge Mjali to the Bisho High Court. Judge Mjali had been commuting with a toddler and nanny from East London (where her husband and other children resided) to her seat at the Mthatha High Court, until her husband was arrested and charged with rape. Thus she sought a transfer to Bisho, so she would be nearer to all three children (the nine-year-old referred to earlier and a matric student). Mjali explained that the trauma experienced by her children brought on by the arrest of their father required that she be closer to them to provide emotional and other forms of support. After a lengthy and heated debate, the JSC ultimately decided that Mjali had not shown good cause as to why she should be transferred. While we do not know what other considerations the JSC had to weigh in deliberations, what we do know is this: True transformation in the judiciary requires that the JSC take a good hard look at evidence from the real world: the reality is that women continue to take on more household responsibility than men and often need to make compromises that their male counterparts are far less likely to have to make. If the JSC are serious about equal opportunities for women, they need to reconsider the disproportionate burden that women take on in the home. The solution might be putting in place support structures that accommodate women judges who are mothers, thereby encouraging their progression in the judiciary. It might lie in encouraging male “absent father” judges to embrace equal parenting and be more engaged in their children’s lives. Whatever it is, the important first step is for the JSC as an institution to take notice of the everyday sexism and everyday oppression of women that soaks into all corners of our lives and, if unchecked, will seep into the corners of our country’s courtrooms.
The JSC’s decision not to transfer Judge Mjali was disappointing and some of the questions about gender asked in this last round may have missed the mark. The important thing is that this JSC showed a willingness to interrogate gender. I wonder when last – or ever – someone has had reason to come before the JSC and talk frankly about breastfeeding and where their kids go to school? These issues speak to the very human face of judges, who are mothers and fathers and daughters and sons.
In a way it’s promising that this JSC is willing to grapple with these issues and, this discussion might be a marker of where we are right now. Our patriarchal tendency is to think of male characteristics and attributes as the norm and those of women as a variation to the norm. Do we still think it the norm for judges not to have household responsibilities or parenting obligations? Why don’t we ask the male candidates whether they have children and how appointment might affect them? And when women are appointed judges, are they appointed on the dangerous assumption that they don’t have, or that they will relinquish, their household responsibilities and parenting obligations? These questions matter because women are increasingly being considered and recommended for judicial appointment: in the last round of interviews, all the candidates who were recommended by the JSC for appointment to the bench were women. This is certainly something to be celebrated, but if women are expected to act like men once appointed, it would be a hollow victory, for it would indicate an indifference to a persistent prejudice against women.
We’re weary of becoming too optimistic after just one sitting. It’s also possible that as it was their “first time” out, some of the commissioners may have been keen to pay lip service to what they think are important issues. After a while, the enthusiasm might die down or politics may require that the JSC “tone it down”. However, despite the bad and sad moments of this round of interviews, there’s still room to be positive. While we observed the proceedings, among us there was a nodding of heads, a murmuring agreement, a feeling that this is what we had been waiting for. Only time will tell if it has been much ado about nothing. But if their first sitting is anything to go by, this new JSC might just have the right men/women for the job.
Main Pic: Judge Mojalefa Rampai, one of the candidates for the position of Judge President of the Free State High Court, was taken to task by National Council of Provinces (NCOP) chairperson Thandi Modise for stating that his fellow female candidates did not meet the grade: By David Harrison
Tabeth Masengu is an admitted Attorney of the High Court of South Africa and is currently a Research officer at the Democratic Governance and Rights Unit (DGRU) based at the University of Cape Town . She holds an LLB from Rhodes University (Cum Laude) and an LLM in Human Rights (Cum Laude) from the London School of Economics and Political Science. She has spoken at various fora on Gender transformation in the Judiciary and written on the subject matter in various fora. She has also written Women Rights and Constitutional processes and Gender dynamics of Zambia’s Constitutional processes, is the Associate Editor on a book currently in publication process on Women and Constitutions in Africa. She is also the Southern African regional correspondent of the Oxford Human Rights Hub and the Secretary of the Women and Constitution Working group of the African Network of Constitutional Lawyers.
Katy Hindle works at Sonke Gender Justice in the policy development and advocacy unit. Her interests lie in gender, feminism, constitutional law and social justice.