The recent appointment of Judge Raymond Zondo to the Constitutional Court, despite the fact that only two out of nine of its judges are women, raised a number of questions about gender balance in the nation's highest court.
The recent appointment of Judge Raymond Zondo to the Constitutional Court, despite the fact that only two out of nine of its judges are women, raised a number of questions about gender balance in the nation's highest court.
Gender transformation in the judiciary is not a clear-cut issue. Some point out the constitutional imperative that the judiciary should be broadly representative of South African society, including proportionate gender representation.
Others argue that the focus should not be on numbers but on ensuring that people committed to constitutional values are appointed.
While the gap between different races in the judiciary has improved, gender equity has not been adequately addressed, despite the fact that a large number of women enrol at law schools.
According to statistics from the Law Society of South Africa’s Legal Education and Development (Lead) division, in 2010 there were 3 873 first-year women students compared with the 3 118 first-year men students.
In August 67 out of 237 judges in South Africa were women, roughly 28%. Of the 26 judges of the Eastern Cape High Court, only eight were women. The Grahamstown branch of the High Court has five women judges out of a total of 16 and Bhisho has a single woman out of five judges.
Of the six judges in the Mthatha branch, only two are women.
Eastern Cape judge Belinda Hartle argues that women do not take advantage of the constitutional and legislative measures put in place to change the situation.
“We must make these tools work for us and exploit them favourably, whether we are claiming our [right]to be equally represented in formal and professional forums or institutions, or protecting our rights in the workplace not to be discriminated against when we need the space… to apply ourselves naturally to motherhood or other family responsibilities,” Hartle said during a recent lecture.
On the topic “Women in Law – who the heck do we think we are!” Hartle spoke at Rhodes University's law faculty. Her address was organised by the law faculty in collaboration with the office of the Chief Justice
However, some argue that family responsibilities expected of a woman while juggling a career are the main challenge. “I think that the broader social context, where women still bear the main burden for bringing up families, must be a factor,” said the University of Cape Town Democratic Governance and Rights Unit’s Chris Oxtoby in a telephone interview with Grocott's Mail.
Hartle shared this sentiment. “Today, the professional culture affirms a male orientation, from the tough personality to the performance indicators. These invariably bolster male predispositions – to the pace and length of working days at the expense of women with greater family responsibilities, right down to the obligatory recreational pursuits of drinks after work and golf,” Hartle said.
The other challenge is the perception that women are not tough enough or business-savvy enough. “Research has indicated that women are disadvantaged in their ability to generate new business because they possess fewer contacts than men, have less time to devote to client development, and are not part of the networks in which business is generated,” Hartle said.
“Black women specifically, but disadvantaged candidates from working class backgrounds generally face the further struggle of not having access to any social networks which they can leverage for job opportunities.”
This lack of confidence in women to engage in the same way as men affects the briefing patterns in the legal profession, which remains uneven and biased towards men. The South African legal system works on a briefing system, where advocates do not have direct contact with the public but have to be briefed by attorneys.
“It seems that briefing patterns and working practices in the legal profession are often seen as an obstacle for black and female practitioners getting the experience that would equip them for the judiciary,” Oxtoby added.
In a constitutional democracy, where the guiding values are enshrined in a constitution, should we be focusing on the numbers? “I have tried to pursue my own struggle as a legal professional outside of the gender context,” Hartle said. “In truth, I have often found it neither self-affirming nor professionally gratifying to stake out my gender as a precursor to acting out of a progressive orientation. I have always believed that my worth is rooted in my human capacity, not in my gender.”
Oxtoby argued that the issue should be more than a numbers game. “The constitution requires the judiciary to be 'broadly' representative, which on its ordinary meaning doesn't require numbers to exactly track the demographics of the population. But what targets we are in fact aiming for is something that I don't think has been fully debated and thought out.
