CGE recommends law on gender transformation in judiciary - The Presidency

Report also says that President should reject judicial appointment that don't address gender and racial equity imperatives

President Jacob Zuma receives report from the Commission for Gender Equality

22 September 2015

President Jacob Zuma has received a report on the transformation of the Judiciary from the Commission for Gender Equality (CGE).

The report is a result of an investigation conducted by the CGE after it received complaints from the Democratic Governance and Rights Unit at the University of Cape Town and the Sonke Gender Justice Network.

The two organisations lodged a complaint with the CGE pertaining to what they called gender discrimination in the appointment of judicial officers in South Africa. They stated that between 2009 and 2012 the Judicial Services Commission interviewed a total of 211 candidates for 110 positions in the judiciary and only 24 women were appointed.

They further maintained that a fewer number of women being appointed to judicial positions goes against statistics that show that there are more female law graduates than male ones, and more female admitted attorneys than male ones. Furthermore, at the time when the complaint was lodged there were 561 female practising advocates nationally from a pool of 2384.

The two organisations argued that the manner in which judicial appointments were conducted in South Africa violated the following legal and constitutional provisions: the right to equality as articulated in section 9 (3) of the Constitution, and the right not to be unfairly discriminated on the grounds of gender as articulated in section 8 of the promotion of Equality and Unfair Discrimination Act.

The Democratic Governance and Rights Unit and the Sonke Gender Justice Network cited the following parties as respondents: the President of the Republic of South Africa, the Minister of Justice and Constitutional Development, the Judicial Service Commission, and the Chief Justice. They asked the CGE to investigate, among other factors, why there were significantly more male judicial officers at the time than female ones and why the disparity continues to exist. They further asked the CGE to conduct an assessment of South Africa's compliance with the Convention on the Elimination of all forms of Discrimination against Women (CEDAW).

After its investigation the CGE found that there is a slow pace of gender transformation in the Judiciary, and the slow pace is applicable to both the permanent and acting judicial appointments. It identified the following critical barriers as lying behind the slow gender transformation:

(i) Lack of certainty of the Judicial Service Commission (JSC) procedure and criteria in how it makes appointments;
(ii) Lack of criteria/ clear process in the selection of acting judges;
(iii) Inaccessibility of venues selected by the JSC;
(iv) Lack of female leadership at institutions such as the Law Society of South Africa (LSSA);
(v) Patriarchy and sexism which continue to persist require women to prove themselves in the male dominated legal profession;
(vi) The finger-pointing by key stakeholders as to who bears the ultimate responsibility to ensure gender transformation in the judiciary; and
(vii) The unavailability of women and/or their willingness to be available for appointment to certain judicial positions.

In their report, the Commission has made the following recommendations:

(i) The JSC, in partnership and consultation with the Department of Justice and Correctional Services, the CGE and the Portfolio Committee on Justice and Correctional Services should jointly convene a national symposium or summit to engage key stakeholders on gender transformation in the judiciary;
(ii) Different bars and law societies should develop gender equality codes that will ensure gender equality prevails in all the activities of their organisations;
(iii) The Department of Justice and Correctional Services should draft a law that will deal with gender transformation in the judiciary;
(iv) In compliance with the Constitution, the President of the Republic should reject recommendations for judicial appointments that do not address gender and racial equity
imperatives that are enshrined in the Constitution;
(v) That the private sector and the state should ensure that they give legal work to both women and men with particular reference to black female lawyers.

President Zuma has noted the recommendations of the CGE report and thanked the Commission for its extensive investigation. The report will be processed by the relevant government departments.

Statement issued by Bongani Majola, The Presidency, September 22 2015