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Still too few women in judicial leadership positions, despite big strides in past 30 years

Still too few women in judicial leadership positions, despite big strides in past 30 years
Genevieve Maujean and Mbekezeli Benjamin
By Genevieve Maujean and Mbekezeli Benjamin
7 Aug 2024
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Justice Mandisa Maya’s ascendancy to the helm of the judiciary is an important milestone, coming as it does in the 101st year since women have been allowed to practise law in South Africa.

August is Women’s Month as the historic day of 9 August – when 20,000 women marched to the Union Buildings in 1956 demanding an end to the dreaded pass laws – falls in the month. It reminds us to take stock of South Africa’s enormous strides in transforming its judiciary to make it more diverse, particularly in the representation of women.

There could not be a starker difference between the judiciary of 1994 and that of 2024. Then, only two out of 156 judges were women. In 2024, 46% (113 of 248) of judges are women. In the lower courts, women magistrates make up 52% (866 of 1,652) of the magistrates across the country.

A more diverse judiciary is more legitimate, while its jurisprudence is enriched by wider perspectives on law and society. President Cyril Ramaphosa’s appointment of Justice Mandisa Maya as South Africa’s first woman chief justice further affirms women’s progress in the judiciary.

Despite these important strides in women’s advancement in the judiciary over the past 30 years, there are still too few women in leadership positions in the judiciary. This is partly a result of structural obstacles standing in women’s way, including juggling family versus career demands, sexism and sexual harassment, and women lawyers being sidelined for career opportunities, which weakens the talent pipeline feeding the judiciary.  

Lack of women in judicial leadership


When Justice Maya takes the reins as the chief justice of the Republic on 1 September 2024, she will be only the fifth woman to sit on the 15-member Heads of Court Forum. She will join Supreme Court of Appeal President Mahube Molemela, KwaZulu-Natal High Court Judge President Thoba Poyo-Dlwati, Land Court Judge President Zeenat Carelse, and Mpumalanga High Court Judge President Segopotje Mphahlele.

This means that only a third of the Heads of Court Forum will be made up of women. Although this is historically the highest number of women to be part of this forum, it still fails to be representative of women in the judiciary.

Established under section 8 of the Superior Courts Act and chaired by the chief justice, the Heads of Court Forum is a powerful body that makes crucial policy decisions in the judiciary.

The forum gives input on various issues such as judges’ salaries, the rollout of technology in the courts, and the review of the budget of the superior courts. Importantly, the forum gives input on judicial policy and issues affecting the judiciary.

It is vital that such an important policy-making body include the greatest diversity of perspectives to avoid blind spots in developing policies such as on sexual harassment and on acting judges, for example. We, therefore, need many more women in the Heads of Court Forum.

Women judges are much better represented in the second tier of judicial leadership. Maya is currently the deputy chief justice, and women hold five of the nine deputy judge president positions in the different provinces. However, much greater diversity is seen in the leadership of the lower courts, with half (four of eight) of all regional court president positions held by women, and two-thirds (10 of 15) of chief magistrates being women.

This means that both the Regional Court President’s Forum and the Chief Magistrates Forum reflect our population of lower court judicial officers, who are currently 52% (866 of 1,652) women. This is an enormous achievement, considering the structural obstacles women generally face in the legal profession.

Family demands on women judges


One of the structural obstacles facing women lawyers and judges is finding a balance between family and career demands. At several Judicial Service Commission (JSC) interviews, aspirant and current women judges have highlighted how society’s expectations that a woman will be the primary caregiver in the family sometimes clash with career advancement. The extreme demands on high court judges also make it difficult to be a present mother to young children, as one must work in the evenings, weekends and over holidays.

Until recently, women advocates would lose their seniority at the bar while they were on maternity leave. 

“When I fell pregnant, the judiciary did not know what to do with me, as there was no maternity leave policy,” Maya said at her initial interview for chief justice in February 2022. It is not clear if such a policy exists.  

Sexism and sexual harassment as obstacles for women


Other obstacles faced by women include sexism, bullying and sexual harassment in the legal profession and the judiciary. Studies by the Institute for African Women in Law show that sexist practices, such as negative attitudes towards balancing childcare with judicial work, hindered women judges’ advancement in the judiciary and rise to judicial leadership.

Judicial expert Dr Tabeth Masengu highlights that sexist attitudes such as women being “too emotional” to be impartial, fair and firm are still pervasive in both the legal profession and the judiciary.  

In a series of JSC interviews starting with Maya’s 2017 interview for Supreme Court of Appeal president, several women judges spoke about the racist and sexist abuse they faced when they first served at that court. Justice Carole Nicholls, at her 2019 JSC interview, spoke of a “kind of toxic masculinity, mixed with racism” at the Supreme Court of Appeal.

Justice Leona Theron described an incident while she was an acting justice at the Supreme Court of Appeal where, during a hearing, she tried to follow up on a question posed by a senior judge and how the senior judge told counsel to only answer his questions. “It made me feel very small, like I had done something stupid or silly,” she said.

At the time, only six of 22 Supreme Court of Appeal justices were women. Several years later, things seem to be changing. Currently, 12 of 23 Supreme Court of Appeal justices are women. At the 2024 interviews Supreme Court of Appeal president Molemela asked all candidates about their experiences of collegiality at the court, and most spoke in almost glowing terms of how they felt welcomed and supported.

There are also problems of sexism in questions at the JSC interviews. At her interview, Justice Kate O’Regan – one of the first justices of the Constitutional Court – was asked what arrangements she would make for childcare if appointed, which was not asked of any of her male colleagues.

Ironically, Judge Nozuko Mjali was brought to tears in pleading for a transfer from Mthatha to East London to be closer to her children, whose father had recently been detained. The JSC denied the transfer.

In a 2019 JSC interview, then justice minister Michael Masutha asked Judge Fayeeza Kathree-Setiloane if, in the tenor of her voice and manner of speech, she comes across as “a little overbearing”. “I have been described as an assertive person, (but) this is the first time I’ve been called overbearing,” she responded. No such question has ever been asked of a man.

Sexual harassment is another form of abuse of power that affects women’s advancement in both the legal profession and the judiciary. This is confirmed in a landmark report titled “Us Too?” where the International Bar Association found that of the 126 South African lawyers surveyed, 43% of women versus 12% of men reported being sexually harassed. Further, 25% of the respondents said the sexual harassment contributed to them leaving their workplace. 

Although no specific data has been gathered on sexual harassment in the superior courts,  one in eight of 230 magistrates surveyed in a recent DGRU research report said that they or a magistrate they know had been sexually harassed “once or twice”. Several of the most high-profile cases of sexual harassment have involved men in judicial leadership, including a judge president, a regional court president, and a chief magistrate.

At the 2022 chief justice interviews, Chief Justice Raymond Zondo acknowledged the problem of sexual harassment and undertook to develop a policy to address this. The policy has yet to see the light of day.

Unfair work allocation strangling the talent pipeline


Historically skewed briefing patterns and the allocation of legal work is another obstacle faced by women lawyers (particularly black women), which weakens the talent pipeline leading to the judiciary. Ideally, only the most experienced lawyers at the top of their game should be considered for judicial appointment.

The only route to the top is a steady stream of complex legal work that tests your ability as a lawyer. However heavy users of legal services (including banks, mines, retailers and the government) have favoured white male lawyers.

The problem is even more pronounced in niche areas of commercial law like tax, competition, insurance and business rescue. While there are initiatives led by the State Attorney’s Office to allocate more legal work to women, it is still a drop in the ocean.  

According to Legal Practice Council records of April 2024, there are 33,245 attorneys in South Africa, of whom 45% (14,937) are women. This is up from 32.7% in 2010. There are 9,676 advocates, of which 30.5% (2,425) are women. Numerically, this is down from the 2,743 women advocates in September 2022.

While the cause of the decline is unclear, and the economic impact of Covid-19 might be a factor, it is clear that women are the ones leaving in greater numbers.

Despite these grim numbers, there are reasons to be hopeful.

More women taking judicial leadership


Several women have put themselves forward for judicial leadership positions in the upcoming JSC interviews of October 2024. Four of seven candidates for the Western Cape Division of the High Court judge president are women, and women feature in the shortlists for deputy judge president of the Land Court and the Mpumalanga and KwaZulu-Natal divisions of the High Court.

In addition, the JSC’s adoption of written criteria to guide its interviews – including the power of the chairperson to overrule inappropriate questions – has improved the quality of the JSC interviews and has stamped out some of the sexism. Nevertheless, the JSC still needs to adopt a written code of conduct regulating commissioners’ ethical standards and behaviour.

Progressive policies in the pipeline


The Heads of Court Forum is currently providing input on two vital policies that would bring transparency, accountability and fairness in the judiciary.

The first is a new policy on acting judges. Appointment as an acting judge is a vital, unwritten requirement to permanent judicial appointment. There are currently disparate practices across different courts, which are wide open to abuse through patronage and the potential exchange of sexual favours.

The new policy would provide uniform guidelines to create a fair, equitable system of acting appointments. The second policy – which Chief Justice Zondo assures us is on his desk – is a policy to stamp out sexual harassment in the judiciary. The JSC and the judiciary generally do not have a good track record on dealing with sexual harassment, therefore a clear, implementable policy would help a great deal.

Fair opportunities for women lawyers


A third important legal change – a binding legal sector B-BBEE code – is currently on the desk of the trade, industry and competition minister. Its aim is to break the historically skewed briefing patterns and allow women a fair opportunity to compete for complex, lucrative legal work in niche areas.

Beyond what is written in laws, there needs to be goodwill from large companies to give a greater share of their legal budget to women attorneys and advocates. If not just for getting quality legal services, it is important for developing the talent pipeline for the judiciary. After all, a strong rule of law is good for business.

This Women’s Month, it is vital to take stock of the progress women have made in the legal profession and in the judiciary. Justice Maya’s ascendancy to the helm of the judiciary is an important milestone, coming as it does in the 101st year since women have been allowed to practise law in South Africa.

It also fulfils the constitutional injunction that the judiciary “broadly reflect” South Africa’s population. This is vital to enhance public confidence and the legitimacy of the judiciary in the eyes of the people it serves.

Like the women of 1956, the present generation of women lawyers and judges are not resting on their laurels and are working hard to overcome the structural barriers to women’s advancement in the law.

We salute all the women in the judiciary who continue to inspire future generations through using their legal skills to fight for equality, justice and human rights. DM

Genevieve Maujean is a researcher and Mbekezeli Benjamin is an advocacy manager at Judges Matter, a project of the Democratic Governance and Rights Unit at the University of Cape Town’s Law Faculty. For more, visit www.judgesmatter.co.za and @WhyJudgesMatter

 

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