Gain insight into some of the barriers that hinder gender transformation in the judiciary

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1 Introduction The Democratic Rights and Governance Unit (DRGU) of the University of Cape Town, together with Sonke Gender Justice (Sonke) hosted a series of legal sector meetings on gender transformation of the judiciary between 2013 and Five meetings were hosted: in the Western Cape (25 February 2013), Gauteng (9 November 2013), the Eastern Cape (29 March 2014), KwaZulu-Natal (6 December 2014) and Free State (26 June 2015). The first of these meetings was held at the University of Cape Town, with subsequent ones held at the Wanderers Hotel, the University of KwaZulu-Natal (Durban), Nelson Mandela Metropolitan University and the University of the Free State respectively. The purpose and objectives of these meetings were to: Create discussion amongst legal professionals Gain insight into some of the barriers that hinder gender transformation in the judiciary Understand the reasons and impact of these barriers The meetings also aimed to obtain input from legal professionals on how to strengthen the existing strategies for change that have been employed to bring about more progressive gender transformation of the judiciary. About the Democratic Rights and Governance Unit (UCT) DGRU is an action oriented research unit based in the law faculty of the University of Cape Town. DGRU s two pillars of work are: Judicial Governance and Free Access to Law. One aspect of the judicial governance pillar focuses on the need to transform the judiciary in order to reflect more gender representation as mandated by the South African Constitution. DGRU uses in-depth research and monitoring of the appointments process to provide information that can be used by various stakeholders, including the Judicial Service Commission (JSC). 1

2 About Sonke Gender Justice Sonke is a non-profit organisation that works to create the change necessary to attain gender equality in South Africa. Sonke does so by calling for human rights to be protected and fulfilled by the state and citizens. Sonke s Policy Development and Advocacy Unit (PDA) specifically works to shape South African and international legal and policy decisions on gender equality. Through its gender transformation of the judiciary project, Sonke aims to strengthen South Africa s judiciary by engaging in advocacy to ensure that it is equitably comprised of female judges and staffed with judges who uphold and advance the rights to human dignity, gender equality and freedom as espoused in the Constitution. The Importance of Legal Sector Meetings on Gender Transformation of the Judiciary Extensive research undertaken by DGRU has revealed that the paucity of female judges in the country is the symptom of a deeper underlying problem. Specifically, that various obstacles exist for women in the different legal pools where candidates are drawn from, including magistrates, attorneys, advocates and academics. The SA chapter of the International Association of Women Judges (IAWJ) has been an instrumental partner in this regard. These forums provide insight into the peculiar challenges candidates in these pools face, most of which are not debated publicly, and help to expose the obstacles. We desire to see a judiciary that broadly reflects the racial and gender composition of South Africa as per section 174(2) of the South African Constitution of We acknowledge that transformation goes beyond race, gender, class and status and is a complex endeavor requiring a shift in attitudes and adjudication. The benefits of a truly reflective judiciary include amongst others, a plurality of perspectives that would result in an improved quality of justice. 2

3 Meeting Outcomes: Identification of the Challenges that Impede the Appointment of Women to the Bench Several obstacles that impede women s appointment to the bench were identified and discussed at the legal sector meetings. While some identified obstacles were peculiar to specific parts of the country, there are five thematic areas of challenges that are recurrent: 1 Criteria for the Appointment of Acting Judges There is an absence of publicly known criteria for the appointment of acting judges. Different provincial divisions use different practices in appointing acting judges. Judge Presidents of the various provincial divisions exercise their discretion on who to appoint in the absence of a guideline or policy. Selections or acting appointments are generally closed processes that lead to acting appointments of candidates who are known to the individuals making the decisions about who to appoint. This results in many interested or suitable candidates not being appointed on an acting basis. Ultimately, interested and suitable candidates who have not acted are unlikely to progress to the bench as acting experience has, in practice, become a requirement for permanent appointment. Similarly, it appears that acting appointments are also an area of contention in the magistracy for a different reason. A government prohibition on acting appointments exceeding two years at any given time, could represent a significant loss of competent legal professionals who have potential to be in judicial office.... The Chief Justice was asked what the criteria was for acting appointments. The Chief Justice s response had been that there aren t really a set of criteria, it is left to the Judge Presidents. And so,... the JP in the Western Cape [was asked] what criteria is applied. The response was that criteria aren t really an aspect that comes up. Magistrate of the Bisho Magistrates Court, Eastern Cape Legal Sector Meeting, 29 March

4 2 Discriminatory Perceptions of Women s Abilities Merit has been pitted against transformation, creating the impression that trusting women attorneys and advocates with valued work or trusting women magistrates with complex cases results in lower quality work in the case of attorneys and advocates and lower quality judgments on the part of women magistrates. These perceptions have resulted in the unequal distribution of work to the detriment of women as set out in point 3 below. It was further reported that perceptions of women s roles in society (particularly in relation to women s roles in the family and care-giving) has resulted in the exclusion of women from gaining experience and exposure to certain areas of work that will make them more suitable for appointment. Women attorneys and advocates expressed the view that they are deemed to be more suitable for what is considered to be soft law such as divorce and the administration of estates etc. Women attorneys and advocates indicated that the very structure of the legal profession disadvantages women from progressing in the profession when they choose to have children and temporarily put their careers on hold. This is particularly due to the long hours that advocates and attorneys are required to work and the inflexibility of the attorneys profession to allow for alternative working hours to take into account family responsibilities. Due to these socially accepted gender roles assigned to women in the family, men are assumed and perceived to play a lesser role in terms of children s day-to-day care needs and are thus considered more suitable for practice. Female students very often outshine their male counterparts. Increasingly, women are winning most competitions and they are coming out with the top grades. But at law faculty level, there is gender stereotyping... We need to be careful about equating women candidates with incompetency... Academic, Eastern Cape Legal Sector Meeting, 29 March

5 3 Unequal Distribution of Work Meeting participants reported on the unequal distribution of work between women and men. In the advocates profession, women advocates often don t receive briefs from attorneys and colleagues at the Bar in areas of the law which are considered more valuable in legal practice such as commercial, corporate and banking work etc. The unequal distribution of briefs has resulted in women not gaining exposure and experience in areas of work that would equip them with a broad set of legal skills that make them suitable for appointment in future. Similarly, women attorneys reported not being given or referred cases in the areas of law considered to be more valuable. This has also resulted in limited opportunities for attorneys to gain experience and exposure to cases that would make them more suitable for appointment. Male counterparts still get briefed. There can be 10 new and equally competent men and women but male juniors are the juniors of choice especially in commercial spaces, e.g. banks. Judge of the KwaZulu-Natal High Court, KwaZulu-Natal Legal Sector Meeting, 6 December Women do not always get the same exposure as men. This systemic exclusion of women is of concern to us all. Advocate, Gauteng Legal Sector Meeting, 9 November

6 4 Women Exiting the Profession and a Lack of Mentorship Opportunities Women exit the profession more frequently then men at every level, specifically in the attorneys and advocates profession. This is partially linked to a lack of mentorship for women at the Bar and in law firms. It was reported that time and learning opportunities are focused more on male junior advocates and attorneys to the detriment of women. Ultimately, the more women that exit the profession, the smaller the pool of women candidates to appoint to the bench. In the Western Cape... out of 140 admissions of Attorneys and Advocates in the past few months, about 80% were women with only around 8% being African and 30 35% being Coloured or Indian. The 80% seem to disappear into thin air when it comes to practice and there was a need to dig deeper and find the causes of this. Judge of the Cape Town High Court, Western Cape Legal Sector Meeting, 25 February Lack of Support from Lawyers Associations Women attorneys indicated a lack of support from lawyers associations that are influential in the appointment process. Lawyers associations are reportedly not nominating as many women as they are men, when women who indicate an interest in being appointed to the bench. This is despite the great representation of women in organisations such as the National Association of Democratic Lawyers (NADEL) and the Black Lawyers Association (BLA). It seems that when push comes to shove, the professional organisations are not backing their female representation. Researcher, KwaZulu-Natal Legal Sector Meeting, 6 December

7 Improving Women s Representation in the Judiciary As a result of these discussions, the following needs were identified to help eliminate the obstacles identified and increase the numbers of women appointed to the bench: The development of fixed and public criteria for the appointment of acting judges to ensure consistency and equal opportunities in line with acting appointments. Gender sensitisation training for the legal profession to shift gender inequitable attitudes. Coupled with this, the development of guidelines to ensure fair briefing patterns at the Bar, equal distribution of work at law firms and flexibility of working hours to accommodate family responsibilities. The introduction of mandatory mentorship programmes for women attorneys, magistrates, academics and advocates with the view of preparing them for the bench, provided they have aspirations for judicial office. The increased identification and nomination of women from all pools, who indicate an interest in being appointed to the bench and who are ripe for appointment. We must not make the mistake of thinking that 50% women will lead to a transformed judiciary. The change needs to start early law loves patriarchy... Meeting Participant, Eastern Cape Legal Sector Meeting, May 2014 I will not be apologetic about making [equal representation] a priority of my time in office Free State Judge President, Free State Legal Sector Meeting, June

8 Reflections on Advocacy Strategies Employed The publication of information on calls for nominations and shortlisted candidates for judicial appointment in the media has proved to raise awareness and spark interest in the issues amongst citizens and legal professionals. Monitoring interview processes revealed recognition of DGRU and Sonke s opinion on these issues as articulated by members of the JSC during the interview process. This recognition became particularly clear after a series of media publications of Sonke and DGRU s comment and opinions on the issues. DGRU and Sonke lodged a complaint with the Commission for Gender Equality in 2013 about the under-representation of women in the judiciary. There was very little progress around this matter until the end of However, shortly after the complaint was lodged, we did see the appointment of several women to the bench, with respondents including the JSC and the Minister of Justice. The investigation by the Commission has since been finalised and we are now waiting for it to be tabled before parliament and the Minister of Justice. The legal sector meetings have facilitated the beginnings of the building of a network of women legal professionals and men who support women s progress in the profession and have assisted in the identification of women who are ripe for appointment to the bench. Looking ahead We envision having more meetings in other parts of the country that will provide further topical information that can be filtered into outcomes. We will continue to request that the Judiciary streamline appointment systems in each province and formalise acting appointment guidelines to be made publicly available. DGRU will identify areas for Sonke to further their advocacy objectives, and will use media and academic avenues to stress the importance of creating environments for women that are transparent, supportive and legitimate. 8