CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 1 LACK OF GENDER TRANSFORMATION IN THE JUDICIARY INVESTIGATIVE REPORT

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1 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 1 LACK OF GENDER TRANSFORMATION IN THE JUDICIARY INVESTIGATIVE REPORT 2016

2 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 2

3 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 3 Complaint Ref No: WC/DRGU & Sonke/2012/KL Democratic Governance and Rights Unit and Sonke Gender Justice Network Complainants And The Presidency The Minister of the Department of Justice and Constitutional Development Judicial Service Commission Chief Justice of the Constitutional Court Respondents 1 There s a lot of sexism. If you are a woman you have to go on a course to become a judge, but a man can simply serve as an acting judge and apply for the job. Men have thought of this [course] as a marvellous thing. They think this is helping women become judges. They are incredibly proud of their expensive courses 2. Judge Satchwell 1 As per the lodged complaint 2 Omphitlhetse, Mooki, The Star Newspaper, August 2012: Women can do it too 3

4 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 4 CONTENTS PAGES 1. Introduction 6 2. Parties 7 3. Nature and Background to the Complaint Legal Framework Gender Transformation in the Judiciary the current status quo (institutional analysis) Investigation / Steps taken Findings and recommendations Conclusion Annexures A1 The Presidency of the Republic of South Africa 64 A2 Minister of Justice and Constitutional Development 68 A3 Judicial Service Commission 72 A4 Black Lawyers Association 76 4

5 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 5 A5 The Law Society of South Africa 82 A6 South African Chapter of the International Associate of Women Judges 92 A7 South African Judicial Education Institute 99 A8 National Association of Democratic Lawyers 114 A9 Judge Presidents of the High Courts and Appellant Division South Africa 117 A10 Judicial Service Commission, Procedure of Commission, Regulation Gazette No A 11 Responses to the Draft Investigative Report 143 5

6 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 6 1. INTRODUCTION 1.1. The Commission for Gender Equality (hereinafter referred to as the CGE ) is an institution established in terms of Section 181 of the Constitution of the Republic of South Africa 108 of 1996 (hereinafter referred to as the Constitution ) In terms of section 187 (1) of the Constitution, the CGE is specifically mandated to: 12.1 Promote respect for gender equality and the protection, development and attainment of gender equality; 12.2 Monitor, investigate, research, educate, lobby, advise and report on issues concerning gender equality; 12.3 Assess the observance of gender equality. 1.3 The Commission for Gender Equality Act 39 of 1996, as amended (hereinafter referred to as the CGE Act ), further supplements the powers of the CGE to fulfil its constitutional mandate. 1.4 The investigative report shall focus on the formal complaint lodged with the CGE regarding the lack of gender transformation in the judiciary. The report will avoid being voluminous and overwhelming in nature and shall ensure brevity in order to focus on the salient findings and recommendations. 1.5 From the onset, it must be recorded that the slow pace of gender transformation is a broad and highly intricate issue requiring a holistic approach. The slow pace of gender transformation of the judiciary cannot be evaluated in isolation. The discussion must be placed within the larger South African context in which transformation (in its broadest sense) remains a difficult and contested issue. Considering the causes of the slow pace of gender transformation of the bench and reflecting on possible ways to speed up such transformation requires a holistic approach. 6

7 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 7 It must take cognisance of the fact that members of the judiciary are appointed from among the members of the practicing legal profession and hence that the culture prevalent within the profession, the attitudes of its members about gender issues (amongst other things), the status of women within the profession, and the practices both within the profession and within the judiciary (including practices surrounding the appointment of acting judges and possible sexism within the judiciary) will affect the pace and the quality of gender transformation in the judiciary THE PARTIES 2.1 The Complainants: Democratic Governance and Rights Unit (hereinafter referred herein as DGRU ), herein represented by Ms Tabeth Masengu. Upon examination of the official website of the abovementioned Complainant, the following is noted as an overview of the unit: - The DGRU is an applied research unit within the Public Law Department at the University of Cape Town. It was established very recently in order for the faculty, and UCT more generally, to have a greater influence on democracy and human rights in South Africa and the region. The DGRU is primarily concerned with the relationship between rights and governance. Its work focuses on the intersection between public administration, with the challenge of public accountability, on the one hand, and the realization of constitutionally-enshrined human rights on the other. This is distinctive from other institutes or University centres 4 3 De Vos, P Gender Transformation, what needs to be done - brief prepared for the CGE on its instruction. It is highlighted that Prof De Vos noted his affiliation to DGRU I wish to disclose that I am on the Advisory Board of the DGRU. I am not involved in the operational decisions of the DGRU and the Advisory Board played no part in the decision to lodge the complaint. I have also not discussed the matter with any members of the DGRU

8 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 8 It is further noted that they list as one of their focus areas, Judicial Governance: - DGRU recognises judicial governance as a special focus because of its central role in adjudicating and mediating uncertainties in constitutional governance. We have an interest in ensuring that the judicial branch of government is strengthened, is independent, and has integrity. The DGRU s primary focus is on the relationship between governance and human rights, and has established itself as one of South Africa s leading research centres in the area of judicial governance, conducting research on the judicial appointments process, judicial ethics and on the future institutional modality of the judicial branch of government. The DGRU s focus on judicial governance has led to it making available to the Judicial Service Commission (JSC) research reports on candidates for judicial appointment, as well as DGRU researchers attending, monitoring and commenting on the interviews of candidates for judicial appointment. Such reports have been complied for the September 2009, October 2010 and April 2011 interviews. The intention of these reports is to assist the JSC by providing an objective insight into the judicial records of the shortlisted candidates. The reports are also intended to provide civil society and other interested stakeholders with an objective basis on which to assess candidates suitability for appointment to the bench Sonke Gender Justice Network (hereinafter referred to as SONKE ) herein represented by Ms Cherith Sanger. As per the above, when examining the Complainant s official website of the abovementioned Complainant, the following is noted as an 5 8

9 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 9 overview of the Network:- Founded in 2006, Sonke Gender Justice is a South African-based NGO that works across Africa to strengthen government, civil society and citizen capacity to support men and boys in taking action to promote gender equality, prevent domestic and sexual violence, and reduce the spread and impact of HIV and AIDS. Sonke has an expanding presence on the African continent and a growing international profile, through its involvement with the United Nations and a range of other international networks and affiliates 6 Like DGRU, SONKE notes as part of its scope of work is the Strengthening of the Judiciary:- Sonke is advocating for gender transformation in the judiciary. We believe that gender transformation in the judiciary involves the appointment of more women judges but also a commitment by all judges to the principles and values enshrined in our Constitution and, in particular, the principle of gender equality. To this end, we have successfully advocated for the particular appointment of appropriately qualified women to the bench. We have also engaged with the South African Judicial Education Institute to try understand what training judges receive in relation to gender issues and sexual offences and, together with the Democratic Governance and Rights Unit, we are also trying to understand what structural barriers impede women s progress in the legal professionæ The Respondents: The Complainants list the following as Respondents as per the lodged complaint: The President of the Republic of South Africa (hereinafter referred to as the Presidency ), his Excellency President

10 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 10 Jacob Zuma Minister of Justice and Correctional Services (hereinafter referred to as the Ministry ), Honourable Minister Masutha Judicial Service Commission (hereinafter referred to as the JSC ) Chief Justice Mogoeng Mogoeng (hereinafter referred to as the CJ ): Constitutional Court. 3. NATURE AND BACKGROUND OF COMPLAINT On the 12 th of October 2012, DGRU and SONKE lodged a complaint with the CGE 9. The complaint pertains to the gender discrimination in the appointment of judicial officers in South Africa. It has been submitted to the CGE that gender transformation in the judiciary has not progressed at a significant pace in consideration of section 174 of the Constitution which states that the appointment of judicial officers must reflect broadly the racial and gender composition. It has further been submitted that during the period of , the Judicial Services Commission interviewed a total of 211 candidates for 110 positions and only 24 women were appointed. At the time the complaint was lodged it was noted from the Law Society statistics of 2012 that there were more female law graduates than male, and more female admitted attorneys than male admitted attorneys. It was further noted that statistics from the General Bar Council showed that there were 561 female practising advocates nationally from a pool of As a result of the aforementioned it was submitted that the following legal and constitutional rights are violated: The right to equality as articulated in section 9(3) and (4) of the Constitution of South Africa. The unfair discrimination is based on gender. 8 At the time of receipt of the complaint, it was the Minister of Justice and Constitutional Development, Honourable Jeff Radebe. 9 As per the formal complaint form. 10

11 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 11 The right not to be unfairly discriminated on the grounds of gender as articulated in section 8(h) and (I) of the Promotion of Equality and Unfair Discrimination Act 4 of It has been submitted that this has occurred by denying access to opportunities for women and creating a systemic inequality of access to opportunities. It was further submitted that the following instruments, which South Africa is a signatory to, have also been violated: Article 2 of the Protocol to the African Charter on Human and People s Rights on the Rights of Women in Africa (Protocol on the Rights of Women). It has been submitted that there has been a failure to take corrective and positive action in the South African judiciary as discrimination against women exists. Article 9(2) of the Protocol on the Rights of Women. It has been submitted that there has been a failure to have an increased and effective representation and participation of women at all levels of decision-making, and in this particular, the judiciary. Article 7 (f) of the SADC Protocol and Gender and Development that requires that women to have equal representation on all courts. The Complainants noted that the complaint is lodged in the public interest 10 and sought the following relief / remedies: - 1. That the CGE constitute an appropriate investigation into what appears to be gender discrimination in the appointment of judicial officers. 2. That the CGE investigate why there are significantly more male judicial officers currently in office than female judicial officers and why this disparity continues to exist despite the content of section 174 (2). 3. That the CGE establishes a monitoring capability in respect of the 10 Affirms locus standi. Moreover, the CGE was approached as it is tasked by the Constitution with the duty to promote the respect for and the protection, development and attainment of gender equality. Further, the Commission has the power to monitor, research, lobby and report on issues concerning gender equality. The appointment of female judicial officers and the attainment of gender equality in judicial officers is thereof an issue that sits squarely at the heart of this constitutional obligation 11

12 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 12 appointments to the judiciary and to ensure that there is no gender discrimination and this monitoring should encompass both permanent and acting appointments. 4. That the CGE investigate whether steps have been taken to address the gender disparities in the judicial appointments process. 5. That the CGE conducts an assessment of South African s compliance with the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) and all other legal International obligations that South Africa has ratified and that are relevant to this complaint. This includes the African Protocol on Women s Rights and the SADC gender protocol. Once an assessment is done, we request that the CGE institutes a permanent monitoring of compliance with the said Convention and other international legal obligations, providing parliament and the public with regular reports. 6. The CGE investigate the status of the project on racial and gender transformation in the judiciary instituted by Rashida Manjoo, a former Commissioner of the CGE attached to the parliamentary portfolio during her tenure in That the CGE engages with the Judiciary, the Judicial Services Commission, the President, the Ministry of Justice and all other relevant stakeholders in order to identify barriers in the legal progression that impede the appointment of females to judicial positions. It is recorded that the CGE, in light of its financial limitations and jurisdictional parameters, has attended to the gist of the complaint and not every stipulation as delineated by the Complainants. The independency and impartiality of the CGE is re-emphasised and cannot be subjected to entities directives. 4. LEGAL FRAMEWORK 4.1. International Legal Framework Convention on the Elimination of All Forms of Discrimination against Women 12

13 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 13 South Africa ratified the Convention on the Elimination of All Forms of Discrimination against Women (hereinafter referred to as CEDAW ) in 1995 therefore placing an obligation upon the State to ensure the advancement and protection of women s rights under the Convention through legislation and enforcement of good policies, practices and programmes to support gender transformation. Article 7 of the aforementioned Convention directly provides for transformation within the judiciary: - Article 7: Political and Public Life State parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men. (a) (b) (c) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies; To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government; To participate in non-governmental organizations and associations concerned with the public and political life of the country. Further cognisance must be taken of the concluding observations of the CEDAW Committee s 48 th session held in Geneva, Switzerland in the response to South Africa s Periodic Country Report which covered the period of 1998 to Specific reference is made to concluding observation number 17, as detailed hereunder: - Access to Justice 17 (c) Provide systematic training on the application of legislation prohibiting discrimination in light of its obligations under the Convention and its Optional Protocol to judges, lawyers, labour inspectors, NGO s and employers. 13

14 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page Universal Declaration of Human Rights (UDHRC) (1948) Article 2 of the UDHRC states that: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status Vienna Declaration 1993 and South African National Action Plan for the Promotion and Protection of Human Rights. Article 8 highlights the importance of working towards the elimination of violence against women in public and private life, the elimination of all forms of sexual harassment, exploitation of, and trafficking in, women, the elimination of gender bias in the administration of justice, and the eradication of any conflicts which may arise between the rights of women and the harmful effects of certain traditional or customary practices, cultural prejudices and religious extremism The Beijing Platform for Action (BPA) The BPA requires governments, international communities and civil society, including non-governmental organisations and the private sector, to take strategic action to address 12 critical areas of concern. These areas include, but are not limited to, violence against women, the burden of poverty on women, and the inequality between men and women in the sharing of power and decision making at all levels Sustainable development goals: 2030 Agenda Goal 5 aims at achieving gender equality and empowers all women and girls. Its targets include ending all forms of discrimination and violence against women and girls, as well as eliminating harmful practices, and the recognition and value of unpaid care and domestic work. 14

15 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 15 Other targets stress the importance of ensuring women s full and effective participation and equal opportunities for leadership, as well as universal access to sexual and reproductive health and reproductive rights Regional instruments As cited by the Complainants, the following regional conventions also provide further positive obligations on the State to ensure gender paucity on the bench: Protocol to the African Charter on Human and People s Rights Article 2 - Elimination of Discrimination Against Women States Parties shall combat all forms of discrimination against women through appropriate legislative, institutional and other measures. In this regard they shall: a) include in their national constitutions and other legislative instruments, if not already done, the principle of equality between women and men and ensure its effective application; b) enact and effectively implement appropriate legislative or regulatory measures, including those prohibiting and curbing all forms of discrimination particularly those harmful practices which endanger the health and general well-being of women; c) integrate a gender perspective in their policy decisions, legislation, development plans, programmes and activities and in all other spheres of life; d) take corrective and positive action in those areas where discrimination against women in law and in fact continues to exist; 15

16 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 16 e) support the local, national, regional and continental initiatives directed at eradicating all forms of discrimination against women. 2. States Parties shall commit themselves to modify the social and cultural patterns of conduct of women and men through public education, information, education and communication strategies, with a view to achieving the elimination of harmful cultural and traditional practices and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes, or on stereotyped roles for women and men. Article 9 - Right to Participation in the Political and Decision-Making Process 2. State Parties shall ensure increased and effective representation and participation of women at all levels of decision-making Southern Africa Protocol and Gender and Development provides Article 7 (f) reads: that women have equitable representation on, and participation in, all courts including traditional courts, alternative dispute resolutions mechanism and local community courts 4.3 Domestic Legal Framework The Constitution of the Republic of South Africa 108 of 1996 In construing the rights enshrined in the Constitution, it is paramount to highlight a profound and most powerful, but yet humble statement, in the preamble of the Constitution. The preamble provides as follows:- 16

17 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 17 We, the people of South Africa, Recognise the injustices of our past; Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country; and Believe that South Africa belongs to all who live in it, united in our diversity. We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; Improve the quality of life of all citizens and free the potential of each person; and Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations. May God protect our people. Nkosi Sikelel iafrika. Morena boloka setjhaba sa heso. God seën Suid-Afrika. God bless South Africa. Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika. Equally so, the rights enshrined in the Constitution ought to be interpreted with section 2 of the Constitution which provides that:- This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. 17

18 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 18 Fundamentally, women are entitled not only to the citizenship of our country, but are entitled to the rights, privileges and benefits of citizenship. These sentiments are echoed in section 3(2)(a) and (b) which provides that:- All citizens are: (a) equally entitled to the rights, privileges and benefits of citizenship; and (b) equally subject to the duties and responsibilities of citizenship. In ensuring that women are afforded their rightful place in our society and in ensuring that their rights as enshrined in the Constitution are realised, it is important to give meaning to section 7 of the Constitution which recognises that the Bill of Rights is a cornerstone of democracy in South Africa, as it provides that:- (1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. (2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights. There is no doubt, as provided for in section 8 of the Constitution that the Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. The law, practice, policy and/or any criteria designed and implemented in the selection process of determining who must be appointed as an acting or permanent Judge must be done in conformity with the principles, spirit, values and purport enshrined in our Constitution and to give effect to the Bill of Rights. The right to equality is enshrined in the Constitution as per section 9: 18

19 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 19 Section 9: Equality 1. Everyone is equal before the law and has the right to equal protection and benefit of the law. 2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. 3. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. 4. * No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. 5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. In addition, the Promotion of Equality and Unfair Discrimination Act 4 of 2000 expands upon the above cited constitutional imperative by delineating the right not to be unfairly discriminated on the grounds of gender. Chapter 8 of the Constitution titled Courts and Administrative Justice sets out the procedure for the appointment of permanent and acting Judges. Moreover, it further provides for the establishment and composition of the Judicial Services Commission. 174: Appointment of judicial officers 1. Any appropriately qualified woman or man who is a fit and 19

20 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 20 proper person may be appointed as a judicial officer. Any person to be appointed to the Constitutional Court must also be a South African citizen. 2. The need for the judiciary to reflect broadly the racial and gender composition 11 of South Africa must be considered when judicial officers are appointed. 3. The President as head of the national executive, after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme Court of Appeal. 4. The other judges of the Constitutional Court are appointed by the President, as head of the national executive, after consulting the Chief Justice and the leaders of parties represented in the National Assembly, in accordance with the following procedure: a. The Judicial Service Commission must prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President. b. The President may make appointments from the list, and must advise the Judicial Service Commission, with reasons, if any of the nominees are unacceptable and any appointment remains to be made. c. The Judicial Service Commission must supplement the list with further nominees and the President must make the remaining appointments from the supplemented list. 11 Own emphasis added. 20

21 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page At all times, at least four members of the Constitutional Court must be persons who were judges at the time they were appointed to the Constitutional Court. 6. The President must appoint the judges of all other courts on the advice of the Judicial Service Commission Other judicial officers must be appointed in terms of an Act of Parliament which must ensure that the appointment, promotion, transfer or dismissal of, or disciplinary steps against, these judicial officers take place without favour or prejudice. 8. Before judicial officers begin to perform their functions, they must take an oath or affirm, in accordance with Schedule 2, that they will uphold and protect the Constitution. 175: Acting judges 1. The President may appoint a woman or a man to be an acting judge of the Constitutional Court if there is a vacancy or if a judge is absent. The appointment must be made on the recommendation of the Cabinet member responsible for the administration of justice acting with the concurrence of the Chief Justice. 2. The Cabinet member responsible for the administration of justice must appoint acting judges to other courts after consulting the senior judge of the court on which the acting judge will serve. 176: Terms of office and remuneration 1. A Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first, except where an Act of Parliament extends the term of office of a Constitutional Court judge. 12 Own emphasis added 21

22 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page Other judges hold office until they are discharged from active service in terms of an Act of Parliament. 3. The salaries, allowances and benefits of judges may not be reduced. 177: Removal 1. A judge may be removed from office only if a. the Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and b. the National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members. 2. The President must remove a judge from office upon adoption of a resolution calling for that judge to be removed. 3. the President, on the advice of the Judicial Service Commission, may suspend a judge who is the subject of a procedure in terms of subsection (1). 178: Judicial Service Commission 1. There is a Judicial Service Commission consisting of a. the Chief Justice, who presides at meetings of the Commission; b. the President of the Supreme Court of Appeal; c. one Judge President designated by the Judges President; d. the Cabinet member responsible for the administration of justice, or an alternate designated by that Cabinet member; 22

23 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 23 e. two practising advocates nominated from within the advocates profession to represent the profession as a whole, and appointed by the President; f. two practising attorneys nominated from within the attorneys profession to represent the profession as a whole, and appointed by the President; g. one teacher of law designated by teachers of law at South African universities; h. six persons designated by the National Assembly from among its members, at least three of whom must be members of opposition parties represented in the Assembly; i. four permanent delegates to the National Council of Provinces designated together by the Council with a supporting vote of at least six provinces; j. four persons designated by the President as head of the national executive, after consulting the leaders of all the parties in the National Assembly; and k. when considering matters relating to a specific High Court, the Judge President of that Court and the Premier of the province concerned, or an alternate designated by each of them. 2. If the number of persons nominated from within the advocates or attorneys profession in terms of subsection (1) (e) or (f) equals the number of vacancies to be filled, the President must appoint them. If the number of persons nominated exceeds the number of vacancies to be filled, the President, after consulting the relevant profession, must appoint sufficient of the nominees to fill the vacancies, taking into account the need to ensure that those appointed represent the profession as a whole. 23

24 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page Members of the Commission designated by the National Council of Provinces serve until they are replaced together, or until any vacancy occurs in their number. Other members who were designated or nominated to the Commission serve until they are replaced by those who designated or nominated them. 4. The Judicial Service Commission has the powers and functions assigned to it in the Constitution and national legislation. 5. The Judicial Service Commission may advise the national government on any matter relating to the judiciary or the administration of justice, but when it considers any matter except the appointment of a judge, it must sit without the members designated in terms of subsection (1) (h) and (i). 6. The Judicial Service Commission may determine its own procedure 13, but decisions of the Commission must be supported by a majority of its members. 7. If the Chief Justice or the President of the Supreme Court of Appeal is temporarily unable to serve on the Commission, the Deputy Chief Justice or the Deputy President of the Supreme Court of Appeal, as the case may be, acts as his or her alternate on the Commission. 8. The President and the persons who appoint, nominate or designate the members of the Commission in terms of subsection (1) (c), (e), (f) and (g), may, in the same manner appoint, nominate or designate an alternate for each of those members, to serve on the Commission whenever the member concerned is temporarily unable to do so by reason of his or her incapacity or absence from the Republic or any other sufficient reason. 13 Own emphasis added 24

25 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page Judicial Service Commission Act 9 of 1994 The JSC is further enabled by Act 9 of Section 5 of the said statute titled Publication of procedure of Commission provides that the: The Minister must by notice in the Gazette, make known the particulars of the procedure, including subsequent amendments, which the Commission has determined in terms of section 178 (6) of the Constitution. In accordance with the section 5 here above, the Minister 14 has published the procedure utilised by JSC for the nomination of candidates for appointment as permanent Judges. The following diagram gives a simplistic overview of the nomination and appointment process of Judges: - JSC publishes a public notice giving details of the vacancies that exist and calls for nominations Shortlists suitable candidates and invites them for interviews. Professional bodies and members of the public have the opportunity to comment prior to the interviews or to make representations concerning the candidates to the commission. The interviews are conducted in public, after which the JSC deliberates and makes its decisions in private. Its recommendations are communicated to the president, who then makes the appointments. 14 Regulation Gazette, No , 27 March

26 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 26 The gazetted procedure provides that an ad hoc commitee of the JSC be tasked with the screening of the nominated candidates.of key importance is that the screening committee must provide the short list of candidates 15 to the members of the Commission prior to the final list being sent out for comment. Members of the JSC may within 7 days of receipt of the short list request the Secretary of the Commission in writing to add to the short list the name of any candidate who was duly nominated but who was not included in the short list and who the member feels strongly should be added to the shortlist or candidates to be interviewed 16. Thereafter, the name of any such candidate shall thereupon be added the short list. The short list is then provided to key institutions for comment and publicly announced for comment by a specified closing date. It is noted that the CGE does not form part of the said institutions as to date, the JSC has never formally sent the CGE the list but rather CGE has received same by means of the media and / or the Constitutional Court mailing list. Per the definition clause, institutions encapsulates : the Law Society of South Africa, the Black Lawyers Association, the Department of Justice and Constitutional Development, the General Bar Council of South Africa, Magistrates Association of South Africa, the National Association of Democratic Lawyers, the Society of Teachers of Law and the Association of Regional Magistrates of South Africa, and such other institutions with an interest in the work of the Commission as the Commission may identify from time to time. The interview process is made open to the public and media. The JSC deliberate in private and by consensus or if required by majority vote, select candidates for recommendation in accordance with the overarching constitutional prescripts. 15 After the screening process 16 Section f 2(ii) 26

27 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 27 The delineated procedure is provided an open ended departure clause in section 7 thereof, wherein the JSC may depart or condone any departure from this procedure whenever, in its opinion, it is appropriate to do so. In during a special sitting of the JSC, it was resolved to publish criteria used when considering persons for judicial appointment. The intention of publication of the critera is motivated as follows:- This decision is in line with the JSC s principle that the process of judicial appointments should be open and transparent to the public so as to enhance public trust in the judiciary. The specified criteria contains those as set in the Constitution and further supplementary criteria. The following criteria are used in the interview of candidates, and in the evaluation exercise during the deliberations by the members of the Commission: Criteria stated in the Constitution 1 Is the particular applicant an appropriately qualified person? 2 Is he or she a fit and proper person, and 3 Would his or her appointment help to reflect the racial and gender composition of South Africa? Supplementary Criteria 1 Is the proposed appointee a person of integrity? 2 Is the proposed appointee a person with the necessary energy and motivation? 3 Is the proposed appointee a competent person? September 27

28 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 28 (a) Technically competent (b) Capacity to give expression to the values of the Constitution 4 Is the proposed appointee an experienced person? (a) Technically experienced (b) Experienced in regard to values and needs of the community 5 Does the proposed appointee possess appropriate potential? 6 Symbolism. What message is given to the community at large by a particular appointment? 5. GENDER TRANSFORMATION IN THE JUDICIARY THE CURRENT STATUS QUO (INSTITUTIONAL ANALYSIS) It has been widely reported that women are not adequately represented in the legal profession and in turn the judiciary within South Africa. Both the South Africa CEDAW periodic report and the Non-Governmental shadow report reflect this shortcoming. As such, it must be pointed out that meaningful transformation (in its broadest sense) has been slow in the legal profession. Men dominate the top positions in the profession (senior partners of law firms, senior counsel at the Bar and senior members of the judiciary) and in private practice these men are more often than not white. According to the 2013South African Legal Fellows Network survey, 18 South Africa s major corporate law firms are still dominated by white men, especially its upper echelons. In the 12 large firms canvassed 80 per cent of the chief executives were white men, as were 72 per cent of all managing partners. The picture at the CEO/managing partner level was replicated in the ownership and remuneration structures of the firms: 53 per cent of all equity partners were also white and male. While the judiciary has done better than 18 See Mapula Sedutla Necessary Transformation vol. 10 (2013) De Rebus 114. See also CALS & Foundation for Human Rights Report Transformation of the Legal Profession (2014) at 5. 28

29 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 29 the profession at large in changing its racial profile, the same is not entirely true for changing the gender composition of the judiciary. Over the past 20 years the number of women on the Constitutional Court has remained unchanged: two in 1994 and two in 2014 while the percentage of women in other High Courts remains below 30%: as at October 2013, there were 77 women judges out of a total of 239 in South Africa. 19 The number of women recently shortlisted by the JSC for various vacancies on the High Courts, suggest that while progress is being made, there appears to be a shortage of women candidates viewed as appointable by the Judicial Service Commission (JSC). Since June 2012 there has been two rounds of interviews for appointments to the Constitutional Court. During these two rounds, nine candidates were interviewed, of whom eight were men and one was a woman. Out of these two processes, two men were appointed. At the level of the Supreme Court of Appeal (SCA), there have been three interview processes since June Fifteen candidates were interviewed. Of these candidates, there were 13 men and two women. Six men and one woman were appointed out of these processes. At High Court level, which includes the Labour Appeal Court, Labour Courts, Electoral Courts and Land Claims Courts, there have been four interview processes. During these processes, 61 candidates were interviewed, of whom 32 were men and 29 were women. These processes led to the appointment of 17 men and 14 women judges. 20 The CGE during compilation of its CEDAW baseline report noted the following statistics within the judiciary 21 : - 19 CALS & Foundation for Human Rights Report Transformation of the Legal Profession (2014) at CALS & Foundation for Human Rights Report Transformation of the Legal Profession (2014) at Statistics provided by the JSC in

30 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 30 COURT MALE FEMALE Constitutional Court 9 2 Supreme Court of Appeal 19 8 Northern Cape 4 3 Eastern Cape: Grahamstown & Port Elizabeth 12 5 Bisho 3 1 Mthatha 4 3 Western Cape North West 3 3 Free State 10 4 North & South Gauteng KwaZulu-Natal 18 9 Labour Court 6 4 Total The JSC rightly commented on the progress made since 27 April 1994: - There were 165 Judges, 160 of those were white men, three were black men and two were white women. At that stage there was no black woman Judge in South Africa. 180 Progression / Comparison: Men Women 1994 to Men 22 For the compilation of CGE s CEDAW baseline report. 30

31 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 31 The CGE requested information from the JSC 22 which it responded with the following as to the challenges facing gender transformation in the judiciary: - The judiciary has worked tirelessly over the past decade to undo the thread of injustices that are still deeply embedded in our society. The Judicial Service Commission has made significant progress in remedying the skewed race and gender balance in the judiciary in South Africa. In a society such as ours, where patriarchy is so deeply embedded, the value of the participation of women on the bench cannot be underestimated. The need for women both on the judiciary as a whole and in leadership positions in particular cannot be exaggerated. The Judicial Service Commission has started to break important ground with the appointment of the first female Judge President, namely Judge President Monica Leeuw, appointed in April However, the picture remains unsatisfactory despite the passage of time and the Judicial Service Commission recognises this. The issue of the paucity of women on the bench needs to be addressed in a coordinated manner with all the stakeholders, including the CGE, legal profession, academia and Women s Organisations. We should all be alive to the fact that there cannot be any quick fix in ensuring that more women are appointed in the bench. It is a process which may take some time 23. A further analysis of this submission is made in-depth below in the report. It is further highlighted that the legal pool to source candidates is somewhat limited. This is pronounced in examination of the sex disaggregated statistics of both the General Council of the Bar (GCB) and the Law Society of South Africa as at 2013: 23 Response to CGE questionnaire CEDAW 31

32 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 32 COUNCIL / BAR FEMALE MALE Cape Bar Council Port Elizabeth Bar Grahamstown Bar Council 4 23 Free State Bar Council 9 55 Northern Cape Bar 3 4 Johannesburg Bar Council Pretoria Bar Association KwaZulu Natal Bar North West Bar 5 14 Transkei Bar 3 25 Bisho Bar 3 16 Total The Law Society of South Africa (LSSA) noted a total membership of of which 7577 being female and males 24. It has been recorded that female judges have reported feeling resented, invisible and excluded by male judges and lawyers. This in turn provides further motivation for increased visibility of women in the judiciary as it is essential to breaking down these patriarchal stereotypes and normalising the way in which female judges are perceived and treated 25. To date there are no substantive remedies mentioned for the lack of female representation within the judiciary 26. Updated statistics regarding paucity in the judiciary 27 As received from the JSC in April Statistics provided by JSC as at June As received from the JSC in April

33 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page PERMANENT JUDGES 70 AFRICAN MALE NUMBER OF JUDGES AFRICAN FEMALE COLOURED MALE COLOURED FEMALE INDIAN MALE INDIAN FEMALE WHITE MALE WHITE FEMALE 0 In summary, all the information sourced during the investigation, legal writings, CGE s institutional analysis and gender disaggregated statistics clearly illustrate that the judiciary is not reflective of the broader racial and gender society in which we live. 6. Investigation / Steps taken 28 As cited here above, the lodged complaint concerns an intricate, multifaceted and interrelated issue which history is deeply rooted in the segmented past that belies South Africa. The aforementioned interrelated and complexities saw the CGE deploy a multi-pronged approach in understanding the issues and causes with hamper a truly reflective judiciary. The following shall provide a visual illustration of the processes taken in the far reaching investigation. 28 Includes methodology used in support of the final recommendations 33

34 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 34 Lodged Complaint Responses from Cited Respondents Observing Judical Interviews and meetings with JSC Information sought from Key Stakeholders Opinion from Constitutional Law Expert Draft investigation report disseminated for inputs Final Investigative Report In accordance with the CGE s gazetted complaints handling manual, the investigation commenced with the said complaint being placed before the Respondents for response 29. The Respondents were also requested to respond to specific questions as follows: a) What measures (policies / programmes / legislation) are being implemented / considered by the Judiciary and the respective Respondents in dealing with the slow pace of gender transformation within the Profession. b) How will these measures adequately address this form of gender discrimination as alleged by the complainants? Please provide an explanation. c) What measures are being implemented to ensure that more women are nominated, short-listed, interviewed and appointed into judicial positions? 29 Right of reply 34

35 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 35 d) Who facilitates the process of sifting through and short-listing candidates? (Both permanent and acting appointments). e) What measures are being implemented / considered to increase and capacitate the pool of female legal professionals to ensure that they are primed to take up seats within the judiciary and what support structures exist to mentor and groom female incumbents? f) What measures are being implemented / considered to address the lack of gender sensitivity by judges who preside over cases where women are particularly vulnerable i.e. cases of sexual assault, violence against women, rape particularly when handing down judgments? g) Kindly identify the barriers that exist within the profession that impedes the appointment of females to judicial positions and how will this be addressed? The CGE s analysis of the responses of each entity can be seen hereunder 30 :- 6.1 Presidency The response is heavily reliant on the legal framework governing the appointment of Judges and Acting Judges. This is evident as most answers provided by the Presidency referred the CGE to engage with the CJ, Department of Justice and Constitutional Development and the JSC. Paragraph 7 of the cited reply is highlighted in support of the final recommendations to this report: - It is therefore recommended that you must consider engaging with the JSC, the Minister responsible for the administration of justice, the office of the Chief Justice, as well as other legal professional bodies. 30 Copies of the responses are annexed hereto marked Annexures A

36 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page Ministry of Justice and Correctional Services The Ministry took a similar stance to that of the Presidency and predominantly focused on the legislative framework governing judicial appointments, being that the JSC is tasked with the nomination and recommendation process. Nonetheless, the Ministry did correctly emphasise that that government and / or the state cannot solely affect the change required as it shall require contribution by all who are involved and affected by this state of affairs. The CGE accords with this view as despite legislative prescripts, the call for nominations require submission of candidates who have requisite legal capacity and expertise required for the judicial role. Consequently, role players / parties such as institutions of higher learning, law firms, law societies, the respective advocate bars and non-governmental organisations all need to have a common and co-ordinated role to play in the development of women to take the heralded position of a Judge. Of significance in the reply to the posed question, what measures are being implemented to increase and capacitate the pool of female legal practitioners to ensure that are primed to take up seats within the judiciary... the Ministry cites increase of briefs being afforded to previously disadvantaged persons. No gender disaggregated statistics are provided. Thus, it is questioned whether race triumphs gender in the allocation of the said briefs 31 In reply to the previous question, solace may be taken from the comments made by Deputy Minister of Justice, John Jeffery at the end of 2014 during a seminar titled Gender transformation within the Legal Profession 32 : - It is also encouraging to note that of the briefs given to counsel by the State Attorney here in Cape Town, nearly half have gone to female practitioners. In the last financial year a total of 572 briefs were given to 31 The allocation of briefs to previously disadvantaged persons 32 Initiated by the Western Cape branch of the National Association of Democratic Lawyers (NADEL), in partnership with Foundation for Human rights. 36

37 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 37 counsel, of those 272 briefs went to female advocates and 300 to males. Of the 272 briefs that went to female counsel, 94 were given to African females, 94 to Coloured females, 47 to Indian females and 37 to white females. 33 The state s averment that it is dedicated to transformation was provided further underpinnings with the recent announcement of proposed appointment of a Solicitor-General. 34 The aforementioned announcement is a direct result of the policy framework titled: A Framework for the transformation of the State Legal Service Opening the doors of access to equal and affordable justice for all 35 which in turn led to the drafting of the State Attorney Amendment Bill. The policy framework recognises the need for transformation and cites measures to accelerate the process. The most significant measure is the establishment of a Solicitor General who would consolidate and integrate services within the Department to streamline civil litigation of the State and oversee transformation. The policy framework also notes with concern the lack of paucity within the legal fraternity and cites how the Department shall increase briefing to women: - The underrepresentation of women in legal practice is a cause for concern and requires special interventions in briefing patterns by both the state and the private sector. As women are severely underrepresented in the cadre of advocates and attorneys, the department will prioritise briefing patterns to improve this capacity. The scope will be extended to include women attorneys that have the right of appearance in High Courts. Women will for example be encouraged to join the legal fraternity by offering bursaries to women, utilising government s initiatives such as the Techno girl and appointing women to do articles of clerkship in government. Furthermore, the work allocated to women will be actively monitored, with regular debriefings so as to understand the challenges and find ways to address them. 33 A Framework for the transformation of the State Legal Service Opening the doors of access to equal and affordable justice for all, Department of Justice and Constitutional Development (2012) Published for comment in

38 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 38 It is discouraging to note that the Ministry in their response mentioned that out of 1661 magistrates appointed, 687 have been women 36. The magistracy pool is one of the areas where Judges are drawn from. Be that as it may, the transformation of new appointments cannot be seen in isolation and need to be formally compared with the number of appointment of judges. One can also then ponder why the magistracy is transforming at what seems to be a far more escalated rate than the appointment of judges. At the aforementioned seminar the Deputy Minister, John Jeffery cites, the number of female magistrates have increased significantly from a total of 284 in 1998 to 667 currently. This means an increase of 134%. There were only 62 African female magistrates in 1998, today there are 285. This means an increase of 359%. Of the 285, 2 are Regional Court Presidents and nearly 50 are Regional Magistrates. The other percentage changes in our magistracy since 1998 show that the number of Indian females have increased by 363%, Coloured females by 1120% and white females by 17%. For the first time in the history of the magistracy we now have more women than men at the level of Chief Magistrate. Of the 18 Chief Magistrates, 10 are female (six African females, two Indian females, one Coloured female and one White female). Of the nine Regional Court Presidents, four are female 37. In comparison of the statistics provided by the Ministry in reply to CGE s questionnaire and the recent speech delivered by the Deputy Minister, one can deduce that there has been a reduction of female magistrates. This raises the question of why the decrease of 20 female magistrates in a period of over a year? % women

39 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 39 At the time of the Ministry s response, the Legal Practice Bill had not been promulgated, however, the Ministry in the response affirms that the statute seeks to address the obstacles placed in the path of women in the journey towards judicial appointment. Nonetheless, the CGE observes that the Legal Practice Act 28 of 2014 will take a considerable period for full implementation 38. Currently only sections 1 and 2 (ss ) of chapter 10 are in operation as from the 1 st February Thereafter, the remaining sections shall come into operation on a staggered manner on dates to be fixed by the President. The currently operative sections concentrate on the National Forum and its objectives as per Section 97 (1) (1) The National Forum must, within 24 months after the commencement of this Chapter (a) make recommendations to the Minister on the following: (i) An election procedure for purposes of constituting the Council; (ii) the establishment of the Provincial Councils and their areas of jurisdiction, taking into account the factors referred to in section 23(2)(a); (iii) the composition, powers and functions of the Provincial Councils; (iv) the manner in which the Provincial Councils must be elected; (v) all the practical vocational training requirements that candidate attorneys or pupils must comply with before they can be admitted by the court as a legal practitioners; (vi) the right of appearance of a candidate legal practitioner in court or any other institution; and (vii) a mechanism to wind up the affairs of the National Forum;

40 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 40 (b) prepare and publish a code of conduct for legal practitioners, candidate legal practitioners and juristic entities; and (c) make rules, as provided for in section 109(2). 39 Ironically, the cliché a picture paints a thousand words shows the lack of paucity within the Forum itself 40. Back row standing from left: Adv Brian Nair, Legal Aid South Africa Adv Jurgens Prinsloo SC, National Forum of Advocates (NFA) Adv Mark A Hawyes, National Bar Council of South Africa (NBCSA) Adv Dali Mpofu SC, General Council of the Bar of South Africa (GCBSA) Adv Gregory Harpur SC, General Council of the Bar of South Africa (GCBSA) Mr Kisten Govender, LSSA, National Association of Democratic Lawyers Middle row standing from left: Professor Managay Reddi, South African Law Deans Association Adv Thami Ncongwane SC, General Council of the Bar of South Africa (GCBSA) Ms Kathleen Matolo-Dlepu, LSSA, Black Lawyers Association Adv Dumisa Ntsebeza SC, Advocates for Transformation (AFT) Adv Geoffrey Budlender SC, General Council of the Bar of South Africa (GCBSA) Ms Manette Strauss, LSSA, KwaZulu-Natal Law Society Ms Thina Siwendu, Person as Designated by Minister: DoJ&CS Mr Abednego Mathebula, Attorneys Fidelity Fund Board Ms Janine Myburgh, LSSA, Cape Law Society First row sitting from left: Mr Jan Stemmett, LSSA, Law Society of the Northern Provinces Mr Max Boqwana, LSSA, National Association of Democratic Lawyers Adv Kgomotso Moroka SC, Person as Designated by Minister: DoJ&CS Ms Charity Mhlungu, Executive Officer Mr Lutendo Sigogo, LSSA, Black Lawyers Association Mr Jan Maree, Law Society of the Free State men to 16 women. 40

41 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 41 In reply to the CGE s draft investigative report, the Minister of Justice and Correctional Services cited support for the CGE s recommendation that there should be an engagement between the parties (the CGE, Department of Justice and Correctional Services, Judicial Service Commission and the Presidency) to convene a National summit to actively engage key stakeholders to discuss gender transformation in the judiciary and come up with practical resolutions and implementation plan on the matter. The Ministry further added that it is therefore recommended that the JSC in partnership and consultation with the Department of Justice and Correctional Services, CGE and Portfolio Committee on Justice and Correctional Services convene a notional symposium/seminar/summit to actively engage key stakeholders to discuss gender transformation in the Judiciary. However, The Ministry noted its reservation to the above commitment and would commit only if other key role-players were amenable to such an event. The Ministry stressed that the issue of transformation is something that has formed the subject of various departmental initiatives and mentioned that it formed part of their recent Symposium held on the 30 th September 2015 and 1 st October 2015 for the State Attorney and held a two-day dialogue on transformation in the legal profession which included a day on women in the legal profession which took place on the 14 th to the 15 th December However, the Ministry did not share what findings and commitments were taken at the two events. Regarding the recommendation that the Department of Justice and Correctional Services develop legislation that will deal with gender transformation in the Judiciary, the Ministry was unenthusiastic regarding the suggestion, citing section 174(2) of the Constitution of the Republic of South Africa which speaks broadly on issues of race and gender composition of South Africa when judicial officers are appointed. The CGE places concern on this direction of argument as there is a large vacuum as what is in place to monitor and give to the effect S174(2) of the Constitution. 41

42 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 42 In reply to the CGE s draft recommendation that the state attorney general and private sector should ensure that there is equal distribution of briefs to both women and men with particular reference to black women, the Ministry admitted that there is evidence that when attorneys and advocates are briefed to act on behalf of the state the instructions are not shared equitably among the diverse constituencies of practitioners, with black and female practitioners being the worst affected. To address this deficiency, the State Amendment Act 13 of 2014 provides for the development of policy of briefing patterns and mediation. The Ministry has given itself a target of 76% of briefs to be given to black and female practitioners and acknowledges that part of the 76% should be strictly earmarked for African women. The Ministry acknowledged that in the 2014/2015 financial year, the total value of briefs given to female counsel was R compared to R that was given to male counsel which is still farfetched from the Ministry s target. Briefs Men Women The Ministry also indicated that no single role player in the justice system can bring about transformation of the judiciary on its own. The legal profession, the JSC, the Department of Justice and Correctional Services and the Magistrate s Commission must address this matter. 42

43 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page Judicial Service Commission It is noted that the CJ 41 responded to the CGE in his capacity as Chairperson of the Judicial Service Commission 42. From the onset it is recorded that the response provided to the CGE largely echoes the response as provided in June 2013 to the CGE s CEDAW questionnaire. An aspect which needs to be reiterated is the JSC established an Ad Hoc Committee to investigative the paucity of women candidates. The provided response states that the said Committee under leadership of Advocate Ntsebeza SC recognised the urgent need for women candidates to make themselves available recommending that more women from private practice and academia should be encouraged to attend trainee programmes offered by the South African Judicial Educational Institute. The submission made by the JSC in this regard fails to elaborate and answer the following critical questions (a) how women can make themselves available to the bench; and (b) whether the JSC has created an environment in which a pool of female candidates are permitted to avail themselves. The JSC makes reference to the training programmes offered by the South African Judicial Educational Institute and it is unclear how many female candidates benefited from this programme and eventually considered for appointment on the bench. Through the CGE s observations at the interview process convened by the JSC 43, it was dramatically evident that each candidate is asked if they have held an acting position. The process of selection and appointment of acting positions is vague and open to influence as it primarily rests on the respective Judge Presidents to source a suitable candidate and make recommendation for appointment. 41 Chief Justice 42 The citation of the CJ in his capacity as head of the Constitutional Court, may be considered overstepping the lines of the separation of powers doctrine. 43 Same will be further discussed hereunder 43

44 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 44 The aspect of acting positions can be seen as a conduit to be appointment on a permanent level. As set out in the gazetted procedure for the selection and interviewing of possible permanent appointments can be described as broad as there are no specific provisions for how or in what manner the call for nominations shall be published and / or advertised. Moreover, the lack of specific time lines for the time between calls for nomination and the request for comment by institutions and the public need require further detail / tightening. DGRU provide a key function in researching candidates judgments prior to the interview process. The CGE commends the important function that the DGRU undertakes as it provides a factual basis for assessment of candidate. In a recent report it averred insufficient time to conduct adequate, in-depth research into the judicial backgrounds of the candidates 44 The CGE also notes the departure clause in the formal procedure as a means to negate the procedure set out. Moreover, the aspect that a member of the JSC may call for a candidate to be shortlisted after the sifting process of the ad hoc committee is nonsensical as the sifting committee and the listed criteria should produce the required result. The JSC s publicised criteria for consideration of candidates during the sifting and interview process is also considered open ended. For example, the supplementary criteria pose the following question: - Is the proposed appointee a person with the necessary energy and motivation? The question then arises: motivation? how would one assess energy and

45 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 45 The JSC acknowledged the challenge of the lack of criteria or process in the selection of Acting Judges with the response to the draft investigative report and stated the following: This issue was brought to the attention of the JSC by the General Council of the Bar. This culminated in a joint sitting of the JSC and the Heads of Court to deliberate on this matter. Draft criteria on the selection of Acting Judges was developed which were served before the Heads of Court at their meeting held on 03 April At this meeting, the Heads of Court unanimously approved the criteria that will be used when Acting Judges are considered by the Heads of Court. The JSC further observed and highlighted the following 45 : The issue of slow pace of gender transformation within the Judiciary cannot be resolved by the JSC only as it is a worldwide phenomenon. Many jurisdictions including some of the mature democracies have been grappling with this issue for a long time and it may take a while to be resolved. Despite this challenges, the JSC has seriously considered the role of women and the recent recommendations have been very positive. There is definitely progress from the side of the JSC despite a small pool of women candidates from which Judges could be drawn. Since October 2011, the JSC has recommended about 119 candidates to the President for appointment in the Superior Courts. Of the 119 candidates, the JSC recommended 47 women candidates. These recommendations have seen some women candidates being recommended to leadership positions thereby dispelling the misconception that judicial leadership is the preserve of men. Amongst the leadership positions to which women candidates 45 Correspondence dated 29 April

46 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 46 were recommended in the Superior Courts recently are the Deputy President of the Supreme Court of Appeal, the Judge President of the Free State Division of the High Court; the Deputy Judges President of the Limpopo and Western Cape Divisions of the High Court. It is evident from the JSC response that women are recommended to leadership positions provided that women are available and nominated. The CGE applauds the frankness of the JSC in its response that the issue of paucity of women on the bench needs to be addressed in a coordinated manner with all the stakeholders including the CGE, legal profession, academia and Women s organisations. 46 The forthrightness of the JSC sparks the question of whether affirmative action measures are required to be deployed by the said Commission. This question is also supported by academic scholars wherein it is asked why women are unrepresented in the judiciary in a country that mandates affirmative action in making appointment? 47 Many would argue that this may undermine the independency of the judiciary as it would narrow. However, on the reverse, it could be argued the Constitutional dictates as contained in Section 174(2) provide for such measures to be taken. The CGE notes that all three responses contain the fingering approach wherein the CGE is directed to request further response or pose the said questions to the other role players in the sector. This leaves an ever lingering impression that the goal of gender transformation within the judiciary is being addressed in silo s as opposed to a holistic and co-ordinated approach. The JSC highlighted that the President has no discretion to reject a list of recommended candidates in respect of candidates recommended pursuant to the provisions of section 174(6) 46 See page 3 of the JSC response to the CGE dated 17 June Cohan R, Women s representation on the courts in South Africa, U.MD.L.J Race, Religion, Gender and Class, Vol 6, 2006 at page

47 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 47 of the Constitution. The Presidency may decide against making an appointment from the list submitted by the JSC, if any of the recommended candidates on the list are unacceptable only in respect of candidates recommended for appointment in the Constitutional Court. With regards to the other Judges, the JSC observed that section 174(6) of the Constitution expressly provides that the President must appoint Judges of all the courts on the advice of the JSC. This submission indicates the important role of the JSC and the Presidency in the appointment of judges. The Presidency can only appoint candidates that are recommended by the JSC. The JSC on the other hand relies on the candidates that have been nominated. This is further evident that the transformation of the judiciary cannot be sole responsibility of only the presidency nor the JSC. After receipt of the Respondents replying correspondence, it became apparent that information from key role players in the South African legal fraternity was required. Accordingly, questionnaires were dispatched to significant stakeholders: - Black Lawyers Association (BLA) the entity did not respond despite demand Such disregard by an association with considerable clout in the legal sector is worrying and is considered as blatant disregard for the CGE and its constitutional prerogative. The Law Society of South Africa (LSSA) South African Chapter of the International Associate of Women Judges (SAC-IAWJ) only provided response after the draft investigative report was provided to the Complainants and Respondents South African Judicial Education Institute (SAJEI); National Association of Democratic Lawyers (NADEL); and 47

48 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 48 Judge Presidents of the High Courts and Appellant Division South Africa 48. The completed questionnaires were crucial for the CGE to further understand and conceptualise the systemic causes for the lack of gender transformation in the judiciary and legal fraternity as a whole. Moreover, it provided further insight into what may be required to provide a pragmatic solution to the problem at hand. The Law Society of South Africa provided the CGE with preliminary results of its survey centring on the sourcing information as to why the majority of female law graduates opt not to pursue a legal career in practice and what challenges female legal practitioners face. Of key significance is the challenges listed to the social and family responsibilities carried by women. This in turn led to the indication from participants of the survey that it overcome these responsibilities and burden, that there should be flexible working hours, home offices and child care facilities at work. The LSSA notes that as on the 18 th of July 2014, 37% of practising attorneys were women, an increase of 5 % in five years from the 32 % in The progression of 5 % in five years is slow in view of the provided information that 56 % of candidate attorneys are women. The paucity of women members in the four provincial law societies shows that inequality can be further tracked on geographical jurisdiction. As the investigation spanned over years, the CGE requested updated statistics to ensure that the report was not dated in its content. Accordingly, the figure s marked in red are those as at 1 st of August Copies of the responses and unanswered questionnaires are annexed hereto marked Annexures A

49 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 49 The paucity of women members in the four provincial law societies: - Society Female Male Law Society of the Northern Provinces (LSNP) 4735 (5386) 8014 (8673) Cape Law Society (CLS) 2073 (2373) 3920 (4026) The Law Society of the Free State(FSLS) 314 (307) 717 (672) Kwa-Zulu-Natal Law Society ( KZNLS ) 1185 (1301) 1865 (1906) The LSNP which covers a large area of South Africa 49 indicates the lack of women in the practising legal profession, which profession is used to source candidates for acting positions within the judiciary (other than Counsel). Of further concern is that the LSSA Council consists of 20 Councillors of whom only four are female. At a provincial perspective, the lack of paucity is also apparent in view of the gender disaggregated statistics of its Councillors Society Female Male Law Society of the Northern Provinces ( LSNP) 7 (4) 17 (19) Cape Law Society (CLS) 3 (4) 17 (20) The Law Society of the Free State(FSLS) 3 (2) 9 (10) Kwa-Zulu-Natal Law Society ( KZNLS ) 4 (4) 16 (16) 49 Gauteng, Mpumalanga, North West and Limpopo Provinces 49

50 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 50 As alluded to here above, the decline of women through the transition from candidacy to that of a practising attorney is concerning. This is evidenced by the following: - Society Female Male Law Society of the Northern Provinces ( LSNP) (1815) (1412) Cape Law Society (CLS) (782) (532) The Law Society of the Free State(FSLS) (172) (132) Kwa-Zulu-Natal Law Society ( KZNLS ) (341) (184) The South African Judicial Education Institute cites that it provides the lists of delegates who have undergone training 50 to the Judge Presidents. It is encouraging that the gender disaggregated statistics of on the number of candidates who had successfully completed the Basic and Advanced Aspirant Judges Course weigh in the favour of females. Like LSSA, the National Association of Democratic Lawyers cites social and family responsibilities as a barrier hindering the progression of women in the judiciary. Furthermore, the interview process at the JSC is said to be brutal to the women candidates. The lack of gender disaggregated data from the entity infers the lack of gender parity awareness in that it was unable to provide gender disaggregated statistics of its members. The CGE requested information from all the Judge Presidents with intent to seek information as to the manner in which they scout for 50 Basic Aspirant Judges Course and Advanced Aspirant Judges Course 50

51 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 51 persons for acting positions. The questionnaire was completed by the Acting Judge President, Judge MH Rampai, of the Free State Division as a means of a collective response. The cited response reaffirmed the CGE s observation that there are not fixed criteria for the process of selecting a potential person for an acting position: - I have no fixed criteria or set of rigid rules. These are the little things I look for in an individual before I extend an invitation to act: A little knowledge of law in general; An ability to speak well; Mastering the art of writing; Capacity for hard work; Good name in society; Gentle, pleasant, friendly and humble personality. The long awaited response from SAC-IAWJ further highlighted the disconcerted effort in gender transformation in the judiciary. Increasing the number of women in all levels of the judiciary through ongoing training and mentorship is one of the broad objectives of the Chapter. However, the Chapter has no meaningful partnerships with LSSA, the SAJEI, BLA, the GBC or the Magistrates Commission. The SAC-IAWJ points out a deep-rooted factor that contributes to the status quo. Even though there are more females graduating from university, fewer are in practice. The pool from which to draw practicing female attorneys or advocates gets even smaller. The result is that there are very few females that can be nominated and successfully appointed into the judiciary. The lack of funding and administrative capacity has hampered some of the good work that the Chapter vigorously ushered in with its inception. For instance, the last session of formal training for newly appointed female judges was in On an ongoing basis, the 51

52 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 52 Chapter hosts dialogues, short courses and seminars in partnership with tertiary institutions. From their submission it is difficult to discern how much impact their initiatives have had on their foremost goal of increasing the number of women in all level of the judiciary. The CGE has also held meetings with JSC regarding gender transformation in the judiciary and to establish a working relationship that was lacking. It was apparent during the said meetings, that information regarding the number of nominations and those filtered by the selection committee was not forthcoming. In essence, the CGE wished to track the gender disaggregated statistics of the persons nominated to the persons finally placed on the short list. Despite resistance in disclosing the aforementioned information, the interaction between the CGE and JSC amplified the need for CGE to become an active participant in the nomination process. The aforementioned led to the CGE nominating Justice Molemela for the vacancy of Judge President, Free State Division. Furthermore, the CGE attended as independent observers of the JSC interview process during April and October 2014 respectively. At the said interviews it was observed that the utilized venues were not conducive for the public attendance, thus eroding the transparency of same. The April 2014 interviews were held at the Bay Hotel, a luxurious hotel in Camps Bay, Cape Town. Whilst the October 2014 interviews took place at the five-star Apostle Hotel, Cape Town. For the transparency of such interviews to be maintained, venues wherein the general public can easily access should be selected. There were only three female candidates out of twenty being interviewed for vacancies in the country s higher courts in April 2015; a gloomy picture telling the sad tale of how untransformed the upper echelons of the legal field were. Two of the candidates were 52

53 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 53 recommended for appointment. The questions put to these female candidates seemed to suggest that the responsibility to rise through the ranks and adversity of the legal profession as well as coping once appointed to the bench was a matter of personal responsibility. The year 2015 ended on a high for gender transformation in the judiciary with the appointment of Justice Nonkosi Mhlantla to the Constitutional Court. The post had been vacant for more than a year. April 2016 saw a varied group of individuals shortlisted for judicial positions; one can say a good mix of young, old and both genders. Out of the 34 shortlisted candidates for various courts, 14 were females. There were 13 vacancies and 11 candidates were recommended for appointment. Of the 14 female candidates, only four were appointed. Three already being on the bench with stellar track records. The fourth candidate impressed with her performance during her acting stints and well-rounded experience in private practice. In general, the line of questioning was non- discriminative; however, scrutiny fell on the least experienced candidates as well as the controversial ones. It is commendable to see that the Commissioners have moved away from question framed in how will you cope in a male-dominated environment as these seemed to place the burden of a less transformed field on the female candidates. The line of questioning was mostly based on judicial competence which also entails broad understanding of the legal system. There is will from the institutions that nominate candidates; this might even be clearer if the JSC could publish the list of all nominees before the shortlisting. What the interview process shows is that there will be 53

54 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 54 no compromise on merit and judicial excellence for the sake of achieving gender transformation. The female nominees need to prove that they meet the standard expected of a judge, on par with their male counterparts. Finally, the CGE sought the legal opinion of De Vos regarding the following pertinent questions: - 1. Whether there is a need for the CGE to hold Public Hearings 51 on the matter in the light of the information received from various role players; and 2. The feasibility of various issues of concern and associated recommendations as highlighted by the CGE. De Vos in his opinion notes that the causes of the lack of gender transformation in the judiciary is a broad and systemic issue that cannot be exacerbated by sole focus on the cited Respondents and key stakeholders, but rather a holistic and pragmatic approach. The proliferation of causes for the lack of adequate paucity is explained by De Vos as follows: - It must take cognisance of the fact that members of the judiciary are appointed from among the members of the practicing legal profession and hence that the culture prevalent within the profession, the attitudes of its members about gender issues (amongst other things), the status of women within the profession, and the practices both within the profession and within the judiciary (including practices surrounding the appointment of acting judges and possible sexism within the judiciary) will affect the pace and the quality of gender transformation in the judiciary There was rigorous internal debate as to whether the CGE could place a Notice to Appear before members of the Judiciary and whether holding of a Hearing would be counterproductive to achieving gender paucity on the bench. 52 De Vos, P Gender Transformation, what needs to be done 54

55 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 55 De Vos elaborates that in order to properly address the lack of gender paucity in the legal profession, the various systemic reasons for lack of progression of the women as opposed to the male counterparts need to be identified and addressed. He cites the following as the systematic reasons: - a) Institutional Culture The institutional culture of law firms and the Bar (as well as the judiciary) is dominated by white male interests, taking the experience of white men as the norm and measuring others against this norm. This invariably causes the othering of female (especially black female) lawyers 53 because their interests or sheer appearance lies outside the hegemonic norm. An institutional culture is the set of prejudices, beliefs, informal practices, and often unspoken values that reflect the worldview and assumptions of the culturally and economically dominant group in that institution... b) Sexist (and racist) perceptions and practices We live in a society steeped in racism and sexism. It would therefore be more than surprising if racial and gender prejudice did not also permeate the legal profession and those who make use of the services of members of the legal profession. The CALS study noted that respondents mentioned several instances in which they encountered racial and gender privilege in their work. Several examples of these biases (often unknown to the person expressing it) are mentioned in the report, including: (i) senior counsel and clients preferring and listening to white males over black and/or female colleagues; (ii) instances of preferring white junior counsel over black junior counsel continue to occur or when a black counsel is requested, making sure that a senior white counsel is briefed to ensure the buck stops with him; 54 (iii) overly protective senior partners of their female juniors, treating them more like their daughter than a fellow professional and thus infantilising and 53 It is important to note the intersecting nature of discrimination based on both gender and race experienced by black female lawyers. 54 Ibid at 22 55

56 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:54 PM Page 56 disrespecting them; or (iv) females bearing domestic responsibilities like pouring tea at consultations. 55 Apart from these examples, there are more general problems faced by especially female lawyers in the profession. Some of these are of an especially serious nature. (The respondents that took part in the report did not include any members of the judiciary. However, as members of the judiciary are appointed from among the members of the legal profession it would be surprising that the attitudes of fellow lawyers and clients encountered by women lawyers in the profession did not also exist in the judiciary.)... c) Opportunities for exposure to different types of work The skills required to practice law is about more than book knowledge. Lawyers gain skills and knowledge through their active involvement in cases dealing with different aspects of the law. Judges gain skills and knowledge that allow them to be appointed to higher courts by being involved in increasingly complex cases... d) Briefing patterns Young advocates trying to establish themselves and trying to get a wide array of work that would not only allow them to survive financially at the Bar but also to thrive and progress in the profession, need to find champions in the attorneys profession (or among state law advisors) who will brief them. For young women advocates, it can be particularly difficult to break in to the profession and to get the briefs needed to survive and thrive. This is so because there is an overwhelming tendency among attorneys (also attorneys working for NGO s and for the state) to brief advocates that look like they do in terms of race and gender, have the same interests or take part in the same kinds of social activities, go on holiday at the same kinds of venues Ibid at

57 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:54 PM Page 57 e) Lack of Training and Mentoring The training and mentoring of young attorneys and advocates is a difficult issue. If done badly, it can easily perpetuate the obnoxious (and often racist or sexist) assumption that black and women lawyers are inherently less capable than white male lawyers and are thus in greater need of training and mentoring. All lawyers require training and mentoring. Some lawyers might need more training and mentoring, not so much because of any deficit on their side than because the institutional culture within which they operate is not one that reflects their life experiences or their cultural values. Some may need more mentoring because of the many barriers placed in their path to advancement due to their race or gender (as discussed above)... f) Lack of practical experience as acting judges The criteria that the JSC says it uses during the interviewing and selection process focus in part on the experience of a candidate nominated for a position on the bench. In practice, candidates are often questioned by JSC commissioners about whether they had served as acting judges, how long they have served as acting judges and what lessons and insights they gained from their experience as acting judges. There is no formal process for the identification of acting judges for appointment and many of the same barriers faced by women in advancing in their careers as lawyers may limit the number of females appointed as acting judges in the various divisions of the High Court. Given the fact that only one of the heads of court is a women, and given further that there is no formal policy that guides heads of court when they identify candidates for appointment as acting judges, it would be surprising if the institutional culture within the judiciary, the tendency of individuals to select and champion those who look like them, who mix in the same social circles at the same types of events and who share their world view, 56 CALS & Foundation for Human Rights Report Transformation of the Legal Profession (2014) at

58 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:54 PM Page 58 would not predispose at least some heads of court to appoint far more male than female acting judges. Because there is no formal process through which potential acting judges are identified by heads of court, and because there is no formal policy requiring acting appointments to take into account redress needs in terms of race and gender, whether sufficient women are ever asked to act as judges in various courts depends entirely on the initiative of individual heads of court. Some heads of court may actively seek women candidates for appointment while others may not. It is further elaborated that investigation of the complaint by means of a Public Investigation Hearing 57 may overstep the independency of the judiciary and result in an unyielding working environment between the CGE and entities critical in seeking a solution to the complaint at hand. The issues that hamper the gender transformation of the judiciary are deep-seated and systemic and it is unclear whether holding a formal Public Hearing on the matter (with the resultant possibility of an adversarial dynamic arising between the CGE and the bodies called before it) will do much to get the various role players to reflect in a self-critical and honest manner about these systemic problems, the need to address them and possible avenues for addressing them FINDINGS AND RECOMMENDATIONS It cannot be disputed that there is a slow pace of gender transformation in the judiciary. The lack of gender transformation is not only applicable to permanent posts but it is also reflected in the appointment of acting judges. The CGE found that there are gaps in the information received and other reasons are not adequately dealt with in the answers received by the CGE from the various role players canvassed by it. 57 In terms of Section 12 of Act 39 of De Vos, P Gender Transformation, what needs to be done 58

59 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:54 PM Page 59 In fact, the responses, disappointingly, are often not as reflective and as detailed as one would have expected them to be. The information submitted to the CGE shy away from the barriers, behaviour and unwritten rules of the profession that impede talented individuals from progressing. These barriers, which are often caused by rules, practices and attitudes about women that are stereotypical and hurtful, occur throughout the lifespan of the legal career. This is also supported by a 2005 Sunday Times article titled Women Judges tell of Struggle For Acceptance wherein the author indicates that the experiences of a few women judges reflect badly on the non-committal of the male judges on non-sexism. In the said article a female judge recollected a non-collegial treatment by her fellow male judges in the following statement: Normally, amongst the judges who will hear a case together, you talk beforehand about the issues that you want to raise when the matter is argued in court. In the first few years, they would not talk to me and even once we were in court, on the bench, i would sit there like a spare wheel 59. However, the stark reality is that without address of the institutional culture, gender transformation at the highest echelons of the legal profession will not be attained. In order to overcome such systematic concerns, debate and active participation is required. The CGE s investigation process has yielded key insight into the complaint and findings on the hindrances to gender paucity on the bench, including - 1. Lack of certainty of the JSC procedure and criteria. 2. Lack of criteria / process in selection of Acting Judges Inaccessibility of venues utilised by the JSC. 4. Lack of female leadership at institutions such as LSSA. 5. Patriarchy and sexism which continue to persist requires women to prove themselves in this male dominated profession. 59 Rickard C, Women Judges tell of Struggle For Acceptance, Sunday Times, 10 April 2005, 60 wide net of discretion afforded to Judge Presidents this is prior to the JSC s updated response. The CGE has called for the list of criteria / process in securing Acting Judges. 59

60 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:54 PM Page The finger-pointing by key stakeholders as to who bears the ultimate responsibility to ensure gender transformation within the judiciary. 7. The availability of women and/or their willingness to be available for the appointment of certain judicial positions. It is therefore recommended that: A. The CGE in consultation with the Complainants and other key institutions prepare a discussion document on the various factors that may hamper the progression of women lawyers within the legal profession as a whole. The said discussion paper will also include the observations and recommendations as found by the CGE during its investigation process as delineated here above. The aforementioned discussion paper will be published for comment in order to aggravate an open discussion on the subject matter. B. There should be engagements between the parties (the CGE, Department of Justice and Correctional services, Judicial Services Commission and Portfolio committee on Justice and Correctional services and the Presidency) to convene a National summit to actively engage key stakeholders to discuss gender transformation in the Judiciary and come up with practical resolutions and implementation plan on the matter. Funding to be shared equally between parties. C. The State attorney general should ensure that there is equal distribution of briefs to both women and men with particular reference to black women attorneys. Additionally, it is recommended that government and the state owned enterprises (SOE s) should insist in their instructions to the State Attorney that their briefs should include women. D. The private law firms must be engaged and encouraged to adopt policies and practice which will ensure that there are equal distribution of briefs to women with particular reference to black women attorneys and advocates. 60

61 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:54 PM Page 61 E. The Bar Council, in the Republic of South Africa must be engaged and encouraged to adopt rules and/or practice which will ensure that the women at the bar are briefed in matters involving senior counsel and/or in matters where a senior counsel requires a second junior. In addition, where the Bar Council is called upon to appoint an arbitrator, preference must be given to women at the bar (with particular preference to black women). F. The Judge Presidents and/or the Deputy Judge Presidents of all the divisions must be engaged and encouraged to approach and attract women practitioners to act as Judges and be preferred to their male counterparts in order to address the current imbalances. G. The Judicial Service Commission must be engaged and encouraged to adopt a policy and/or criteria which will ensure that women (with particular preference to black women), to be appointed as full time Judges in order to address the current imbalances. 8. CONCLUSION The investigation report reaffirms that issues relating to gender transformation in the judiciary are very broad and sensitive. There is no clear cut in resolving the complaint before the CGE, it is axiomatic from the report that the appointment process of Judicial officers involves a number of role players, this includes inter alia law societies, academia, voluntary association that co-exists with statutory bodies governing the legal profession, the legal profession, JSC and the Department of Justice and Constitutional Development. Thus it will not be a correct approach to have one institution to take and accept responsibility of the paucity of women in the Judiciary. 61

62 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:54 PM Page 62 Signed at Constitution Hill on the 5th day of December Ms Keketso Maema Chief Executive Officer: Commission for Gender Equality No.2 Kotze street Women s Jail, Eastwing Constitution Hill Braamfontein Johannesburg Tel: Fax: keketso@cge.org.za 62

63 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:54 PM Page 63 Annexure 1 Annexure 2 Annexure 3 Annexure 4 Annexure 5 Annexure 6 Annexure 7 Annexure 8 Annexure 9 Annexure 10 Annexure 11 Response from the Presidency of the Republic of South Africa Response from the Minister of Justice and Constitutional Development Response from the Judicial Service Commission Questionnaire to the Black Lawyers Association Questionnaire to the Law Society of South Africa Questionnaire to the South African Charter of the International Associate of Women Judges Questionnaire to the South African Judicial Education Institute Questionnaire to the National Association of Democratic Lawyers Questionnaire to the Judge Presidents of the High Courts and Appellant Division South Africa Judicial Service Commission, Procedure of Commission, Regulation Gazette No Responses to the Draft Investigative Report Justice and Correctional Services Republic of South Africa Judicial Service Commission Sonke Gender Justice and Democratic Governance and Rights Unit Ad question 2 The South African Charter of the International Associate of Women Judges The South African Charter of the International Associate of Women Judges Presidents Report 2013/14: The South African Charter of the International Associate of Women Judges Presidents Report 2015: The South African Charter of the International Associate of Women Judges 63

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