Although the obligation to appoint women as judges originates from the constitutional injunction to consider “the need for the judiciary to reflect broadly the racial and gender composition of South Africa,” gender transformation has lagged behind racial transformation of the bench. During the past four years, however, the lack of women appointees has become a more contested issue. This paper investigates the relationship between gender transformation and racial transformation of the judiciary in public debates around the judiciary. Despite the universally voiced concern about the lack of women judges, the most frequent and acrimonious public disputes continue to centre upon racial issues. The imperative to appoint women judges is often articulated as an alternative to appointing black judges, although the statistics show that the greatest need is for the appointment of black African women. Debates on gender transformation of the bench also remain premised on a formal notion of equality that focuses on numbers of women judges rather than on appointing male or female judges who are committed to challenging gender oppression. This means that the entrenched professional cultures, norms and structures that benefit men are left unchallenged.
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As a percentage of all advocates for particular racial groups, white women account for 22 % of white advocates, African women 23 %, coloured women 45 % and Indian women 11.6 % of all Indian advocates.
Sonke Gender Justice, an NGO, has since asked for his dismissal as a magistrate. See Carstens (2014).
Clive Plasket, a white man, was seen as treated in a hostile manner while Nigel Willis had an interview regarded as superficial and amiable.
Three other prominent media stories on judges during this period have been the disciplinary action against black male judges, Hlope, Motata and Poswa.
Described as “a group of alumni of higher education and further education institutions committed to transformation of education” Hawkey (2013).
To ‘braai’ means to barbeque. The image is both a caricature of white male behaviour and a veiled reminder of the torture of black people under apartheid. On the one hand it refers to the stereotype of white South African men drinking together around a barbeque, while complaining about the incompetence of black people. On a deeper level, however, the image references the activities of a secret apartheid police unit which had its headquarters on a farm called Vlakplaas. According to testimony at the Truth and Reconciliation Commission this unit abducted, tortured and sometimes murdered black anti-apartheid activists and often celebrated their successes by drinking around a braai afterwards (see Pauw 1997).
The Women Empowerment and Gender Equality Bill 50 of 2013 may provide an opportunity to lobby for the gender composition of the JSC itself to be more representative.
See http://www.dgrujudgements.co.za/ accessed on 18 November 2014.
Personal communication 7 July 2014.
Personal communication 24 June 2014.
Albertyn, Catherine and Bonthuys, Elsje. Forthcoming 2016. South Africa: A transformative constitution and a representative judiciary. In Gender and the judiciary in Africa: From obscurity to parity? ed. Gretchen Bauer, and Josephine Dawuni. Routledge: New York.
Albertyn, Catherine. 2014. Judicial diversity. In The judiciary in South Africa, ed. Cora Hoexter, and Morné Olivier, 245–287. Cape Town: Juta.
Albertyn, Catherine. 2007. Substantive equality and transformation in South Africa. South African Journal on Human Rights 23: 253–276.
Backhouse, Constance. 2003. The chilly climate for women judges: Reflections from the Ewanchuck case. Canadian Journal of Women and the Law 15: 167–193.
Basson, Adriaan and Piet Rampedi. 2011. Ramphele fears Mogoeng’s gender views. City Press. 11 Sept 2011.
Beal, Jo, Shireen Hassim, and Alison Todes. 1989. ‘A bit on the side?’ Gender struggles in the politics of transformation in South Africa. Feminist Review 33: 30–56.
Bonthuys, Elsje. 2008a. The personal and the judicial: Sex, gender and impartiality. South African Journal on Human Rights 24: 239–262.
Bonthuys, Elsje. 2008b. Institutional openness and resistance to feminist arguments: The example of the South African Constitutional Court. Canadian Journal of Women and Law 20: 1–36.
Bonthuys, Elsje. 2013. Gender and the Chief Justice: Principle or pretext? Journal of Southern African Studies 39: 59–76.
Boya, Siya. 2011. JSC believes Majiki has what it takes. Daily Dispatch. 27 October.
Brenner, Hannah and Renee Newman Knake. 2011–2. Rethinking gender equality in the legal profession’s pipeline to power: A study on media coverage of Supreme Court nominees (Phase I, The introduction week). Temple Law Review 84: 325–384.
Calland, Richard and Chris Oxtoby. 2013. Rational, consistent process for choosing judges needed. Business Day. 18 April.
Carstens, Sonja. 2014. Bekyk landdros wat onderhoud weier. Beeld. 27 May.
Cowan, Ruth B. 2006. Women’s representation on courts in the Republic of South Africa. University of Maryland Law Journal of Race, Religion, Gender and Class 6: 291–317.
Davis, Dennis. 2013. The judiciary is a benchmark for society. Mail & Guardian. 19 April.
Department of justice and constitutional development ‘Heads of superior courts’. www.judiciary.org.za/heads-of-superior-courts.html. Accessed 3 June 2015.
Du Bois, François. 2006. Judicial selection in post-apartheid South Africa. In Appointing judges in an age of judicial power: Critical perspectives from around the world, ed. Kate Malleson and Peter H. Russell, 280–312. Toronto: University of Toronto Press.
Du Plessis, Charl. 2013d. Women come in for JSC grilling. City Press. 13 October.
Du Plessis, Charl. 2013a. White men can’t judge. City Press. 7 April.
Du Plessis, Charl. 2013b. Beware agents of racism. City Press. 14 July.
Du Plessis, Charl. 2013c. Women judges still do ‘double shift’. City Press. 21 April.
Dube, Dudu. 2013. Women exclusion a ‘culture’. New Age. 8 March.
Dugard, John. 1978. Human rights and the South African legal order. Princeton: Princeton University Press.
Eberts, Mary. 2006. Women in law: Retreat and renewal. In Calling for change: Women, law and the legal profession, ed. Elizabeth Sheehy and Sheila McIntyre, 83–93. Ottawa: University of Ottawa Press.
Feenan, Dermot. 2008. Women judges: Gendering judging, justifying diversity’. Journal of Law and Society 35: 490–519.
Forsythe, Christopher. 2014. The judiciary under apartheid. In The judiciary in South Africa, ed. Cora Hoexter, and Morné Olivier, 26–67. Cape Town: Juta.
Gaitskell, Debby, and Elaine Unterhalter. 1989. Mothers of the nation: A comparative analysis of nation, race and motherhood in Afrikaner nationalism and the African National Congress. In Woman-Nation-State, ed. Floya Anthias, and Nira Yuval-Davids, 58–79. London: MacMillan.
Gouws, Amanda. 2005a. Introduction. In (Un)thinking citizenship: Feminist debates in contemporary South Africa, ed. Amanda Gouws, 1–17. Aldershot: Ashgate.
Gouws, Amanda. 2005b. Shaping women’s citizenship: Contesting the boundaries of state and discourse’. In (Un)thinking citizenship: Feminist debates in contemporary South Africa, ed. Amanda Gouws, 71–90. Aldershot: Ashgate.
Gouws, Amanda. 2006. The state of the national gender machinery. In State of the nation: South Africa, ed. Sakhela Buhlungu, 143–168. Pretoria: HSRC.
Graycar, Reg. 2012. Gender, race, bias and perspective: Or, how otherness colours your judgment. In Women in the judiciary, ed. Ulrike Schultz and Gisela Shaw, 71–84. London: Routledge.
Hassim, Adila. 2012. JSC: A few good women needed. Mail & Guardian. 30 November.
Hassim, Shireen. 2005. Voices, hierarchies and spaces: Reconfiguring the women’s movement in democratic South Africa. Politikon 32: 175–193.
Hawker, Dianne. 2011. Acting judge bias blamed for lack of women on bench. Sunday Independent. 16 October.
Hawker, Dianne. 2013. Zuma to choose Concourt judge from all-male list. Sunday Independent. 24 February.
Hawker, Dianne. 2012. Why are there so few SA women judges? Sunday Independent. 14 October.
Hoexter, Cora. 2014. The structure of the courts. In The judiciary in South Africa, ed. Cora Hoexter and Morné Olivier, 1–25. Cape Town: Juta.
Hoffman, Paul. 2013a. Cadres still pursue a one-party state. Sunday Tribune. 3 March.
Hoffman, Paul. 2013b. Chief Justice must deal with Izak Smuts’ arguments. Cape Times. 16 April.
Hull, Gloria T., Patricia Bell, and Barbara Smith (eds.). 1982. All the women are white, all the blacks are men but some of us are brave: Black women’s studies. New York: The Feminist Press.
Hunter, Rosemary. 2006. The high price of success: The backlash against women judges in Australia. In Calling for change: Women, law and the legal profession, ed. Elizabeth Sheehy and Sheila McIntyre, 281–301. Ottawa: University of Ottawa Press.
Hunter, Rosemary. 2012. Can feminist judges make a difference? In Women in the judiciary, ed. Ulrike Schultz and Gisela Shaw, 6–35. London: Routledge.
Jansen, Leanne. 2014. Acting judge in hot water over paternity row. Mercury. 11 April.
Kadalie, Rhoda. 2011. The JSC’s apparatchiks on display. Politicsweb. 3 October. http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=256016&sn=Detail&pid=71616. Accessed 18 November 2014.
Kenney, Sally J. 2012. Choosing judges: A bumpy road to women’s equality and a long way to go. Michigan State Law Review 1499–1528.
Khan, Tamar. 2013. Legal notables protest against lack of women on JSC’s short list. Business Day. 18 February.
Kuzwayo, Muzi. 2013. Beaten by the black syndrome. Sunday Times. 21 April 2013.
Law Society of South Africa. 2014. Legal education and development 2013/2014 statistics. http://www.lssalead.org.za/upload/STATS_DOCUMENT_2014.pdf. Accessed 17 November 2014.
Mabuza, Ernest. 2012. Opposition plans to discuss Mogoeng nomination. BDLive. 6 August. http://www.bdlive.co.za/articles/2011/08/30/opposition-plans-to-discuss-mogoeng-nomination;jsessionid=3F2D2966F189B70F5B7B005B21C688CF.present1.bdfm. Accessed 18 November 2014.
Malala, Justice. 2014. No way is this transformation. The Times. 13 Oct 2014.
Malleson, Kate, and Peter H. Russell (eds.). 2006. Appointing judges in an age of judicial power: Critical Perspectives from around the world. Toronto: University of Toronto Press.
Malleson, Kate. 2006. Rethinking the merit principle in judicial selection. Journal of Law and Society 33: 126–140.
Masengu, Tabeth and Alison Tilley. 2013. JSC: Cast the net wider to find more women. Daily Maverick. 8 October.
Masengu, Tabeth. 2012a. Concourt a good place to start transformation. Sunday Independent. 3 June.
Masengu, Tabeth. 2012b. Change sexist judicial recruitment system. Sunday Independent. 14 October.
Masengu, Tabeth. 2013. More women on bench sign of progress. Sunday Independent. 20 October.
McIntyre, Sheila. 2006. Coalition politics: Equality in struggle. In Calling for change: Women, law and the legal profession, ed. Elizabeth Sheehy and Sheila McIntyre, 377–391. Ottawa: University of Ottawa Press.
Meintjes, Sheila. 2005. Gender equality by design: The case of South Africa’s Commission on Gender Equality. Politikon 32: 259–275.
Mkhabela, Mpumelelo. 2011. A judge at odds with progress. Sowetan. 31 August.
Mooki, Omphitlhetse. 2011. Female judge selected—she met the criteria. Star. 21 April.
Motala, Ziyad. 2013. JSC at crossroads of transformation. Sunday Independent. 21 April.
Nair, Vikraman. 2001. The search for equality through constitutional process: The Indian experience. Acta Juridica 255–272.
Narsee, Aarti J. 2013. Judicial sexism probe delays raising legal eyebrows. Times Live. 22 August.
October, Alicestine. 2013. Vyf van nege nuwe regters is vroue. Burger. 17 May.
Olivier, Morné, and Cora Hoexter. 2014. The Judicial Service Commission. In The judiciary in South Africa, ed. Cora Hoexter, and Morné Olivier, 154–199. Cape Town: Juta.
Olivier, Mornè. 2013. A perspective on gender transformation of the South African judiciary. South African Law Journal 130: 448–464.
Pauw, Jacques. 1997. Into the heart of darkness: Confessions of apartheid’s assassins. Johannesburg: Jonathan Ball.
Posel, Deborah. 2001. Race as common sense: Racial classification in twentieth-century South Africa. African Studies Review 44: 87–113.
Rabkin, Franny. 2011a. Four judges vie for two appeal court seats. Business Day. 2 March.
Rabkin, Franny. 2011b. More women seek Gauteng judge posts. Business Day. 1 April.
Rabkin, Franny. 2011c. Candidate tells JSC of ‘uncollegial’ Afrikaans. Business Day. 8 April.
Rabkin, Franny. 2011d. Concern over ‘briefing patterns’. Business Day. 17 October.
Rabkin, Franny. 2011e. Aspirant judge rejects advocate’s complaints. Business Day. 19 October.
Rabkin, Franny. 2011f. Women lawyers get less work in Labour Court, JSC hears. Business Day. 19 October.
Rabkin, Franny. 2011g. Two women judges for labour court. Business Day. 26 October.
Rabkin, Franny. 2013a. JSC may silence critics as women make the list. Business Day. 28 February.
Rabkin, Franny. 2013b. White men can be judges in SA, says JSC. Business Day. 10 April.
Rabkin, Franny. 2013c. JSC backs only male candidate for top post. Business Day. 11 April.
Rabkin, Franny. 2014a. Imbalance in gender profile of courts set to persist. Business Day. 7 April.
Rabkin, Franny. 2014b. JSC unable to appoint top judge for Free State. Business Day. 8 April.
Rabkin, Franny. 2014c. JSC candidate tries to explain refusal to pay maintenance. Business Day. 9 April.
Rabkin, Franny. 2014d. Few magistrates make the grade with JSC. Business Day. 10 April.
Rabkin, Franny. 2014e. Constitutional Court seeks woman justice. Business Day. 9 May.
Rackley, Erika. 2002. Representations of the (woman) judge: Hercules, the little mermaid, and the vain and naked emperor’. Legal Studies 22: 602–624.
Rickard, Carmel. 2005. Sexism in the judiciary. Sunday Times. 23 October.
Samodien, Leila. 2012. City advocate slams racism. Cape Times. 18 October.
Samodien, Leila. 2013a. Gloves off in judges row. Cape Times. 15 April 2013.
Samodien, Leila. 2013b. Women lawyers’ uphill battle. Cape Times. 9 October.
SAPA. 2013a. Smuts ‘was correct’ to resign over JSC transformation row. Mail & Guardian. 15 April.
SAPA. 2013b. JSC lashed for slow pace of gender transformation. Mail & Guardian. 21 April.
Schroeder, Fatima. 2013. More women poised to join ranks of judges. Sunday Independent. 13 October.
Schultz, Ulrike, and Gisela Shaw (eds.). 2012. Women in the judiciary. London: Routledge.
Schultz, Ulrike, and Gisela Shaw (eds.). 2013. Gender and judging. Oxford: Hart Publishing.
Seale, Lebogang. 2013. Zuma blasted at Kathrada lecture. The Star. 10 October.
Serjeant at the Bar. 2012. Race-based bequests set ugly precedent. Mail & Guardian. 26 October.
Serjeant at the Bar. 2013. Concourt vacancy exposes the lip service paid to gender equity. Mail & Guardian. 7 February.
Sheehy, Elizabeth, and Sheila McIntyre (eds.). 2006. Calling for change: Women, law and the legal profession. Ottowa: University of Ottawa Press.
Staff Reporter. 2012. Concerns raised over Concourt four. Mail& Guardian. 14 June.
Statistics South Africa. 2013. Stats in brief 2013. Pretoria: Statistics South Africa.
Tolsi, Niren. 2011a. JSC begins to grasp the meaning of a non-racial judiciary. Mail & Guardian. 29 October.
Tolsi, Niren. 2011b. Lack of female judges worries JSC. Mail & Guardian. 25 October.
Tolsi, Niren. 2012a. Few takers for empty seat on the bench. Mail & Guardian. 9 March.
Tolsi, Niren. 2012b. Is the JSC courting favourites? Mail & Guardian. 26 April 2012.
Tolsi, Niren. 2012c. Top judicial interviews bring issues of race, transformation to the fore. Mail & Guardian. 19 October.
Tolsi, Niren. 2013a. Gauntlett culled from ConCourt short list. Mail & Guardian. 22 February.
Tolsi, Niren. 2013b. JSC defends transformation imperatives for the judiciary. Mail & Guardian. 9 April.
Tolsi, Niren. 2013c. JSC conflict laid bare by inconsistency. Mail & Guardian. 12 April.
Tolsi, Niren. 2013d. JSC’s Izak Smuts resigns after transformation row. Mail & Guardian. 12 April.
Tolsi, Niren. 2013e. Mogoeng lambastes JSC selection method critics. Mail & Guardian. 15 April.
Tolsi, Niren. 2013f. JSC appoints woman to High Court bench. Mail & Guardian. 8 October.
Tolsi, Niren. 2013g. JSC recommends seven women for Bench. Mail & Guardian. 10 October.
Tolsi, Niren. 2013h. JSC is getting to grips with gender. Mail & Guardian. 11 October.
Tolsi, Niren. 2014. JSC recommends three for Appeal Court bench. The Times. 9 April.
Tsunke, Sanku and Edwin Naidu. 2014. Gender shift on bench a must. New Age. 9 October.
Wesson, Murray, and Max Du Plessis. 2008. Fifteen years on: Central issues relating to the transformation of the South African judiciary. South African Journal on Human Rights 24: 187–213.
My thanks to Cathi Albertyn, Catherine Burns, Sarah Charlton, Natasha Erlank, Shireen Hassim, Caroline Jeannerat, Srila Roy and the anonymous reviewers of the article for helpful comments and to Jonathan Campbell, Katie Hindle, Vivienne Lawack, Tabeth Masengu, Mornè Olivier, Boni Meyersfeld, Engela Schlemmer and Kirsten Whitworth for sharing information.
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Bonthuys, E. Gender and Race in South African Judicial Appointments. Fem Leg Stud 23, 127–148 (2015). https://doi.org/10.1007/s10691-015-9285-5
- South Africa
- Judicial Services Commission
- Women judges