CGE Lack of Gender Transformation in The Judiciary Investigative Report

CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 1
LACK OF GENDER
TRANSFORMATION
IN THE JUDICIARY
INVESTIGATIVE REPORT
2016
LACK OF GENDER TRANSFORMATION IN THE JUDICIARY
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 Respondents1
“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 courses2. Judge Satchwell
1
As per the lodged complaint
2
Omphitlhetse , Mooki , The Star Newspaper , August 2012: “ Women can do it too”
3
CONTENTS PAGES
1. Introduction 6
2. Parties 7
3. Nature and Background to the Complaint 10
4. Legal Framework 12
5. Gender Transformation in the Judiciary –
the current status quo (institutional analysis) 28
6. Investigation / Steps taken 33
7. Findings and recommendations 58
8. Conclusion
61
9. 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
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 24596 126
A 11 Responses to the Draft Investigative Report 143
5
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”).
1.2. 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
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”3.
2. THE PARTIES
2.1 The Complainants:
2.1.1 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 centres4
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”.
4
http://www.dgru.uct.ac.za/dgru/about/overview#sthash.qzICXgzD.dpuf
7
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 short-
listed 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 bench5
2.1.2 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 http://www.dgru.uct.ac.za/dgru/focus/judicial_governance/appointments
8
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”7
2.2 The Respondents:
The Complainants list the following as Respondents as per the lodged

complaint: -
2.2.1 The President of the Republic of South Africa (hereinafter

referred to as the “Presidency”), his Excellency President
6
http://www.genderjustice.org.za/about-us/vision-a-mission/
7 http://www.genderjustice.org.za/policy-development-advocacy/strengthen-south-africa-judiciary/
9
Jacob Zuma.
2.2.2 Minister of Justice and Correctional Services (hereinafter

referred to as the “Ministry”), Honourable Minister Masutha.8
2.2.3 Judicial Service Commission (hereinafter referred to as the

“JSC”).
2.2.4 Chief Justice Mogoeng Mogoeng (hereinafter referred to as

the “CJ”): Constitutional Court.
3. NATURE AND BACKGROUND OF COMPLAINT
On the 12th of October 2012, DGRU and SONKE lodged a complaint with the
CGE9. 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 2009-2012,
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 2384.
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
• 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 2000. 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 interest10
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
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 2005.
7. 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
4.1.1. Convention on the Elimination of All Forms of Discrimination against

Women
12
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) To vote in all elections and public referenda and to be eligible

for election to all publicly elected bodies;
(b) 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;
(c) To participate in non-governmental organizations and associa-

tions concerned with the public and political life of the country.
Further cognisance must be taken of the concluding observations

of the CEDAW Committee’s 48th session held in Geneva, Switzerland
in the response to South Africa’s Periodic Country Report which
covered the period of 1998 to 2008. 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
4.1.2 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.”
4.1.3 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.
4.1.4 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.
4.1.5 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
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.
4.2. 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:
4.2.1. 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
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.
4.2.2. 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
4.3.1. 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
“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
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
“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
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
composition11 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
5. 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 Commission12.
7. 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
2. 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
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
3. 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

procedure13, 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
3.4.2 Judicial Service Commission Act 9 of 1994
The JSC is further enabled by Act 9 of 1994. 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 Minister14 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: -
Shortlists suitable candidates

and invites them for
interviews. Professional
bodies and members of the
JSC publishes a public public have the opportunity
notice giving details of to comment prior to the
the vacancies that interviews or to make
exist and calls for representations concerning
nominations 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. 24596, 27 March 2003
25
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 candidates15 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
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 201017 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?
17
10 September
27
(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
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 2012. 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 judiciary21: -
19
CALS & Foundation for Human Rights Report “Transformation of the Legal Profession” (2014) at 6.
20
21
Statistics provided by the JSC in 2013
29
COURT MALE FEMALE

Constitutional Court 9 2
Supreme Court of Appeal 19 8
Northern Cape 4 3
Eastern Cape: 12 5
Grahamstown & Port Elizabeth
Bisho 3 1
Mthatha 4 3
Western Cape 23 10
North West 3 3
Free State 10 4
North & South Gauteng 62 22
KwaZulu-Natal 18 9
Labour Court 6 4
Total 173 74
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
160 Men
140 Women
Progression / Comparison: 120
100
1994 to 2013
80
60
40
20 Men
0
1994 2013
22
For the compilation of CGE’s CEDAW baseline report.
30
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 2010. 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 time23”.
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
COUNCIL / BAR FEMALE MALE

Cape Bar Council 109 343
Port Elizabeth Bar 13 52
Grahamstown Bar Council 4 23
Free State Bar Council 9 55
Northern Cape Bar 3 4
Johannesburg Bar Council 245 687
Pretoria Bar Association 70 436
KwaZulu Natal Bar 70 223
North West Bar 5 14
Transkei Bar 3 25
Bisho Bar 3 16
Total 601 1878
The Law Society of South Africa (LSSA) noted a total membership of 21 463 of
which 7577 being female and 13 717 males24.
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 treated25. To date there are no substantive
remedies mentioned for the lack of female representation within the judiciary26.
Updated statistics regarding paucity in the judiciary27 As received from the JSC
in April 2016.
24
Statistics provided by JSC as at June 2013
25
http://www.ghjru.uct.ac.za/pdf/More_women_on_the_bench_offer_a_better_gender_perspective.pdf
26
http://www.iol.co.za/news/crime-courts/more-women-judges-needed-1.1411929
27
As received from the JSC in April 2016.
32
PERMANENT JUDGES
80
AFRICAN MALE
70
AFRICAN FEMALE
60
NUMBER OF JUDGES
COLOURED MALE
50
COLOURED FEMALE
40
INDIAN MALE
30
INDIAN FEMALE
20 WHITE MALE
10 WHITE FEMALE
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 taken28

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
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 response29. 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
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 hereunder30:-
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 1 – 3
35
6.2 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 briefs31
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 Profession32”: -
“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
Initiated by the Western Cape branch of the National Association of Democratic Lawyers (NADEL), in partnership
32
with Foundation for Human rights.
36
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)
34
http://www.news24.com/SouthAfrica/News/New-solicitor-general-position-will-drive-transformation-of-the-legal-
profession-Masutha-20150519
35
Published for comment in 2012
37
It is discouraging to note that the Ministry in their response mentioned that

out of 1661 magistrates appointed, 687 have been women36. 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 female37.
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?
36
59 % women.
37
http://www.gov.za/deputy-minister-john-jeffery-gender-transformation-legal-profession-seminar
38
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
implementation38.
Currently only sections 1 and 2 (ss 96 – 109) of chapter 10 are in operation

as from the 1st February 2015. 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;
38 http://www.lssa.org.za/index.php?q=con,367,History_of_the_Legal_Practice_Act
39
(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 itself40.
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
40
- 14 men to 16 women.
40
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 30th September
2015 and 1st 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 14th to the 15th
December 2015. 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
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 R139 436 66 compared to
R515 2967 83 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
6.3 Judicial Service Commission
It is noted that the CJ41 responded to the CGE in his capacity as

Chairperson of the Judicial Service Commission42. 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 JSC43, 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
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: how would one assess energy and
motivation?
44
http://www.dispatchlive.co.za/news/little-time-to-check/
44
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 2016. 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 2016.
45
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 2013
47
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 305.
46
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
• Judge Presidents of the High Courts and Appellant Division South

Africa48.
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 18th of July 2014, 37% of practising
attorneys were women, an increase of 5 % in five years from the 32 %
in 2009. 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
1st of August 2016.
48
Copies of the responses and unanswered questionnaires are annexed hereto marked Annexures A 4 – 9
48
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 Africa49 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
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 training50 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
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 2013. On an ongoing basis, the
51
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
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
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 Hearings51 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’52.
5
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
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) lawyers53 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
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.56 .........
55
Ibid at 22-23.
56
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
57
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 Hearing57 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 them58.
7. 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 1996
58
De Vos, P “Gender Transformation, what needs to be done”
58
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 Judges60 .
3. 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.
Rickard C, Women Judges tell of Struggle For Acceptance, Sunday Times, 10 April 2005,
59
wide net of discretion afforded to Judge Presidents – this is prior to the JSC’s updated response. The CGE has
60
called for the list of criteria / process in securing Acting Judges.
59
6. 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
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
Signed at Constitution Hill on the 5th day of December 2016.
Ms Keketso Maema
Chief Executive Officer: Commission for Gender Equality
No.2 Kotze street
Women’s Jail, Eastwing
Constitution Hill
Braamfontein
Johannesburg
Tel: 011 403 7182
Fax: 011 4035609
Email: keketso@cge.org.za
62
Annexure 1 Response from the Presidency of the Republic of South Africa
Annexure 2 Response from the Minister of Justice and Constitutional Development
Annexure 3 Response from the Judicial Service Commission
Annexure 4 Questionnaire to the Black Lawyers Association
Annexure 5 Questionnaire to the Law Society of South Africa
Annexure 6 Questionnaire to the South African Charter of the International Associate of Women Judges
Annexure 7 Questionnaire to the South African Judicial Education Institute
Annexure 8 Questionnaire to the National Association of Democratic Lawyers
Annexure 9 Questionnaire to the Judge Presidents of the High Courts and

Appellant Division South Africa
Annexure 10 Judicial Service Commission, Procedure of Commission,

Regulation Gazette No 24596
Annexure 11 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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JOHANNESBURG (HEAD OFFICE) KWAZULU-NATAL (DURBAN)

2 Kotze Street, 40 Dr. A.B Xuma Road, Suite 313,
Women’s Jail, East Wing Commercial City Durban 4001
Constitution Hill, Tel: +27 31 305 2105
Braamfontein 2017, Fax: +27 31 307 7435
South Africa
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Fax: +27 43 722 3474 Nelspruit 1200
Tel: +27 13 755 2428
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Tel: +27 51 430 9348 Tel: +27 53 832 0477
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CGE Lack of Gender Transformation in The Judiciary Investigative Report

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CGE Lack of Gender Transformation in The Judiciary Investigative Report

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

LACK OF GENDER TRANSFORMATION IN THE JUDICIARY

Complaint Ref No: WC/DRGU & Sonke/2012/KL

Democratic Governance and Rights Unit and

“There’s a lot of sexism. If you are a woman you have to go

LACK OF GENDER TRANSFORMATION IN THE JUDICIARY

3. Nature and Background to the Complaint 10

5. Gender Transformation in the Judiciary –

the current status quo (institutional analysis) 28

6. Investigation / Steps taken 33

7. Findings and recommendations 58

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

LACK OF GENDER TRANSFORMATION IN THE JUDICIARY

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

A10 Judicial Service Commission, Procedure of

A 11 Responses to the Draft Investigative Report 143

LACK OF GENDER TRANSFORMATION IN THE JUDICIARY

1.1. The Commission for Gender Equality (hereinafter referred to as “the

12.1 Promote respect for gender equality and the protection,

12.2 Monitor, investigate, research, educate, lobby, advise and

12.3 Assess the observance of gender equality.

1.3 The Commission for Gender Equality Act 39 of 1996, as amended

“The slow pace of gender transformation of the judiciary cannot be

LACK OF GENDER TRANSFORMATION IN THE JUDICIARY

2.1 The Complainants:

2.1.1 Democratic Governance and Rights Unit (hereinafter

Upon examination of the official website of the

The DGRU is an applied research unit within the Public Law

LACK OF GENDER TRANSFORMATION IN THE JUDICIARY

DGRU recognises judicial governance as a special focus because of

The DGRU’s focus on judicial governance has led to it making

2.1.2 Sonke Gender Justice Network (hereinafter referred to as

As per the above, when examining the Complainant’s official website

LACK OF GENDER TRANSFORMATION IN THE JUDICIARY

overview of the Network:-

Sonke has an expanding presence on the African continent and a

Like DGRU, SONKE notes as part of its scope of work is the

“Sonke is advocating for gender transformation in the judiciary. We

2.2 The Respondents:

The Complainants list the following as Respondents as per the lodged

2.2.1 The President of the Republic of South Africa (hereinafter

LACK OF GENDER TRANSFORMATION IN THE JUDICIARY

2.2.2 Minister of Justice and Correctional Services (hereinafter

2.2.3 Judicial Service Commission (hereinafter referred to as the

2.2.4 Chief Justice Mogoeng Mogoeng (hereinafter referred to as

3. NATURE AND BACKGROUND OF COMPLAINT

LACK OF GENDER TRANSFORMATION IN THE JUDICIARY

• The right not to be unfairly discriminated on the grounds of gender as

• Article 2 of the Protocol to the African Charter on Human and People’s

1. That the CGE constitute an appropriate investigation into what appears

3. That the CGE establishes a monitoring capability in respect of the

LACK OF GENDER TRANSFORMATION IN THE JUDICIARY

appointments to the judiciary and to ensure that there is no gender

5. That the CGE conducts an assessment of South African’s compliance with

4.1. International Legal Framework