I am not sure whether this is an apocryphal story, but I was told that in the late nineteen nineties a women judge was appointed to one of the High Courts in South Africa. She was the first women judge appointed in that High Court. On her first day at the office, she discovered that the court building did not contain toilets for female judges. She had to slip into the men’s toilet – to great consternation of her male colleagues.
When the building was built decades earlier during the apartheid era no one had thought that a woman would ever become a judge in South Africa. Women had to stay at home and raise children and organise tea parties while their husbands did the “real work” (as if raising children is not a hell of a job – although grossly underpaid).
In 1994 South Africa only had one female judge – Leonora van den Heever – and although things look different sixteen years later, we still have a very long way to go to make the bench more representative in terms of gender. While some members of the Judicial Services Commission (JSC) sometimes ask the white male candidates whom they do not like (because they are either too conservative or too progressive) why they applied at all, given the need for racial transformation, I have yet to hear a member of the JSC asking male candidates why they had bothered to apply given the need for the gender transformation of the bench.
Franny Rabkin, in an excellent article in Business Day, points out that as of November last year of 216 permanent judges, only 49 were women. This means that less of 25% of our judges are female while more than half the judges are black (broadly speaking at least). As Rabkin points out:
A frequently heard argument is that the pool of women lawyers is just not large enough. However, a key obstacle to the appointment of more women as judges is the widespread failure to appoint women as acting judges — a key foot in the door for later permanent appointment, says Jennifer Williams of the Women’s Legal Centre, a legal advocacy body. “It is a huge obstacle ,” Williams says .
It is of course true that the JSC has indicated that having acted on the bench was one of the main criteria used by it to decide whether a candidate was suitably qualified for appointment to the bench. This raises two questions. First, should the emerging practice of the JSC to appoint only those candidates who have previously acted on the bench be dropped? Second, why is it that so few women are actually given acting appointments?
On the first question I am agnostic. An argument could be made that acting appointments are necessary because such appointments help to expose candidates to the rigours of the job and can also give an indication whether they are up to the job. On the other hand, given the fact that all but one of the Judge President’s are male and given further that some of those Judge Presidents hold deeply patriarchal views, the Judge Presidents may very well become gatekeepers who limit the opportunities for women to be elevated to the bench.
(And even where Judge President’s are female there is no guarantee that they would promote the appointment of female acting judges because in a world dominated by men, I am told, some women in powerful positions feel threatened by other successful women because they believe that there is usually only space for a few women to shine. Keeping other women out thus becomes a matter of professional survival.)
On the second question, many lawyers will point out that there are far fewer female advocates and hence that the pool of candidates from whom judges are normally appointed contains only a small pool of women. This is correct. The bigger question, however, is why this should be the case.
If one disregards the usual sexist arguments that fewer women are emotionally or intellectually capable of withstanding the rigours and competitive atmosphere at the Bar, one is left with two other explanation. First, the patriarchal and sexist attitudes of some male advocates create a hostile environment for women lawyers who do not want to work with colleagues who make crude jokes and who patronise and objectify women.
In that world, the most successful women lawyers are often perceived to be the one’s who can “fit in” and are accepted because their male colleagues deem them to be “honorary men” (much like black professionals thrive in a racist environment by becoming “honorary whites”). I call this the Margaret Thatcher phenomenon: some women can become successful because they can demonstrate to the men around them that they are just like them and that they have the necessary balls, figuratively speaking.
Second, because advocates can only thrive if they are briefed by attorneys, the briefing patterns also play a role in depriving women of the interesting and complex work necessary for building a thriving practice. Many women advocates who go to the Bar are expected to focus on divorces and family matters and are not expected to get involved in commercial litigation. The old boys network also influences who is briefed and if one does not play golf or did not go to the right school, one may find oneself doing mundane work – if one is lucky enough to get work at all.
Of course, for black women this phenomenon is even more pronounced. The female advocates who stick around and make a living are also deemed with suspicion by some of the more sexist attorneys and advocates who assume that they could not possibly be as good as their male counterparts. To really make a name as a women advocate, one has to be far better than the average male colleague.
Although I am not claiming that all male lawyers are sexist pigs (although some are), and although I do not wish to generalise, the lack of suitably qualified female candidates for appointment to the bench clearly shows that the legal profession still has a long way to go to rid itself of patriarchal notions of male superiority and excellence. At least black lawyers have the Black Lawyers Association (BLA) to look after their interests, but women lawyers do not have a formal institution with the same clout as the BLA that might promote the rights and interests of female lawyers.
In the light of the above it is actually surprising that almost a quarter of judges are indeed female.
The question to be asked of the profession is what it is planning to do to address the problem of gender representation. But one may also ask female lawyers themselves why they have not orgnanised themselves into a Women’s Lawyers Association to push gender transformation in the legal profession? Is it perhaps that they are scared that they will be ostracised by their male colleagues if they do?
The Constitution is clear: BOTH racial and gender should be considered when appointing judges to the bench. But as with race, a sufficient number of suitably qualified women candidates will only be found if the legal profession itself takes drastic action to open up the profession to more women lawyers.
“The Constitution is clear: BOTH racial and gender should be considered when appointing judges to the bench.” Just a correction here Prof. the Constitution uses the word “must” and not should. You will note that Franny Rabkin refers to this as a “constitutional mandate”. This is due to the strict wording of the Constitution. The Interpretation of Statutes makes a distinction between shall and must and I do not intend to regurgitate that debate here. Coming to the substance of your article, I think what should be challenged is the the JSC’s preference of appointing lawyers coming from the bar. It is common knowledge that most lawyers are housed in the law societies and not the bar, and it is quite evident from the past appointments that there are few appointments with origin from the law socities. In the past, the JSC used to expand its pool of candidates by even considering legal academics, e.g. Carol Lewis now in SCA., therefore my question is why such practice has stopped? She acquired good experience in the High Court before gaining promotion to the SCA. It is my view that the long term solution lies in the long proposed but abandoned merger of these two noble profession one called attorneys and the other called advocates. Maybe it is time to revive this shelved Bill and take the bull by its horns.
Pierre, why is it that whenever there is a perceived shortcoming in “representivity”, it is always someone elses fault – in this case those beastly white men? Maybe women might just prefer to do other things, like motherhood for example. If you were to try and exercise just a smidgeon of objectivity and cast your jaundiced net wider, you might notice that this applies across many disciplines and vocations. Women are also numerically “underrepresented” among welders, bricklayers, engineers, miners, boiler makers and chartered accountants. Are you now suggesting that this is part of some large male conspiracy to suppress and repress women rather than women simply exercising a freedom of choice?
A few years ago, the Comrades Marathon had an entry number of about 15500. Of those only about 4500 were female. Now there is absolutely no impediment to anyone entering this event, male or female. why then were there not 7750 women? Perhaps women, as evidenced by this example, simply prefer to do other things and this applies also to the judiciary and the above-mentioned vocations. Perhaps also, Pierre, although this might be a heretical notion to you, maybe men, in the main, do have the chops to make the best judges. In the absence of research data, one cannot simply assume this not to be the case.
Notwithstanding what the constitution may say, why should the morphology of one’s genitalia be deemed a primary determinant of whether one is a judge or not? Furthermore, you appear to have what may even be an unhealthy preoccupation with sex and/or gender in relation to jobs and employment choices. I thought we had managed to cure you of your obsessive-compulsive preoccupation with social engineering and quotas.
Finally, would you care to name a few of these male lawyer sexist pigs to whom you allude?
Good points Graham, I’m not a sexist but I still maintain that appointments into the bench should be made on consideration of one’s expertise/competency which i think is lacking in respect of women, I know judge O’Regan is great jurist and I enjoy reading her progressive judgments but she is one among the few.
Graham, the libel laws prevent me from naming names. If you were a lawyer I might have put you on the list though. Your comments displays a blissfull ignorance of academic and popular writing which demonstrates how structural factors disadvantage women in any society, limit their career opportunities and “guide” them into making “choices” that lead to the slave labour otherwise known as being housewives and raising children (because they do this for free). If women do work and they are married and have children gender stereotypes require most of them to do double work (at the office and taking a disproportionate responsibility for the caring for children and the home) and fundamentally hamper their opportunities to excell. Workplaces often do not provide child care and child care costs are not tax deductable (both of which surely would have been the case if women and not men controlled the economy or if most men were the primary caregivers of children). My “obsession” is with fairness – yours with the perpetuation of male (white?) priviledge. In my book I think I would rather be on the side of fairness and justice than on the side of oppression, but you might differ of course.
Prof asseblief man:
Explain this to me once and for all (in lay men’s language) if possible – WHAT IS THE DIFFERENCE BETWEEN AN ATTORNEY AND AN ADVOCATE ? related, what does an attorney have to do to become an advocate and so on and so on?…Remember Prof, I am just a poor nurse (well – and a shopsteward) so you guys take it for granted that we all know these things !!!
“If one disregards the usual sexist arguments…”
“…I do not wish to generalise…”
If wishes were horses…
Spuy
In short – an attorney, requires a basic degree (nowadays LLB) and must do two years of articles (clerkship/internship) at a next to nothing pay and then has to pass an exam given by the Law Society. When all this is complete, he/she applies to the High Court to be admitted as such. From there on, an attorney can appear in any court on behalf of a littigant, give legal advice against pay, draw up contracts, etc. Kind of “Jack-o-all-trades” bussiness.
An advocate, requires a five year law degree (LLB – note the new LLB is only four years!) and can then upon application apply to the High Court to be admitted as such. From there on, an advocate can appear in any court on behalf of litigants, give legal advice etc. Advocates are normally not “Jacks-o-all-trade” and are mainly involved in littigation. Before one can join the Bar as an advocate, one needs to do an internship under an existing Bar Society member (usually, not always, an SC) at no pay at all. Thereafter an exam must be taken before one is allowed to practice as an advocate of the Bar. Other advocates may practice without becoming members of the Bar, but are subject to discipline of the Bar. One thing, however, an advocate may not act on behalf of anybody without first having obtained a “Brief” from an attorney, unless the wok is being done on a pro-bono basis or for the Legal Aid Board or Legal Clinic. This (and because, previously, better qualificatios were required) gives rise to the fact that advocates are sometimes regarded as more specialist than attorneys, which is not the case.
Note that attorneys may also sometimes appear in the High Court.
Nevertheless, one need not be either an attorney or an advocate to become a judge, since any approproiately qualified man or woman may become one. In practice, this means that magistrates and academics are also in the race, togeher with advocates and attorneys. Previously only SC’s (Senior Advocates) were in the running. Hope this makes sense to you – in a nutshel as it were.
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=173467&sn=Detail
Further alleged unconstitutional power abuse by the Presidency – allegedly at the request of the Prez himself!
These guys haven’t the faintest clue about the principle of legality – and, being from the president’s office, couldn’t give a damn.
Pierre, I do not want to belabour the point, but your reply reinforces what I am saying – academic and popular writing is just that: not underwritten in any way by scientific scrutiny or research. It is merely dogma and complaint. It may well have emanated from Gloria Steinem or Germaine Greer and can hardly be regarded as objective or serious commentary. It is not a blissful ignorance thereof on my part; merely a contemptuous disdain for such rubbish. Perhaps hundreds of thousands of years of evolution makes men and women what they are, with distinct differences, and when those differences manifest themselves in different career preferences for example, don’t start blaming a system which has been slagged off by a few aggrieved feminists.
Your’e also wrong about been obsessed with fairness. Your desire to place quotas on career choices is quite the opposite. I, on the other hand, believe in the fairness of freedom choice, be it career or any other life choice.
By the way, does this white male privilege to which you refer also include the past conscription of only said white males into the army purely because of their whiteness and maleness with the penalty of a 6 year jail sentence for failing to comply? Or routinely losing child custody in a divorce simply because one is male? Or having to work an extra 5 years before being able to retire on pension?
Finally, the libel laws do not prevent you from naming names. If what you claim is true, you should be courageous enough to say so in public without fear of legal recourse.
@Ntanjana
It is both delirious and delusional to brand the majority of women as lacking skills or competencies to serve in the judiciary. Unless you are Helen Zille who does not believe in the ability of her fellow women, there are number of women who are shining lights in the judiciary and you would not have known them if it was not for the constitutional principle that requires gender balance in our courts. You must thank the Constititution for having given these women, amongst others, Kate O Regan, Mokgoro J, Khampepe, Lucy Mailula , Carol Lewies, an opportunity to prove their mettle in their judiciary and none of them has disappointed. There are many legally qualified and competent women who can best administer justice in our courts and it is our responsibilty to enhance their opportunities to be suitable for appointment to the bench. In order for this to succeed, you need to swallow your gender prejudices because there is no time for debating them again. Gender and racial consideration is now a constitutional mandate waiting for implementation not a review.
Neil, I do not understand your point. You seem to suggest I am generalising when I refer to arguments about the inherent unbsuitability of women for the job of advocate as sexist. That is not a generalisation: in fact, it is an attack on generalisations about women. Your suggestion (if I udnerstand it correctly) therefore is nonsensical.
Graham, I am at a loss to respond to your Malemaesque and profound anti-intellectualism. One can only understand how the world works if one thinks about it and analyses it. To do this reading books is rather helpful. If one merely believes the world works as one experiences it without realising that one’s experience is based on one’s own world view and assumptions, then one will never be able to do anything but go around vchasing one’s own tail and congratualating oneself for being so clever while not seeing that one is running around and around in dark hole. Your response reminds me of the response of the Catholic Church to the revelation that the Earth was round. They rejected this because tihs is not how they expereinced the world. Theyw ere wrong, of course. You are also wrong.
Hey Prof de vos, what is your opinion on the challenges raised in this article?
http://www.timeslive.co.za/local/article425337.ece/Manyi–SA-Constitution-has-flaws
Pierre your last missive reveals the paucity of your argument. You made no attempt to refute anything I have said, presumably because you don’t have any substantive ammunition to do so. Instead, you make make some convoluted and long-winded analogy which does not seem to bear any relevance to what I have stated or the subject at hand.
If my argument happens to be better than yours, which usually seems to be the case, a wise move on your part would be to back off rather than paint yourself into a debate corner out of which you can’t extricate yourself.
I don’t think my argument is inordinately clever. It is just that yours makes mine look thus.
Graham, the problem is that you have not said anything of substance – apart from certain deeply ideological beliefs. One cannot really argue with beliefs. If you believe the earth is flat, nothing I can say will be really helpful. You happen to believe women are inferior to men. I can point to all the relevant studies (those academic books you dispise so much) but it would not help because it would not address your belief that is not based on fact or reason but on your own prejudices. It’s not worth it to argue with somebody who holds up their prejudices as argument. It is like arguing with someone about whether white people are inherently better than black people. The premise of the argument is based on bigotry and thus cannot form the basis of a valid argument. Thus I cannot argue with you.
@Graham
What kind of diagnosis is this as revealed by Pvd – “Malemaesque”? For a conservative male Afrikaner like you to be classified under Malema’s grotesque of logic, you diagnosis must be irreversible. Indeed irreversible as underlied by this bizzare statement of yours” academic and popular writing is just that: not underwritten in any way by scientific scrutiny or research”. Come on dude – the fact that it is called academic writing denotes that a research has been carried out. Therefore, there are basis for the point being made which is open for scrutiny or challenge. All issues identified as hindering the availability of women for appointment to the judiciary are based on research and empirical evidence. However you have the right to live in denial and embrace gender stereotypes – it is part of Malemaesque.
Pierre and Zebby, you are inducing me to reply more than I should need to do as you are (again) making untrue statements. Pierre please refrain from saying things like I have not said anything of substance. For such insubstantial commentary from me, you are devoting a lot of energy and time into having the last word and trying to refute it. If what I have to say is so insubstantial, why are you going to such lengths to counter or rubbish it? You are also putting words into my mouth and being decidedly unacademic by stating that I regard woman as inferior. Nowhere did I say that. The best you can reasonably deduce is that I regard men and woman as different which is self-evident. Again, nowhere did I state that I despise academic books. I do. however, regard with derision any narrow-minded dogma trying to cloak itself in an aura of academic substance.
Zebby, Germaine Greer has been a Professor of comparative literature at Warwick University and regularly writes columns in the lay media, like how stupid the late (former princess) Diana was or what a dickhead Steve Urwin was and so on. This is hardly academic writing simply because the person in question has the appellation, Professor. I may be male, but I am certainly not conservative or Afrikaans.
There is something profoundly Orwellian and Stasi about people, in this case males like Pierre, who try and look so correct and good and upstanding by propagating pc dogma, conveniently ignoring the fact that such dogma is based on fiction and lie.
Touchy subject: women, that is. As frustrating as it often is, political correctness, a western term, works well in keeping a balance.
It is a system where winning is everything. Many woman find it repulsive.
Simon Baron-Cohen in his work The Essential Difference: The Truth about the Male and Female Brain suggests that biology plays a distinctive role in career choices. Perhaps men are just more interested in becoming judges than women.
Graham says: April 29, 2010 at 16:36 pm
” I may be male, but I am certainly not conservative or Afrikaans.
“. What about stupid?
Is Graham conjoining ‘conservative’ with ‘Afrikaans’? Not sure I agree. Perhaps with the committed Calvinist worried his children will see Ostriches mating.
Personally, I think women are more capable with most matters in relation to a balance of emotion, justice, awareness and practicality. Those who are capable are a threat to we males who hold our power through muscle, old boy and brotherly dominance.
The drive for womenfolk’s rights is vital… cause guys, we’ve more than somewhat phucked up. Their only drawback is emotion, and perhaps rather than a drawback, its their sex’s challenge. However, I’m not sure emotion is any more dangerous than male ego, probably much less.
I for one would like to give them their chance. Our elite males are blowing it, right?
Followup: Not that you will agree, but who are the two most trustworthy politicians in SA at this time, and what is their sex: Hint, the letters ‘Z’ and ‘V’.
Why is Lady Justice a female?
im a first year law student at wits, find this blog exceedingly informative and intellectually stimulating, and will add my comments henceforth. prof, the book you wrote with prof currie from wits is on point and profoundly facilitates an understanding of constitutional and administrative law.
Pierre, let me suggest another possible explanation. (This is not to say that some of you suggestions may not also be on the mark.) Many of those who are considered senior enough for appointment to the bench now graduated from law school at a time when the proportion of women was considerably lower than it is now. Is it possible therefore that the pool of women who are considered eligible for the bench is relatively smaller?
Also, do you entirely dismiss the possibility that the pool of women available is smaller because more women choose not to work the long hours often associated with success at the bar and side-bars? That may be because, for reasons that may be partially biological at least, women more commonly choose to spend a large proportion of the years when they would otherwise be climbing the professional ladder at home raising children.
I am sure a lot of this has always been a matter of rigid gender based social roles. But I would be surprised if some of the differentiation is actually based on a choice that has deep biological roots. What do you say is to be done about that?
@ Tata Indica
Sorry to disappoint you. We do not discuss review of the Constitution in this blog because we do not want to upset Madam Zille. Even JZ/ANC was made to publicly committ to not tempering with the constitution.
Personally I fully agree with you, this should be the most relevant debate in the country right now.
@Gwebecimele
Guess he read the comments check out the nest article
They don’t belong in there. They just emotional things. They place is in the kitchen and bedroom. THERE’S NO SENSABLE JURISPRUDENCE THAT CAN COME OUT FROM WOMEN. IF WE PUT THEM IN THERE WE WILL BE KILLING THIS COUNTRY OUR COUNTRY WILL TURN TO A GAY-ZONE
What about black women? are they not worthy of the surpreme court. South Africa certainly is a mirror for USA I would like to see black women recognized for a high position in our nation by Mr. Oboma as Mr Bush recognized Ms. Right for Secretary of State.
“In the battle of the brains, the men win
PROFESSOR RICHARD LYNN
16 May 2010 at 06h00″
http://news.ioljobs.co.za/article_view.php?fArticleId=5471578
Interesting article. I am part of discussions on reviving the fast tracking of female candidates to become Judges. We have a large number of female Magistrates who are not considered suitable for acting Judicial positions. We have very few black female members of the Bar in most Provinces. The Justice College’s course was suspended due to the women not attending their classes I am told, I have not seen that noted as the formal reason. JPs who are active in attracting women to Acting positions, such as in the Western Cape for example, should have more support in training women for Acting positions. If these initiatives produce a surplus then they can apply for positions at other High courts. Firstly we need to ensure more women take up challenging roles at the Bar and running their own attorneys firms