Golden opportunity for JSC to take major step in gender justice

The recent burglary at the office of the chief justice’s headquarters has been interpreted by SAPS as an “attack on the judicial system”, the ANC as a “cowardly… an attack on the very fibre of our democracy” and Parliament as a “disturb[ing]… attack [on] our shared values as a nation.”

Though speculation is rife about the whether the burglary was a result of organised crime, or an act of intimidation, there is clear agreement that the breach of the Midrand office’s security is a serious cause for concern.

This week, another more conspicuous and equally important event will be taking place at the same Midrand offices: the Judicial Service Commission (JSC) will be interviewing candidates for judicial appointment to numerous positions in various high courts and for one of two vacancies on the Constitutional Court.

Justice Raymond Zondo, already a judge on the Constitutional Court, will also be interviewed for the appointment as deputy chief justice to replace the retired Deputy Chief Justice Dikgang Moseneke.

These interviews present an opportunity to explore “our shared values as a nation” and most particularly South Africa’s commitment to the gender and racial transformation in the judiciary.

Before the JSC’s last set of hearings in October 2016, we argued that South Africa’s feminist Constitution requires a drastic improvement in the appointment of both women and feminists as judges to realise the Constitution’s requirement that the judiciary “reflect broadly the racial and gender composition of the country”.

Again we want to emphasise the importance that gender remains at the heart of JSC’s proceedings, questioning and decision-making. Gender inequality is everywhere.
The depth of gender inequality was again brought to the fore this week with the devastating “Soweto Taxi Rapes” highlighting the ongoing plague of violence against women and their children in South Africa. As was acknowledged in the public debate that has followed, the scourge of sexual violence is worsened by widely reported secondary victimisation at police stations which discourages survivors of sexual assault from reporting incidents and laying criminal charges.

Absent in this same debate, however, is the fact that evidence shows that the judiciary too tends to misunderstand the gendered nature of sexual violence cases, leading to additional secondary victimisation throughout court processes. South Africa’s law reports and journals are littered with further evidence of judges who refute the gendered nature of sexual violence and who undermine the psychological trauma suffered by victims of sexual violence.

The composition of the Constitutional Court shows that it, too, manifests the gender inequalities that plague South Africa.

South Africa has never had a woman permanently appointed as chief justice or deputy chief justice. At its inception the court included two women judges. Only five of the 25 judges who have been permanent members of the court have been women and there have never been more than 3 such members at one time. Currently, though there are 3 women on the bench. This will be reduced to 2 when Justice Bess Nkabinde retires in December. The same problem is mirrored in the appointment of acting judges to the Constitutional Court, which is often expressed by the JSC as a significant advantage, if not a requirement, for permanent appointment.

Understanding of gender-related issues and approach to gender in cases requires a more complicated analysis than a mere acknowledgement, by the JSC, of the underrepresentation of women judges. To fulfil its constitutional mandate, the JSC will have to vigorously undertake this analysis during each and every set of its hearings. This is seldom done.

Sadly, like the JSC’s questioning in interviews, what public discourse that there is about this issue, focuses solely on gender composition to the neglect of other equally important core issues such as understanding of gender and a gendered judicial approach. The recent debate between the ANC, the EFF and the DA arising from the president’s decision to nominate Justice Zondo as deputy chief justice earlier this month is a case in point.

President Zuma’s announcement that he was fulfilling his constitutional obligation to
“consult[] the … leaders of parties represented in the National Assembly” prior to appointing Zondo as deputy chief justice was met with almost immediate opposition from the Economic Freedom Fighters who positioned it as part of an attempt to “capture the judiciary”. Of more direct relevance is that EFF claimed that “in the interest of advancing the gender struggle” President Zuma should have appointed Justice Nkabinde, presently acting deputy chief justice who has eleven years’ experience on the Court. It, therefore, labelled his failure to appoint Nkabinde J as “inexplicable”.

Despite positioning its objection as based on “advancing the gender struggle” the EFF’s objection seemed to be based specifically on the narrow grounds of representivity: that Justice Nkabinde, a woman should be preferred to Justice Zondo a man. So singular is this focus that as the Presidency pointed out in response, the EFF declined to acknowledge that Nkabinde J’s term at the Constitutional Court expires in 9 months’ time and cannot be constitutionally extended. Moreover, this criticism does not address the composition of the Court as a whole, never mind the substance of the issue: how judicial appointments assist in achieving a gender-representative bench capable of producing gender-sensitive analysis and outcomes in terms of South Africa’s feminist Constitution. At best the criticism is well-intentioned but ill-informed; at worst it could be suggested to be manipulation of feminist language for politically opportunistic ends.

The DA, on the other hand, endorsed Zondo’s nomination, noting that its approach to judicial appointments keeps “one central thing in mind”: judicial independence. On this ground, subject to some questions, the DA was happy that after “scrutinis[ing] Justice Zondo’s record” that he “displayed the necessary legal ability and firm independence” required for appointment. The DA’s response does not account for the fact that, in addition to independence, qualification and ability; the Constitution explicitly requires consideration of transformative imperatives in the appointment of judges.

Furthermore, the degree of the DA’s scrutiny of Zondo J’s record is questionable. A simple googling of Justice Zondo’s name would have revealed that Zondo’s approach to gender-related matters has been publicly called into question. In a run up to the previous JSC interviews we criticised the Constitutional Court’s approach to gender with a focus on the Klaase judgment, and while our criticism of the entire Court remains, the minority judgment in Klaase, penned by Zondo J went further than the majority by endorsing the sexist characterisation of Ms Klaase – a female farm worker with 30 year occupation on a farm upon which she lived and worked, and raised her and Mr Klaase’s children and grandchildren – as only occupying “under” or “through” her husband. This description, which the majority of the court noted “demeans Mrs Klaase’s rights of equality and human dignity” is coupled with the minority’s abominable comparisons of Ms Klaase’s occupation to that of a live-in domestic worker or employee, nanny, sub lessee or family friend staying “temporarily” with Mr Klaase on the farm.

Many if not most cases have gendered elements and aspects to them and in a patriarchal society where it has been suggested that the judiciary often “speak[s] with a patriarchal voice” judgments like Zondo J’s in Klaase are often the rule rather than the exception. But this is no reason for these issues to not be strictly and deeply scrutinised. The same level of scrutiny should be applied to gender-related aspects of the judicial records of all candidates for judicial appointment. Indeed, if the appropriate level of diligence is displayed by members of the JSC, it will seldom be that such questions do not arise. In the run up to the last round of JSC interviews, for example, questions were raised about judgments dealing with rape of at least three of the four candidates (all men) for a position at the Constitutional Court. Two of these judges – Wallis J and Majiedt J – are up for nomination again next week.

It is therefore clear that in this process of interrogation the JSC must consider the appointment of women and feminists as judges as part of its constitutional mandate. In this regard, it is significant that Justice Theron is the only women out of the 5 candidates to be interviewed for appointment at the Constitutional Court next week.

But the JSC must also go further, as the Constitution requires, and, unlike the political parties called to consult the president, engage in the substance of how specific candidates for appointment understand gender-related issues, their commitment to gender equality and their judicial records in gender-related cases including sexual violence cases.

Justice, particularly from the country’s highest court, cannot continue to be dispensed by men (and women) who are oblivious to the gendered aspects of the matters that come before them.  

Mateenah Hunter is an attorney and a former Constitutional Court clerk of Justice Zak Yacoob.

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