No country for women lawyers, but new judicial appointm…

From left: Judge Martha Mbhele – Deputy Judge of the Free State President | Judge SS Mphahlele – Mpumalanga Deputy Judge President | Judge Violet Phatshoane – Deputy Judge President at the North Cape | Judge Matsaro Violet Semenya – Deputy Judge-President of Limpopo. (Photos: Richter Materie / Oupa Nkosi)

Women in the legal profession are still lagging behind their male counterparts. Sexism and lack of gender transformation have been all too evident in interviews with Spitzenkandidaten before the Judicial Service Commission over the past two weeks. Given the recommendations made so far – including four women to serve as deputy judges’ presidents in four departments of the Supreme Court – the JSC panel appears to be taking note of this.

For all signs, being a lawyer sucks, and this has been confirmed in interviews with top law candidates before the Judicial Service Commission (JSC) over the past two weeks.

While there are a large number of women law graduates, women lawyers have a hard time finding work when it comes to moving up the legal ladder. They often get embroiled in family law, dealing with disputes over custody and divorce matters, while their male counterparts grapple with large cases that will ultimately enable them to do the job that would make it easier for them to climb into the bank one day.

Thus, the JSC’s decision to recommend four female candidates to serve as assistant judges in four departments of the Supreme Court is no small boon to women in the legal profession.

In 14-day interviews, the JSC questioned five deputy judge presidents, one of whom was Roland Sutherland judging for the Gauteng department. The remaining four went to female judges.

Martha Mbhele took the Free State DJP and knocked out two senior candidates. Judges Matsaro Semenya and Violet Phatshoane were recommended for DJP positions in Limpopo and the North Cape, respectively. This week the commission also recommended Judge Segopotje Mphahlele as Mpumalanga DJP.

According to Section 174 (2) of the Constitution, the judiciary must “largely reflect the racial and gender-specific composition of South Africa”. Despite this requirement, with regard to gender equality, particularly in leadership positions, the judiciary struggles with ensuring women make it to the bank and transforming the way the bank is run.

“It’s definitely unprecedented. There are around 19 posts in the leadership of the judiciary (heads of court and their deputies), but only four were women. So it’s pretty important that so many women were appointed to the judiciary at once, ”says Mbekezeli Benjamin, researcher at Judges Matter.

Part of the problem is briefing templates. During the two-week interviews, the panel heard of the covert and sometimes overt sexism that lawyers and judges have faced in the legal practice. This has turned them on their backs compared to male counterparts who tend to have more diverse practices.

Many of the respondents to the Commission did not comment on the origins of the problem and asked the JSC, Justice Department and Justice Management to have the gender transformation conversation.

“We see women graduating in numbers … we are allowed to put them in numbers, but we never see them in court and we have to ask ourselves a question about where they are. One of the problems is that society doesn’t trust women. Society needs to know that women can be lawyers, not just drawers.

“Customers need to change their mindset. We as lawyers have a responsibility to change their attitudes, ”Judge Nolwazi Mabindla-Boqwana told the commission when she was interviewed to be recommended for one of five positions at the Supreme Court of Appeal.

She joined two other women – Judges Wendy Hughes and Zeenat Carelse – on the shortlist. The latest appointments have increased the gender representation of the SCA from 32% women to 44%.

The candidates interviewed for DJP positions told a similar story of skewed briefing patterns even when it came to getting work from the government.

“It was a real challenge for the legal practice. I’m sorry to mention that … I was even failed by the government itself. Because in cases where the government puts you on panels, you become a quotation bureau specializing in quoting and every time you are told you failed. You don’t get a reason for it.

“When I called for reasons … because it even takes financial resources to make sure you have the compliments of the staff, to make sure you make these offers … where I got work, they didn’t pay. I have been appointed a judge since 2013, but some departments still owe me something, ”Judge Mphahlele told the commission.

Mphahlele pointed out that many practitioners who have been left behind face the same problems.

“It’s so sad, especially for female practitioners.”

Mphahlele has experience as a bankruptcy administrator, an area of ​​law that has historically been dominated by White. She informed the commission that a policy put in place by the Justice Department to ensure that each liquidation body has at least one previously disadvantaged liquidator has helped.

Two of the five judges recommended for appointment to the Constitutional Court were women – Fayeeza Kathree-Setiloane and Mahube Molemela. President Cyril Ramaphosa will select two candidates from this list.

In 2018, however, this transformation policy was put down by a majority ruling by the Constitutional Court on the grounds that there was a lack of rationality and that the policy was “unable to achieve equality” due to its method of implementation. The department has yet to replace it.

“I don’t think we as judicial officers (in appointing liquidators and trustees) can be of any help, as the appointments are made by the Master of the High Court. The court does not interfere in this regard. There is a process that they follow. They deal with the nomination of the creditors as the interest is more about the interests of the creditors. So you are looking at who the creditors prefer. And to be honest, Commissioner, the creditors are big corporations, and big corporations still prefer their own. “

Mphaphele was the judge in the now infamous “coffin attack” case in which Willem Oosthuizen and Theo Jackson were found guilty of attempting the murder, assault and kidnapping of Victor Mlotshwa in 2016.

“What we actually saw quite clearly in this round of interviews is how much the JSC has neglected the question of gender representation in the leadership corps of the judiciary and how this was reflected in the experience of female judges on the bench.” Said Benjamin after watching the interviews.

“In the past few days we’ve heard about the monumental difference that Justice Mandisa Maya has made at SCA in recent years, and how it has drawn more women to this court.

“We also heard women (especially black women) feel bullied and undermined during their time on the bench. I think the horror of some of these stories has moved the JSC to become sensitive to the plight of women, although the male-dominated JSC still has a strong undercurrent in making women and their roles in the bank and in the legal profession essential .

“To the credit of many nominated women, they had all made excellent leadership in the areas in which they worked,” he said.

Judge Mbhele, who was appointed as a DJP in the Free State, was asked if at the age of 47 he was a relatively young judge with five years of experience on the bench. She informed the commission that she had extensive leadership experience and worked as a regional executive for Legal Aid South Africa in different provinces, where she looked after between 298 and 402 employees.

“I have leadership skills. I bring the ability to set up standard operating procedures and guidelines, ”she told the Commission.

The role of the deputy judge-president plays a key role in the administration of courts as they are often tasked with assigning judges to cases, assisting case flow management in important cases and in some rural areas also administering county courts.

There are currently only three judge presidents – Mandisa Maya at the Supreme Court of Appeals, Monica Leeuw in the Northwest, and Shehnaz Meer at the Land Claims Court.

In addition to these four senior positions, the JSC has also interviewed vacancies at the Concourt, the Supreme Court of Appeals, and in various positions before the Supreme Court. By Thursday afternoon, the commission had recommended 15 women to fill various vacancies among the 32 posts.

Two of the five judges recommended for appointment to the Constitutional Court were women – Fayeeza Kathree-Setiloane and Mahube Molemela. President Cyril Ramaphosa will select two candidates from this list.

With regard to the other courts, the JSC Ramaphosa will provide a list of recommended candidates for appointment.

The last day of the interviews will be on Friday, April 23rd. DM

Dianne Hawker is a legal journalist and news editor at Newzroom Africa.

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