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Lack of Transformation in Judiciary Investigative Report (2016) By CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 1 LACK OF GENDER TRANSFORMATION IN THE JUDICIARY INVESTIGATIVE REPORT 2016 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 2 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 3 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 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 4 LACK OF GENDER TRANSFORMATION IN THE JUDICIARY 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 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 5 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 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 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 6 LACK OF GENDER TRANSFORMATION IN THE JUDICIARY 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 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 7 LACK OF GENDER TRANSFORMATION IN THE JUDICIARY 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 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 8 LACK OF GENDER TRANSFORMATION IN THE JUDICIARY 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 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 9 LACK OF GENDER TRANSFORMATION IN THE JUDICIARY 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 CGE INVESTIGATIVE REPORT:Layout 1 12/5/16 5:53 PM Page 10 LACK OF GENDER TRANSFORMATION IN THE JUDICIARY Jacob Zuma.
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