It was Judge Trevor Gorven, one of the nominees for two positions available at the country’s second highest court, the Supreme Court of Appeal, who during his interview by the JSC for the position this week highlighted only one issue that skewed opportunities for women in particular – that of unpaid legal pupillages which created an unfair playing field for “impecunious” candidates.

South African women with judicial aspirations – and particularly black women – have several hurdles to surmount that white, male candidates do not. These include systemic discrimination, being sidelined to specific courts and even sexual harassment.

On Monday, The Judges Matter Coalition, a group of community organisations that aim to monitor and assist the transformation of the judiciary, hosted a meeting in Cape Town to coincide with the current JSC hearings. The meeting was attended by various interested civil society organisations.

Alison Tilley, head of Advocacy and Special Projects at the Open Democracy Advice Centre, set the backdrop for the discussion, asking whether we should begin to think of the country’s courts “in a different way” as contentious issues – including that of land – were increasingly being adjudicated in the legal realm. (Disclosure: Tilley is Daily Maverick columnist – Editor)

“Do courts matter for people who are not involved in the law, and if so, how?” asked Tilley.

Framing the issue, Tilley asked an apparently simple question – “how do you become a judge?” – which turned out to be rather more complex to answer.

“The more I interrogated it, the less clear it became,” offered Tilley.

Of course the obvious first step would be for an individual to study law. After this, graduates opted for several different areas or routes.

“Some become academics, some become attorneys who appear in magistrates courts while they do have the right to appear in the high courts. They are the GPs of the legal world. Advocates are specialists theoretically, in litigation, labour, tax, for example. A whole group also go off into a different area, to work directly for government and the Department of Justice as prosecutors and they eventually become magistrates,” Tilley explained.

The general criteria required for consideration for a judicial position, she elaborated, were broad, including that the individual needed to be a “fit and proper person”. To this the “Mohammed Guidelines” had been added and these included that the candidate should have “personal integrity, energy and motivation, be a competent person technically as a lawyer as well as give expression to the values in the constitution, have potential and whether the appointment would send a symbolic message to the community at large”.

“But traditionally our judges come from the group of lawyers who are advocates. These are the people who appear in court a lot, know the rules, the case law and theory and the unspoken assumption is that advocates are the smartest that they are the crème de la crème. They get to be judges. That used to be the system,” she said.

Within the new legal framework the net had theoretically been cast wider, but the bulk of current appointments were still made from the ranks of advocates, some from a pool of attorneys, “but very few” and a handful from a crop of magistrates. While Constitutional Court Judges Kate O’ Reagan and Yvonne Mokgoro, who were appointed by Nelson Mandela in 1994, had been academics, no academic had been appointed to the bench in the past 11 years.

And if one of the most important criteria for becoming a judge was that the individual would have needed to have acted as one, the process of becoming an acting judge too “is a mystery”, said Tilley.

“We don’t really know. What we do know is that you have to be noticed by your Judge President. You would have had to appear in court. Advocates appear in front of judges all the time. And what we know is true is that these advocates are more likely to be appointed.”

The current system, she said, had a significant impact on transformation. It is important to bear in mind, she said, that in order to become an advocate, a law graduate would have to spend a year working without pay. After this, she or he would be expected to set up their own business, with enough capital, as well as employing enough attorneys who would refer work.

“What this means is that a particular category of people are more likely to be appointed. Those who become prosecutors begin to earn immediately. Attorneys get paid very badly for two years while they ‘learn’ and academics get paid as well. This all has an impact and works its way through the system when it comes to the transformation of the judiciary and how women might be considered.”

Tabith Masengu, a research officer with UCT’s Democratic Governance and Rights Unit (DGRU) who is also an admitted attorney of the High Court of South Africa, spoke specifically of DGRU’s research on women in the judiciary.

Masengu said that advocates were traditionally “prised” for nominations to the judiciary and that the profession, as it currently existed, remained biased towards white males.

“Whether it is in advocacy, whether it is in top leadership of magistrates, it is white and male. If requirements to be successful require experience in looking at how successful you are as an advocate, you are going to find for women that that is a very long shot. With magistrates, even while women make up around 40 percent around the country, a lot are confined to family law and criminal law. When that becomes important is when you go before the JSC, when they want to see a wide variety of experience. If you go before them and you have been sitting in the family courts for the past five years, they will say that you have not done commercial matters – how can you be a judge?”

What research had shown was that over the past five years only a third of those interviewed for judicial positions had been women.

“Of the entire number of people who have been appointed, only about 38 percent have been women. And the challenge that has been felt, expressly with regard to gender, is that if you want a judiciary that is reflective of society as section 174 (2) says in the Constitution, a judiciary that carries legitimacy, you are going to have a problem if it consists of mostly men. And even though transformation where race is concerned has really improved – there are about 64 percent black judges – the majority are male and not reflective of society,” said Masengu.

The expectation of an unpaid pupillage as an advocate favoured those from privileged backgrounds and an elite, private school network that enabled “connections”.

“And if you have these same people sitting on that matter dealing with land, for example, how are they supposed to understand what it means to be disenfranchised?” she asked.

While it was not impossible for a privileged, white male to understand the broader issues of a transformative society, the point was to have a reflective bench as well as a plurality of perspectives.

The DGRU, partnering with Sonke Gender Justice, had conducted a number of sector meetings in four provinces, meeting with attorneys, advocates, magistrates and academics.

“What we have found in our meetings in Johannesburg, Port Elizabeth, KwaZulu Natal and Cape Town is that different groups feel differently, but one thing remains: there is a feeling of systemic discrimination in all of the courts.”

In Johannesburg in particular, she said, there was a major issue of sexual harassment.

“You would not think of sexual harassment in the profession, but the idea is if you are a woman, to get ahead in your career, you have to learn to keep quiet. If you work for a senior counsel who happens to touch you inappropriately, and you report it, all the senior counsels around are going to learn that you have a big mouth. You will not be taken on as a junior. And the only way you can progress in the ranks is being junior to a senior counsel who gives you work,” she said.

Magistrates, in turn, worked “hectic hours” and dealt with the bulk of work that came before them. There were more South Africans using the magistrates and high courts.

“These are the people who say they are not respected. They feel that they are second-class citizens. Women in the magistracy complained about how they are confined to criminal and family courts and do not gain commercial experience. And even though there is transformation, women are still being sidelined for specific kinds of work.”

When it came to the country’s law firms, less than 18 percent of partners were women and less than nine percent were represented at large firms.

“You can only go so far. So in each profession, you find a glass ceiling. And then you ask yourself, if how far you have gone in your profession determines your judicial aspirations, what does that mean?”

The question, also, said Masengu, was did we want appointments because they were simply women or do we need a woman “who is transformational and gets the values of the Constitution”?

The appointment of judges, she added, had become highly politicised, and there had been cases where a candidate who was correct for the job, had a great CV, had written great judgments and who was respected in the profession but happened to have written a few “wrong” judgments that went against government, had been considered “too independent” and had not been appointed.

“There are those who have been very deferent to government and even thought they are not respected, they have been appointed,” she said.

The current, newly-constituted JSC, she added, was stacked with ruling party politicians and had only three members drawn from the opposition. Over and above the politicians were presidential appointments, as well as appointments from professional bodies such as the Black Lawyers Association and Advocates for Transformation, who are closely linked to the ruling party.

“And when they vote for a candidate they do so in private. But from what we have learned, sometimes there is a give and take. But the ANC has all the power when it comes to voting,” she said.

Asked how the new Legal Practice Act might affect the profession, she said that while it looked good on paper there were challenges.

“First of all, the machinery is going to take a while to kick into gear, and it affects mostly attorneys and not advocates. You still have a large group – magistrates – that it won’t affect. And while the Law Society governs attorneys in South Africa when it comes to judicial appointments, we have yet to see any statements.”

Ultimately appointing women to the judiciary has to do with legitimacy and a plurality of perspectives.

“If we are saying it is important 20 years on in our democracy for people to see judging reflect what and who they are – and if they go to court and see only males – what is that saying?” DM

Photo: Judge Thokozile Masipa reads her sentence of South African Paralympic athlete Oscar Pistorius on day six of sentencing procedures at the High Court in Pretoria, South Africa, 21 October 2014. EPA/THEMBA HADEBE/POOL