In the introduction to his book, The Land is Ours: South Africa’s First Black Lawyers and the Birth of Constitutionalism, advocate Tembeka Ngcukaitobi writes:
“South Africa’s Constitution stands as a monument in the world. For Ruth Bader Ginsburg, a judge of the Supreme Court of the United States of America, it is not the Constitution of the United States of America that is a model for the world, but the South African Constitution. The magnitude of its vision and ambition is unprecedented.”
Last month the United States lost Justice Ginsburg to pancreatic cancer. A week earlier, South Africans bade farewell to advocate George Bizos. Today our country also mourns the loss of advocate Priscilla Jana. As women, we can certainly celebrate these lives that have championed our cause, especially on the legal front.
The deaths of these progressive thinkers in the legal fraternity who advocated the rights and freedoms of women mark an occasion whereby women, especially those who serve in the legal fraternity, can benefit from the strides that women have made in leading the profession.
RBG, as she was commonly known, was only the second woman on the US Supreme Court after Sandra Day O’Connor. She was a champion for gender equality and women’s rights, while often having to negotiate a profession peppered with patriarchy. The Women’s Rights Project, which she co-founded, pursued more than 300 discrimination cases on the basis of gender within the first two years of its existence.
While uncle George Bizos and Priscilla Jana represented many of our heroes during apartheid, both also came most to the aid of the widows and orphans created by apartheid. Advocate Bizos represented them during the TRC hearings and, in some cases, even opposed amnesty for horrendous murderers. Advocate Jana, on the other hand, worked intimately pursuing justice through that same process. She would later serve as a commissioner on the South African Human Rights Commission.
Yet the passing of these champions within the legal profession must also allow us to reflect on the representation of women leading our courts. In the lead-up to the ANC’s 54th National Conference, the ANC Women’s League took the principled decision to support a woman for the presidency of the organisation and then the country.
Yet, as with the presidency of the ANC and the country, women in South Africa must not fear to state unequivocally that it is time for a woman to lead the Constitutional Court. We must be able to take the principled stand again, as we did with the presidency of the country, to state that women must lead in the country’s judiciary as well.
In a country suffering under the plague of gender-based violence (GBV) and where women must lead in fighting against this illness, the women of our country must know that no job or space is out of bounds for them.
Next year, the term of Chief Justice Mogoeng Mogoeng will come to an end. There is no precedent that the deputy chief justice must succeed the chief justice and therefore the election of a new chief justice and deputy chief justice, in four years’ time, is wide open.
Twenty-six years into our democratic dispensation, we have made strides in the transformation of the judiciary. However, we must remember that black women suffer from the triple oppression of race, class and gender. Sadly, we have seen this become even more true when our courts handle cases of GBV. The criminal justice system is often reprimanded by our courts on how they deal with survivors and evidence relating to GBV cases.
In the instance of Justice Kate O’Regan serving on the Constitutional Court of our country, we saw a woman champion the rights of women. There should therefore be little doubt that the appointment of a woman as chief justice to the highest court of our country would send a signal to every facet of our criminal justice system that the cases and the cause of women, especially those as survivors of some of the most horrendous crimes our country has seen, must be taken seriously and handled efficiently.
One is certain that even advocate Ngcukaitobi would agree that GBV stands as one of the greatest modern tests of our country’s constitutionalism. GBV stands as a threat to our freedom as a country and is a phenomenon that must be beaten. While we are beginning to make inroads into the fight against this evil in our society, our courts must take the lead in dispensing justice to survivors and this, in turn, may serve as a deterrent to perpetrators.
We can honour Priscilla Jana, RGB and George Bizos in no better way than if we were to live the spirit of the Bill of Rights, especially when it comes to women. We may start to instil this spirit by having a woman as our top jurist. DM
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