An all-fe­male list of can­di­dates means that the next judge to be ap­pointed to the Con­sti­tu­tional Court will be a woman – a pos­i­tive and sym­bolic step

CityPress - - Voices - Ta­beth Masengu voices@ city­press. co. za

History in the mak­ing? A coup for ac­tivists of gen­der trans­for­ma­tion? An op­por­tu­nity to see some of South Africa’s finest ju­rists? These and many other ques­tions will plague many of us when the Ju­di­cial Ser­vice Com­mis­sion ( JSC) in­ter­views its four can­di­dates, all women, for the Con­sti­tu­tional Court va­cancy that was left by Jus­tice Them­bile Sk­weyiya when he re­tired in May last year.

Judges Leona Theron, Zuk­isa Tshiqi and Nonkosi Mh­lantla of the Supreme Court of Ap­peal (SCA), and Judge Dhaya Pil­lay of the KwaZulu-Natal High Court are vy­ing for the po­si­tion in the high­est court in the land.

Last year, Chief Jus­tice Mo­go­eng Mo­go­eng was quoted as say­ing the JSC would take some time “be­fore advertising the post left va­cant ... This was so that the JSC would be spoilt for choice.”

Ad­mit­tedly, four can­di­dates (the bare min­i­mum re­quired) for one Con­sti­tu­tional Court va­cancy is not the long list he may have hoped for, but this is the first time the JSC will be pre­sented with an all-fe­male list for such a po­si­tion. The last in­ter­views for the same court in 2013 fea­tured an all-male list and, be­fore that, the 2012 in­ter­views had only one woman on the four-per­son list in 2012.

In all the ex­cite­ment and, per­haps, trep­i­da­tion (for those who be­lieve that a woman’s place is not on the Bench), it is im­por­tant that South Africa does not lose sight of three im­por­tant is­sues.

The first is that this in­ter­view line-up puts trans­for­ma­tion crit­ics in their place. Crit­ics have ar­gued that the merit as­pect of sec­tion 174 of the Con­sti­tu­tion has of­ten been sac­ri­ficed at the al­tar of trans­for­ma­tion. They claim that – in a bid to re­flect the race and gen­der com­po­si­tion of so­ci­ety as re­flected in the Con­sti­tu­tion – the ne­ces­sity for a ju­di­cial of­fi­cer to be ap­pro­pri­ately qual­i­fied, fit and proper, as per 174(1), has been side­lined. Yet the women be­ing in­ter­viewed de­feat these crit­ics as they prove that black South Africans and women are as com­pe­tent and ca­pa­ble as their white and male coun­ter­parts. With a di­ver­sity of ex­pe­ri­ence and back­grounds that cover ev­ery­thing from ex­per­tise in labour law and hu­man rights to men­tor­ing young women and train­ing ju­di­cial of­fi­cers, these judges have been trail­blaz­ers in their own right.

Se­condly, the Con­sti­tu­tional Court is no longer lim­ited to be­ing only the fi­nal ar­biter on con­sti­tu­tional mat­ters. It now hears cases brought to it both as a court of first in­stance and di­rectly on ap­peal if the mat­ter is con­sid­ered im­por­tant enough and in the in­ter­ests of jus­tice. There­fore, the role of our Con­sti­tu­tional Court jus­tices in shap­ing our fu­ture has ex­panded to more than con­sti­tu­tional mat­ters alone.

All four women have served as ju­di­cial of­fi­cers in vary­ing courts for at least 10 years, so they are all adept at dis­pens­ing the law. Thus, this is an op­por­tu­nity for the JSC to dig deeper into what the can­di­dates rep­re­sent. What are their ju­di­cial philoso­phies? How do they see their roles as trans­for­ma­tive con­sti­tu­tion­al­ists? What will they bring to the Con­sti­tu­tional Court? And how is this in­formed by their ju­di­cial jour­ney?

Thirdly, of the four can­di­dates be­ing in­ter­viewed for the va­cancy, one has not acted in the court. In­stead of view­ing that as a neg­a­tive, it would be help­ful to bear in mind that there are cur­rently no actin­gap­point­ment guide­lines avail­able, there­fore the de­ci­sion to choose judges to act is left to the dis­cre­tion of the re­spec­tive heads of each of our courts. In this in­stance, it is the chief jus­tice. One can­not ap­ply to act in the Con­sti­tu­tional Court, or any other. As Judge Dim­pheletse Moshidi of the South Gaut­eng High Court pointed out in his SCA in­ter­view in April 2015: “You wait for the call and don’t know why other col­leagues are go­ing there.”

Moshidi was of the belief that his ser­vice and ex­pe­ri­ence on the Bench should not be dis­counted sim­ply be­cause he had not acted in a higher role, and this is true. Mo­go­eng, with jus­tices Jo­han Frone­man and Sisi Kham­pepe, among oth­ers, never acted in the Con­sti­tu­tional Court be­fore they were ap­pointed.

The or­gan­i­sa­tions and for­mer Con­sti­tu­tional Court jus­tice who nom­i­nated Pil­lay are con­vinced that she would make a wor­thy con­tri­bu­tion to the Con­sti­tu­tional Court Bench and to South African ju­rispru­dence as a whole. Is the prospect of such a con­tri­bu­tion not worth more than act­ing stints in the court?

Un­like the out­come of other courts’ in­ter­views – where the JSC makes a rec­om­men­da­tion to Pres­i­dent Ja­cob Zuma for a par­tic­u­lar can­di­date – a Con­sti­tu­tional Court ap­point­ment de­pends pri­mar­ily on the pres­i­dent af­ter con­sul­ta­tion with the chief jus­tice and op­po­si­tion lead­ers in the Na­tional Assem­bly.

Re­gard­less of who Pres­i­dent Zuma ap­points, the public and the JSC will have an op­por­tu­nity to as­sess the qual­ity, depth and ex­per­tise that is avail­able among these fe­male ju­rists. Per­haps it will speed up gen­der trans­for­ma­tion of the ju­di­ciary by pro­vid­ing a taster of what sit­ting fe­male judges (on the Bench for years) can of­fer (even though they should not have to prove them­selves at all).

More im­por­tantly, it will be a sym­bolic as­pect of our road to equal­ity. It will show women still en­coun­ter­ing dis­crim­i­na­tion and sex­ism in the le­gal pro­fes­sion, and young women in school, that their race or gen­der does not and should not de­ter­mine how far they can go.

These in­ter­views open the door for new dis­cus­sions and de­bates, and may change pre­con­ceived no­tions of women and the law – and that is worth be­ing ex­cited about. Masengu is a re­searcher at the demo­cratic gov­er­nance

and rights unit based at the Univer­sity of Cape Town

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