A COMPLAINT has been laid with the Commission for Gender Equality asking it to investigate "what appears to be gender discrimination" in the appointment of judges.
The constitution requires the Judicial Service Commission (JSC) to consider the need for the judiciary to broadly reflect South Africa’s population in terms of race and gender. But despite the fact that women make up more than half the population, the number of women judges remains stubbornly below 30%.
The JSC has for some time expressed disquiet about the lack of progress in ensuring a more gender-representative judiciary.
In their complaint, the University of Cape Town’s Democratic Governance and Rights Unit and nongovernmental organisation Sonke Gender Justice Network say that between 2009 and 2012, 211 candidates were interviewed by the JSC for 110 posts.
"Only 24 women were appointed," says the complaint.
The complaint calls these figures "alarming" — given the JSC’s obligation in the constitution.
It says that according to latest statistics from the Law Society of South Africa, there are more female law graduates and more female admitted attorneys. Close to a quarter of advocates are women, says the complaint.
"While there may not be as many women in the legal profession as there are men, there are still a number of highly qualified and competent women who can be encouraged and put forward for both acting and permanent appointments".
Sonke and the Democratic Governance and Rights Unit also identified as a bottleneck the appointment of women as acting judges.
Having acted as a judge gives candidates an advantage when they are being interviewed by the JSC.
The complaint said that figures from the Justice Department at August 2012 show that of 93 acting appointments, only 14 are women.
The "failure to adequately implement" the JSC’s constitutional obligation resulted in violations of the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act, the African Charter on Human and People’s Rights and international law instruments.
Sonke and the Democratic Governance and Rights Unit have asked the commission to constitute an investigation into the apparent discrimination and into whether steps have been taken to address the gender disparities in the judiciary.
They also want the commission to establish an ongoing "monitoring capability" of judicial appointments and to assess South Africa’s compliance with the Convention on the Elimination of all forms of Discrimination Against Women.
The president, the justice minister and the JSC were all cited in the complaint.
This week the JSC will be interviewing for judicial appointments. Of the 16 candidates who are not already judges, seven are women.