Gender and Race in South African Judicial Appointments

Abstract

Although the obligation to appoint women as judges originates from the constitutional injunction to consider “the need for the judiciary to reflect broadly the racial and gender composition of South Africa,” gender transformation has lagged behind racial transformation of the bench. During the past four years, however, the lack of women appointees has become a more contested issue. This paper investigates the relationship between gender transformation and racial transformation of the judiciary in public debates around the judiciary. Despite the universally voiced concern about the lack of women judges, the most frequent and acrimonious public disputes continue to centre upon racial issues. The imperative to appoint women judges is often articulated as an alternative to appointing black judges, although the statistics show that the greatest need is for the appointment of black African women. Debates on gender transformation of the bench also remain premised on a formal notion of equality that focuses on numbers of women judges rather than on appointing male or female judges who are committed to challenging gender oppression. This means that the entrenched professional cultures, norms and structures that benefit men are left unchallenged.