Gender and the Chief Justice: Principle or Pretext?

Abstract

The post-apartheid South African Constitution requires that the judiciary be transformed ‘to reflect broadly the racial and gender composition of South Africa’. Because the legal system and the judiciary are the least ‘transformed’ organs of government and because of their social and political significance, the appointment of judges has become an important avenue for South Africans to continue to contest issues of race and power, usually using codes such as ‘merit’ or ‘transformation’ but sometimes descending into more open racial hostility. This article examines the debate around the appointment in 2011 of Chief Justice Mogoeng Mogoeng in which his views and judgments on gender and sexual orientation have been widely used to bolster the argument that he was not fit to be appointed. While gender and sexual orientation was raised almost universally, certain of these criticisms used gender in ways which echoed and amplified historical stereotypes of black men in general, and African male sexuality in particular. In these debates gender became a proxy for race because of the way in which discourses around gender echoed racial themes and stereotypes which have predominated in popular debates around the judiciary. In addition, ‘gender arguments’ were used to strengthen claims that professional seniority should be the main criterion in judicial appointments – a factor which would clearly favour white men in a profession in which black people and women remain a minority This placed feminists in an invidious position by using feminist arguments to justify racial privilege while subverting or ignoring more systemic gender and racial inequalities within the largely untransformed legal profession.