Following the historic end of apartheid in 1994, South Africa embarked on a journey toward inclusivity and representation in all facets of society. One critical area of focus has been the judiciary, where efforts to enhance gender and racial diversity have gradually gained momentum. In 1994, there were approximately 165 judges, 160 of whom were white men, three were black men, and two were white women; no black women were judges at that time. As of February 2023, there are 253 judges, of which 113 are women (45%). Additionally, 42 are white men (17%), 39% are black men, 13% are white women, and 32% are black women.
Recent dialogues between the International Association of Women Judges (IAWJ) and its South African Chapter (SAC-IAWJ) have deepened our understanding of how colonialism, patriarchy, and apartheid have influenced both society and the justice system. These discussions have illuminated ongoing challenges that hinder the progress of women judges and highlighted the distinctive approaches South Africa is adopting to address these barriers through an intersectional perspective (1).
At the core of South Africa's constitutional ethos is the principle that the judiciary should mirror the racial and gender composition of the nation's populace. Yet, despite women constituting 51.5% of the country's population, as documented by the 2022 Census, and as of 2023, representing 51.3% of the magistracy, this balance remains elusive at the upper echelons of the judiciary (2). In the highest courts, women continue to be underrepresented: Constitutional Court Judges are 37.5% women; Supreme Court of Appeal Judges consist of 47.8% women; and High Court Judges stand at 43.6% women (3). In a three-day workshop held in December 2023, leaders of SAC-IAWJ from all levels of the judiciary, including the magistracy, convened with representatives from IAWJ in Johannesburg. Discussions delved into the multifaceted challenges faced by women judges, highlighting systemic issues that hinder their professional growth and fulfillment within the judicial system. Notably, SAC-IAWJ highlighted the prevalence of sexual harassment as a pervasive issue, exacerbated by the absence of formal policies within the judiciary to address such misconduct.
SAC-IAWJ has developed and submitted a comprehensive sexual harassment policy to the judiciary, urging its prompt adoption, implementation, and enforcement. Formal policies play a crucial role in establishing a safe and supportive environment that is essential for the advancement of women judges.
Moreover, the SAC-IAWJ has also set up a Training Trust to enhance the skills of all justice sector actors, including developing courses that tackle social context issues such as sextortion, which links to broader themes of prejudice, bias, and control.
SAC-IAWJ remains steadfast in its commitment to advocating for inclusive policies and practices within the judiciary. The IAWJ and SAC-IAWJ are aligning efforts to craft a comprehensive approach aimed at promoting gender equality. Measures being considered include enhancing transparency in hiring and promotion processes, fostering a culture of information sharing, promoting diversity, and addressing gender-based misconduct. These measures aim to dismantle existing barriers and elevate women judges of diverse backgrounds to leadership positions where their insights are valued and integrated. IAWJ, SAC-IAWJ, and key stakeholders aspire to cultivate a more inclusive and equitable judiciary in South Africa. Their vision emphasizes the importance of an intersectional lens in addressing gender equality within the judiciary, recognizing that fully understanding and combating the myriad forms of discrimination women face requires acknowledging and addressing the interconnected nature of race, gender, and other social categories.
[1] General Recommendation No. 28 (2010) on the core obligations of States parties under Article 2 of the Convention clarifies that intersectionality is a basic concept for understanding the scope of these obligations, stating that discrimination against women based on sex and gender is inextricably linked with other factors that affect women, such as race, ethnicity, religion or belief, health, age, class, caste, and sexual orientation and gender identity. CEDAW General Recommendation No. 28: Core obligations of States parties under Article 2 of the Convention, CEDAW/C/GC/28, para. 18.
[2] The South African Judiciary. (2023, February). Annual Judiciary Report 2021/22. https://www.judiciary.org.za/index.php/documents/judiciary-annual-reports# (pp. 56-57)
[3] The South African Judiciary. (2023, February). Annual Judiciary Report 2021/22. https://www.judiciary.org.za/index.php/documents/judiciary-annual-reports# (pp. 56-57)