- See, for example, P Langa ‘Transformative Constitutionalism’ (2006) 17 Stellenbosch LR 351; and L Ackermann ‘The Legal Nature of the South African Constitutional Revolution’ (2004) 633 NZLR 646
- Constitution s 238.
- Langa (note 1 above) 352. See also K Klare ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146.
- See, for example, M Hey wood ‘South Africa's Treatment Action Campaign: Combining Law and Social Mobilization to Realize the Right to Health’ (2009) 1 J Human Rights Practice 14.
- K von Holdt ‘South Africa: The Transition to Violent Democracy’ (2013) 40 Review of African Political Economy 589, 595.
- S Msimang ‘The backlash against African women’ New York Times (January 2015) <http://www.nytimes.com/2015/01/11/opinion/sunday/the-backlash-against-african-women.html?_r=0>.
- S Meer ‘Feminist Contributions, Challenges and Claims’ (2013) 27 Agenda: Empowering Women for Gender Equity) 1, 4. See also S Hassim The ANC Women's League: Sex, Politics and Gender (2014).
- C Albertyn ‘Women and the Transition to Democracy in South Africa’ (1994) Acta Juridica) 39, 54–57.
- T Madonsela ‘Beyond Putting Women on the Agenda’ (1995) 11 Agenda: Empowering Women for Gender Equity) 27; Meer (note 7 above).
- See, for example, F v Minister of Safety and Security 2012 (1) SA 536 (CC); Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC); Bhe v Khayelitsha Magistrate 2005 (1) SA 580 (CC); Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC).
- Volks NO v Robinson 2005 (5) BCLR 446 (CC) para 162.
- President of the Republic of South Africa v Hugo 1997 (4) SA 1 para 80.
- K Crenshaw ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) The Univ of Chicago Legal Forum) 139. See also South African Police Service v Solidarity obo Barnard 2014 (6) SA 123 (CC) paras 153–57.
- Constitution s 9.
- Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) para 44.
- Constitution Preamble.
- On the necessity of feminist movements, as opposed to women's rights movements, see S Hassim Women's Organizations and Democracy in South Africa: Contesting Authority (2005) 28; and B Hooks Feminism is for Everybody: Passionate Politics (2000).
- Hooks (ibid) viii, 1, 62: ‘Just as a vast majority of citizens in this nation believe in equal pay for equal work most folks believe that men should not beat women and children. Yet when they are told that domestic violence is the direct outcome of sexism, that it will not end until sexism ends, they are unable to make the logical leap because it requires challenging and changing fundamental ways of thinking about gender.’
- Hassim (note 17 above) 5.
- See, for example, Bhe (note 10 above) and Barnard (note 13 above).
- Exceptions exist, including in South Africa, for example the ‘Brothers For Life’ and ‘One Man Can’ campaigns of Sonke Gender Justice <http://www.genderjustice.org.za/>.
- Hassim (note 7 above).
- See the joint statement of organisations working on gender-based violence: ‘Alarming anti-feminist rhetoric at Ministry of Women’ <http://www.genderjustice.org.za/news-item/alarming-anti-feminist-rhetoric-at-ministry-of-women/>.
- V Pillay ‘Zuma: Women must have children’ Mail and Guardian (August 2012) <http://mg.co.za/article/2012-08-21-zuma-women-must-have-children>.
- Sapa ‘Motshekga: We all say dumb things, Zuma is only human’ Mail and Guardian (January 2015) <http://mg.co.za/article/2015-01-26-motshekga-we-all-say-dumb-things-zuma-is-only-human>.
- City Press ‘Zuma: Send teen moms to faraway islands’ City Press (March 2015) <http://www.citypress.co.za/news/zuma-send-teen-moms-faraway-islands/>.
- Hassim (note 17 above) 5–9.
- Hooks (note 17 above) 113.
- Albertyn (note 8 above) 45.
- Hassim (note 17 above) 28.
- Albertyn (note 8 above) 46, fn 29.
- Ibid 52; Hassim (note 17 above) 34.
- Albertyn (ibid) 57–63.
- Hassim (note 7 above) 91.
- Meer (note 7 above) 4.
- The Women's Charter for Effective Equality Preamble <http://www.anc.org.za/show.php?id=233>.
- Ibid.
- Ibid Article 1.
- Hassim (note 17 above) 208.
- Constitution Preamble.
- Ibid s 1(a).
- Ibid s 1(b).
- Ibid s 9(1). Contrast, for example with the US Constitution's 14th Amendment which refers only to the entitlement to ‘equal protection of the laws’. Our emphasis.
- Constitution s 9(2). Our emphasis.
- Ibid ss 9(2) & 7(2).
- Ibid.
- Ibid s 9(3). See Crenshaw (note 13 above); and Barnard (notel3 above) paras 152–56.
- Oxford Dictionary of English <http://www.oxforddictionaries.com/definition/english/gender>.
- G Rubin Deviations: A Gayle Rubin Reader (2011) 34.
- G Rubin ‘The Traffic in Women: Notes on the “Political Economy”’ of Sex’, in R Reiter (ed) Toward an Anthropology of Women (1975) 179.
- J Germon Gender: Genealogy of an Idea (2009) 85–86 cited in Rubin (note 49 above) (2011) 14.
- S v Makwanyane 1995 (3) SA 391 para 9.
- Minister of Finance v Van Heerden 2004 (6) SA 121 (CC) para 31. Our emphasis.
- See for example, s 27 of the Constitution.
- N Stein ‘Women's what? Still not reaching where it matters’ Daily Maverick (August 2014) noting, for example, ‘Toilets without doors, running water, sanitary disposal bins and soap exclude our girls from up to a quarter of their school time’.
- Minister of Health v Treatment Action Campaign 2002 (5) SA 721; S Meer & C Albertyn ‘Citizens or Mothers? The Marginalization of Women's Reproductive Rights in the Struggle for Access to Health Care for HIV-positive Pregnant Women’ in M Mukhopadhyay & S Meer (eds) Gender, Rights and Development: A Global Sourcebook (2009) 27.
- Though, surprisingly, similar gender representivity provisions are not included for others, such as Parliament, the SAHRC and the CGE itself. Interestingly, Madonsela (note 9 above) notes: ‘The CGE was inserted in the Interim Constitution without much thought by certain male ‘experts’ during the last few hours of the constitution making process. Attempts to discourage the structure as it had not been given sufficient thought fell on deaf ears.’ 34.
- Constitution s 187. Our emphasis.
- See generally, N Friedman ‘The South African Common Law and The Constitution: Revisiting Horizontality’ (2014) 30 SAJHR 63.
- M Mukhopadhyay & S Meer ‘Introduction: Gender, Rights and Development’ in Mukhopadhyay & Meer (note 56 above) 18–23.
- President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 (CC) para 72, referring to the Constitutional Court particularly.
- See, for example, Makwanyane (note 52 above) paras 247,305 & 337; Langa (note 1 above); Klare (note 3 above); G Budlender ‘Access to Courts’ (2004) 121 SALJ) 339, 346–47.
- Constitution ss 174(l)-(2).
- See, for example, C Albertyn ‘Judicial Diversity’ and M Olivier ‘The Selection and Appointment of Judges’ in C Hoexter & M Olivier (eds) The Judiciary in South Africa (2014).
- See, for example, Albertyn (ibid) 276–77 & 280.
- It is interesting, if alarming, to note that in 1912 women were not considered to be ‘persons’ for the purposes of legislation regarding admission to the legal profession, see J Jeffery ‘Legal Transformation in the Judiciary’ (October 2014) <http://www.gov.za/deputy-minister-john-jeffery-gender-transformation-legal-profession-seminar>.
- Constitution s 39(2). See, for example, Bertie Van Zyl (Pty) Ltd v Minister for Safety and Security 2010 (2) SA 181(CC) paras 21–22; African Christian Democratic Party v Electoral Commission 2006 (3) SA 305 (CC) paras 21, 25, 28 & 31; Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (4) SA 490 (CC) paras 89 & 91; Daniels v Campbell NO 2004 (5) SA 331 (CC) paras 22–23; Stopforth v Minister of Justice; Veenendaal v Minister of Justice 2000 (1) SA 113 (SCA) para 21.
- Albertyn (note 64 above) 277.
- Ibid 277.
- We have chosen to focus on Albertyn's arguments here, but the need for diversity in the judiciary is widely argued and acknowledged. See, for example, K O'Regan ‘A Pillar of Democracy: Reflections on the Role and Work of the Constitutional Court of South Africa’ (2012) 81 Fordham LR 1169, 1175–77, including the references cited in fn 26 of that article.
- Albertyn (note 64 above) 247.
- Ibid.
- Ibid 271.
- Constitution s 9(2). See, for example, Minister of Finance v Van Heerden 2004 (6) SA 121 (CC) paras 24–32.
- Albertyn (note 64 above) 271.
- See, for example, E Bonthuys ‘The Personal and the Judicial: Sex, Gender and Impartiality’ (2008) 24 SAJHR) 239, 256–57; R Graycar ‘The Gender of Judgments: Some Reflections on “Bias”’ (1998) 32 Univ British Columbia LR) 1, 4–7.
- See, for example, Albertyn (note 64 above) 260; O'Regan (note 70 above) 1175–76; B Hale ‘Equality and the Judiciary: Why Should we Want More Women Judges?’ 2001 Pub L) 489, 501–03.
- See, for example, Albertyn (ibid) 260–63, including the references cited in fns 87 & 88; ‘O'Regan (ibid) 1176.
- See, for example, Bonthuys (note 76 above) 255.
- O'Regan (note 70 above), cited in Albertyn (note 64 above) 265.
- Bonthuys (note 76 above) 262.
- Ibid 255.
- For example, such assumptions are discussed in Bonthuys (ibid) 249.
- Olivier (note 64 above) 116 & 118.
- Ibid 119; L van den Heever was appointed as a judge in 1969 and retired in 1996. In 1994 J Traverso was appointed as South Africa's second female judge, Olivier (note 64 above).
- Ibid.
- JSC ‘Guidelines for Questioning Candidates for Nomination to the Constitutional Court’ (26 September 1994) in JSC Handbook (2010) 67 in Hoexter & Olivier (note 64 above) 116, 132.
- Ibid.
- The Constitution s 178.
- State representatives and members of political parties bear independent constitutional obligations as a result of holding public office and exercising public power. Representatives of various levels of the legal academy and legal profession arguably bear direct horizontal obligations in terms of the Bill of Rights to ensure access to justice given their professions, in addition to constitutional obligations associated with the JSC as an institution and their performance of public functions as members of the JSC.
- Judicial Service Commission v Cape Bar Council 2013 (1) SA 170 (SCA) paras 21–22: ‘The JSC's power to advise the President on the appointment of judges … is derived from s 174(6) of the Constitution. Hence it is undoubtedly a public power.’
- Democratic Alliance v President of South Africa 2013 (1) SA 248 (CC) paras 34 & 36–37.
- Minister of Defence and Military Veterans v Motau 2014 (5) SA 69 (CC) paras 81–83; and Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) paras 51 & 70–74.
- The Constitution s 174(2).
- JSC ‘Summary of the Criteria Used by the Judicial Service Commission when Considering Candidates for Judicial Appointments’ (10 September 2010) in JSC Handbook (2010) 67 in Hoexter & Olivier (note 64 above) 116, 133.
- Ibid. Our emphasis.
- Madonsela (note 9 above) 27, 31.
- Ibid.
- Ibid.
- The Constitution s 178(1); and ‘Members of the JSC’ (2014–2015) <http://judiciary.org.za/members-of-the-jsc.html>.
- Information provided by the Office of the Chief Justice dated 31 May 2015. Only 70 of the 192 High Court positions (excluding specialised courts) are filled by women (36 per cent), only 6 of the 26 Supreme Court of Appeal (SCA) positions are filled by women (23 per cent), and until 1 December 2015 only 2 of the 11 positions of the Constitutional Court are filled by women (18 per cent). With the appointment of Justice Nonkosi Zoliswa Mhlantla, which came into effect on 1 December 2015, 3 of the 11 positions on the Constitutional Court are occupied by women (27 per cent).
- Ibid: 123 of the 192 High Court positions are filled by black judges (64 per cent) but only 48 of the 192 judges are black women (25 per cent); 17 of the 26 SCA positions are filled by black judges (66 per cent) but only 5 of 26 judges are black women (19 per cent); and 8 of 11 Constitutional Court positions are filled by black judges (73%) but only 3 of 11 judges are black women (27%). When referring to black we include those described in the Office of the Justices demographic information as African, Coloured and Indian.
- President of the Republic of South Africa v Hugo 1997 (4) SA 1, 80.
- P de Vos ‘A tale of two interviews at the JSC’ Constitutionally Speaking (July 2009) <http://constitutionallyspeaking.co.za/a-tale-of-two-interviews-at-the-jsc/>; C Rickard ‘Male intransigence on the bench’ (2007) Without Prejudice) 52; and S Adams ‘Pretoria judges are sexist, says De Vos’ lOL News (October 2005) <http://www.iol.co.za/news/south-africa/pretoria-judges-are-sexist-says-de-vos-1.256468#.VLblriuUdrY>.
- Staff Reporter ‘Satchwell makes her case at the JSC interviews’ Mail & Guardian (September 2009) <http://mg.co.za/article/2009-09-22-satchwell-makes-her-case-at-jsc-interviews>; ‘Judge defends her private life? News 24 (September 2009) <http://www.news24.com/SouthAfrica/News/Judge-defends-her-private-life-20090922>.
- Bonthuys (note 76 above) 239, 248.
- Ibid.
- Hale (note 77 above) 497.
- Excerpts from an interview given by Mogoeng CJ at Heads of Court (13 February 2015): ‘… whenever we advertise posts with (sic) very few or no women making themselves available … members of the media, some politicians, members of the public said, there's something wrong with either Mogoeng or the Judicial Service Commission. These people are rude to the candidates. That's why people are not making themselves available … We were criticised left, right and centre that we're not doing enough to facilitate the representation of women … as if we bear the responsibility to go and force women to apply for vacancies …’.
- Ibid.
- R Davis ‘JSC interviews: “Oscar judge” grilled; gender stays in the spotlight? Daily Maverick (April 2015) <http://www.dailymaverick.co.za/article/2015-04-14-jsc-interviews-oscar-judge-grilled-gender-stays-in-the-spotlight/#.VSli7vmUfwY>.
- ‘Judicial Service Commission Interview with Prof. Catherine O'Regan’ (October 1994) <http://www.constitutionalcourt.org.za/site/judges/transcripts/catherineoregan.html>.
- Olivier (note 64 above) 122–23; Bonthuys (note 76 above) 250; ‘Interview with Justice John Mowbray Didcott’ (October 1994) <http://www.constitutionalcourt.org.za/site/judges/transcripts/didcott.html>; ‘Judicial Service Commission Interview with Prof. Albert Louis Sachs’ (October 1994) <http://www.constitutionalcourt.org.za/site/judges/transcripts/albertlouissachs.html>; ‘Judicial Service Commission Interview with Adv. Pius Nkonzo Langa’ (October 1994) <http://www.constitutionalcourt.org.za/site/judges/transcripts/piusnkonzolanga.html>; and <http://www.constitutionalcourt.org.za/site/judges/transcripts/johannkriegler.html>.
- Bonthuys (note 76 above) 256.
- Bisho is closer to her home, in East London, than Mthata, and it would have been possible for her to commute to Bisho on a daily basis.
- T Masengu & K Hindle ‘The new JSC in a man's world’ The Con Mag (November 2014) <http://www.theconmag.co.za/2014/11/10/the-new-jsc-and-the-patriarchy/>; J Maiala ‘The Big Read: No way is this transformation’ Times Live (October 2014) <http://www.timeslive.co.za/thetimes/2014/10/14/the-big-read-no-way-is-this-transformation>; F Rabkin ‘Judge makes tearful appeal for transfer’ Business Day (October 2014) <http://www.bdlive.co.za/national/law/2014/10/09/judge-makes-tearful-appeal-for-transfer>.
- Ibid.
- Ibid.
- N Tolsi ‘Judge tells JSC about husband's arrest’ City Press (October 2014) quoting Alison Tilley.
- Masengu & Hindle (note 116 above).
- Masengu & Hindle (ibid); Matala (note 116 above); Rabkin (note 116 above)
- See Hale (note 77 above) 498: ‘A woman judge is a contradiction in terms. In order to become a judge a woman has to give up her own voice and adopt that of a man.’
- Bonthuys (note 76 above) 241.
- Tolsi (note 119 above).
- Note 61 above (judgment on recusal application).
- Ibid 42, quoting R. v. S. (RD) (1997) 118 CCC (3d) 353.
- ‘Judicial Service Commission Interview with Prof. Edwin Cameron’ (October 1994) <http://www.constitutionalcourt.org.za/site/judges/transcripts/edwincameron.html>.
- Based on authors’ own notes during the relevant JSC hearings.
- R. v. S. (RD) quoted in SARFU (note 61 above) 42: ‘It is obvious that good judges will have a wealth of personal and professional experience, that they will apply with sensitivity and compassion to the cases that they must hear. The sound belief behind the encouragement of greater diversity in judicial appointments was that women and visible minorities would bring an important perspective to the difficult task of judging.’
- N Scheman Engenderings: Constructions of Knowledge, Authority and Privilege (1993) chapter 6; IM Young Justice and the Politics of Difference (1990) 97, 103.
- Address at the launch of the book ‘Australian Feminist Judgments: Righting and Rewriting Law’ (2 December 2014) <http://www.law.uq.edu.au/documents/afjp/Justice-McMurdo-Launch-speech-021214.pdf>.
- A Sachs ‘Judges and Gender: The Constitutional Rights of Women in a Post-apartheid South Africa’ (1990) 7 Agenda: Empowering Women for Gender Equity 1, 1.
- S Meer ‘Experiences of Democracy in South Africa from a Feminist Perspective’ (2007) 50 Development 96, 97.
- Ibid.
- Meer (note 7 above) 3–5.
- Constitution ss 1 & 9.
- An unpublished survey by the Foundation for Human Rights concludes that only 46 per cent of South Africans had ever heard of the existence of either the Constitution or its all-important second chapter the Bill of Rights and that a mere 10 per cent of people had ever read the Constitution or had it read to them.
- Hassim (note 17 above) 195.
- Meer (note 133 above) 96.
- Meer (note 7 above) 8.
- On the urgent need for the transformation of the legal profession, see Centre for Applied Legal Studies ‘Transformation of the Legal Profession’ (August 2014) <http://www.wits.ac.za/files/25gim_578095001427098673.pdf>.
- Meer (note 7 above) 6.
- Choose new content alerts to be informed about new research of interest to you
- Easy remote access to your institution's subscriptions on any device, from any location
- Save your searches and schedule alerts to send you new results
- Export your search results into a .csv file to support your research