Judging women harshly

PROFESSOR Penny Andrews made an excellent impression during Monday's interview for a job on the Constitutional Court. So good that one of the commissioners asked this black South African, now teaching in New York, how she could be persuaded to return even if she were not appointed to the court.

PROFESSOR Penny Andrews made an excellent impression during Monday's interview for a job on the Constitutional Court. So good that one of the commissioners asked this black South African, now teaching in New York, how she could be persuaded to return even if she were not appointed to the court.

"Get a boyfriend here," suggested another commissioner.

Next time the Judicial Service Commission indulges in its periodic soul-searching over the lack of women on the Bench, in the legal profession or on its short list of candidates to interview, members should reflect on that exchange. For one thing, it illustrates that judges are not the only people who should undergo sensitivity training - those choosing them could also do with some help.

For another, it shows how little has changed over the past 12 years.

I recall with great clarity the first time public interviews were held with candidates for the judiciary. Before the Constitutional Court was set up, a range of lawyers were quizzed to establish their suitability for a post on this, South Africa's new showcase court.

One of them was the then Professor Kate O'Regan of the University of Cape Town. Within a few sentences she had bowled over the interrogators with her brilliance and her obvious capability. But that, it seemed, was not enough.

She had young children, one of the commissioners pointed out. If appointed, would she be able to make adequate arrangements for their care while she was at work?

One of the great disappointments about the latest session was that it was overlaid with scandal about the alleged inappropriate behaviour of Cape Town's Judge President John Hlophe. In a perverse way, he became the star of the proceedings, with massive media interest each time he spoke or walked into or out of the interview room.

There should have been another focus. These hearings drew more women candidates than ever seen in one session by the commission: 12 out of 22 were females. We should have heard far more about how they had been able to succeed in a profession notoriously unable to adjust to the presence of women; we should have listened to a dialogue about what could be done to improve the representation of women; they should have been welcomed and treated with the sensitivity on which the commission wants judges to be trained.

Instead, there was repeated evidence of just how much gender-related prejudice still flourishes. And the answers to many of the questions about what prevents women advancing in the profession were played out in public.

Take the interview with Judge Anna-Marie de Vos for the post of Deputy Judge President at the Pretoria High Court.

Her Judge President, Bernard Ngoepe, lost no time in letting the commission know that she had behaved in a way he found inappropriate. However, as the exchange between Judge Ngoepe and Judge de Vos unfolded, she emerged as a strong woman who had stood up for herself. And in an environment oriented to traditional views about how women should project themselves, that generally doesn't go down well.

Not one other woman has been appointed to the Pretoria Bench. Judge de Vos is there alone. To get there and to survive she has had to overcome considerable prejudice: the only woman, the only openly gay judge in her division, an Afrikaner regarded with suspicion by her older white Afrikaans-speaking colleagues, for whom she seems to represent the values of a world gone wrong.

She applies for a promotion. She and a male colleague who also applied for the job are both promised a stint to act in the position. This will enable their boss - and the commission - to judge their suitability. He gets his turn to act. She doesn't.

So she takes it up with the Judge President. In fact she speaks to him about it three times. He takes exception to this because, as it turns out, he says there is a perfectly reasonable explanation for how it happens that her male colleague will come to the commission with the advantage of direct experience of the job while she will not.

She is cast, through her interrogation before the commission, as an uppity woman. Someone who doesn't know her place. She doesn't get the promotion.

Many thousands of women can tell a similar story: they know the Catch-22. Do nothing to claim your rights and you don't get them. Agitate for them and, while you may or may not win, you'll pick up a reputation along the way.

Judge de Vos tried to explain something of this to the commission. How did she get on with her colleagues, she was asked. Fine, she said, except for some of the older ones. Commissioners pressed for more details. Some of them were sexist, she replied.

"Sexy or sexist?" asked a commissioner flippantly.

Worse was to come when one of the interrogators - a man and the national head of the Black Lawyers Association - asked how her colleagues (all of them male, remember) related to her. Wasn't it a "hindrance" that her partner was a woman and not a man? Silas Nkanunu was instantly treated to a challenging riposte.

"Does it matter?" asked Judge de Vos. Referring to her sexual orientation, she said it ought to make no difference to any judge who had accepted the values of the Constitution. She added, as much about the commission as about her peers in Pretoria: "I would expect not to feel uncomfortable about my choice of lifestyle."

One of the most telling features of this exchange is that no one objected; not a single voice was raised to assure Judge de Vos that the question was out of order; that the Constitution was on her side. Not even the Chief Justice intervened. To an observer it seemed she had been abandoned.

On the other hand there was instant objection and intervention when acting Cape High Court Judge Tandazwa Ndita, being interviewed for a post on the Cape Town High Court, was asked whether she had experienced racism and sexism during her stint on that Bench. In an obvious attempt to prevent discussion of the Hlophe issue, a number of commissioners said the question was improper, and the Chief Justice issued an ad hoc ruling that no specifics should be mentioned - she need only answer yes or no.

Two other moments stand out.

Wits law professor Cathi Albertyn, nominated for a post on the Constitutional Court, was referred to her academic writing on abortion. Suppose she were appointed, would the views she had expressed mean she should recuse herself were a case involving abortion to come to the court?

A similar question was put to Judge Edwin Cameron during an interview with the commission some time ago: given his known views on gay rights, would he stand down when a related issue was brought to court? Interestingly, no one has ever suggested that judges who might find the sexual orientation of their colleagues a "hindrance" should be asked to recuse themselves if a matter that deals with homosexuality comes to court.

The last image comes from the interview with another academic, Professor Philippa Kruger. Asked to give some personal background to the commission, she told them she had been a single parent since her daughter, now 21, was an infant. She also cared for her 81-year-old mother, deaf and going blind. "I know the problems of women working and trying to support a family. I am an ordinary person, Chief Justice."

Having established that, if appointed, she would be prepared to travel from Johannesburg to Pretoria every day, the commission shifted the goalposts by posing a problem that would not have been known to her before she applied. Once the Superior Courts Bill was passed, the High Court in Pretoria was likely to be fragmented and split over Mpumalanga and Limpopo. Would she be prepared to serve on the courts in those two provinces?

When she said this would pose some difficulty in view of her domestic responsibilities, a woman on the commission suggested that perhaps she should get her family to take more responsibility. Bear in mind that she was the only woman candidate out of eight for the four vacancies in Pretoria (where there is only one woman judge at present).

Leaving aside other aspects of her interview, doubt over her hypothetical availability to serve on an as yet non-existent court clearly ruled her out of contention.

Commissioners are repeatedly told of the difficulties faced by single mothers in carving out a life in the law; their indifferent response to the realities raised by Kruger illustrates why the perception continues that the Bench and the profession remain hostile to women.