Abstract:
Female judges who have occupied a seat and those that are still sitting on the
Constitutional Court are in the minority compared to their male counterparts, who
occupy a majority of the seats. This disparity, in part, contributes to the lack of
judgments that follow a feminist approach. This means that most judgments will most
likely not benefit women. In this mini-dissertation I draw awareness to the lack of
gender representation that has, in turn, hampered the impact that female judges
have in the advancement of gender equality jurisprudence.
I do so by focusing on two aspects that are closely related. In the first fold, I look at
the Constitutional call for gender representation in our judiciary and argue its
importance by highlighting that the presence of women makes a difference and it
brings legitimacy to the judiciary. In the second fold, I agree that gender
representation is important, however, I argue that it is not sufficient. Our
Constitutional Court, in addition to women judges, needs feminist judgments that will
profit women litigants and propagate a feminine discourse and an ethics of care in
law. I refer to the work of Mary Jane Mossman where she looks at three principles of
legal method, namely, characterisation of the issue, choice in precedence, and the
interpretation of statutes. I do so in conjunction with two (out of four) aspects of
judging highlighted by Rosemary Hunter, namely, extra-judicial activities and the
court process, as solutions to the principles by Mossman.
To elaborate on the second fold, I consider two minority judgments from the
Constitutional Court that are examples of feminist judging, namely, the Jordan and
the Volks cases. I show how the women judges, through the minority judgments,
looked at the facts broadly and holistically, and not through a formalistic approach.
