The role of woman adjudicators in post-apartheid jurisprudence

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.