For many years, South African women have endured a perpetual struggle in achieving gender equality within society. South Africa’s constitutional dispensation, however, has created the foundation upon which gender transformation can be brought about. The South African judiciary has been reinvented to mirror the image of the racial and gender composition of South Africa.
Apartheid endorsed a patriarchal society within South Africa which, as a result, racialised gender and generated a system of sexual subordination, including the idea that women were second-class citizens who play the role of tending to domestic needs such as child-rearing.[1] To perceive how women were perceived, one need only consult the words of former Chief Justice, Melius de Villiers, who stated that women’s entrance into the profession of law is incompatible with the notion and duties of Motherhood. The former Chief Justice held that, only when a woman is deemed incompetent in carrying out her duties of Motherhood, should she be permitted to enter the profession.[2]
As a result of the social norms of the time and the entrenchment of these patriarchal values under the apartheid regime, the South African judiciary’s gender composition was not representative of the people of South Africa, and the improvement therein was greatly hindered. Furthermore, under the apartheid dispensation, the judiciary was subordinate to parliament due to the doctrine of parliamentary supremacy.[3] Thus, the judiciary itself was not an independent institution and had very little power to protect individual rights.
The judicial appointment process promoted and contributed to the creation of a bench which broadly reflected the overwhelming predominance of a male culture in the apartheid-era judiciary. In 1994, out of one hundred and sixty-six (166) judges, one hundred and sixty-four (164) judges were males.[4] The effect of this was that laws that produced gender disparity were upheld while calls for gender transformation were ignored. Women, in any case, only became eligible to be admitted and enrolled as legal practitioners when the Women Legal Practitioner Act 7 of 1923[5] came into effect, and women’s entry into the highest levels of the judiciary was much delayed.[6]
Under the constitutional dispensation, the Constitution of the Republic of South Africa, 1996 (“the Constitution”) regulates the appointment of judges by the President guided on the advice of the Judicial Service Commission (“the JSC”).[7] Therefore, the judiciary is now subject to the Constitution and must remain independent from state interference.[8] In terms of section 174(2) of the Constitution, “The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”.[9] This set the platform for gender equality as it forces the President to consider gender when appointing judges, resulting in what ideally should be an equal judicial front of both men and women. The Constitution also expressly contains a right which not only protects but also enforces the right to equality and non-discrimination of people based on gender.[10] Thus, the Constitution and the rights within it create a “prominent and unequivocal commitment to gender equality and women’s rights”.[11] The transformation in terms of the gender discrepancy is evident from the change from 1994, where females comprised only just over 1% of all Judges. The statistics in 2017, show that, at the time, 65% of Judges were female, and statistics from 2016 show that, at the time, 56% of Magistrates were female.[12] This is a vast difference, from women being perceived by the Chief Justice as incapable to take up positions on the bench, to comprising the majority of it.
It bears mentioning that there are two organisations that specifically cater to women in law. The South African Chapter of the International Association of Women Judges (“SAC-IAWJ”) is an international organisation aimed at “… the empowerment of female judicial officers, who are magistrates and judges”[13] and “the creation of an inclusive judiciary”.[14] On the other hand, the South African Women Lawyers Association (“SAWLA”) is aimed at protecting and promoting the rights of women in law. SAWLA aims to “…play an effective role in the transformation of the legal profession, judiciary and the justice system to promote the legitimacy of the justice system”.[15]
In conclusion, the South African judiciary, during apartheid, excluded women and maintained systemic gender inequality. Women were therefore not allowed equal entry into the upper echelons of legal profession. However, South Africa’s judiciary under the constitutional dispensation has made significant strides toward gender transformation through constitutional mandates and progressive organisations such as SAC-IAWJ and SAWLA.
[1] Andrews PE ‘From Gender Apartheid to Non-Sexism: The Pursuit of Women’s Rights in South Africa’ (2001) 26 N.C.J. Int’l L. & Com. Reg 698.
[2] Mpati L ‘Transformation in The South African Judiciary- A Constitutional Imperative’ (2006) 2 High Court Quarterly Review 79.
[3] Bruce D & Gordon A Transformation and The Independence of The Judiciary in South Africa (2007) 20-21.
[4] Bruce D & Gordon A Transformation and The Independence of The Judiciary in South Africa (2007) 20.
[5] Women Legal Practitioner Act 7 of 1923 s 1.
[6] Mpati L ‘Transformation in The South African Judiciary- A Constitutional Imperative’ (2006) 2 High Court Quarterly Review 79.
[7] The Constitution of the Republic of South Africa, 1996 s 174.
[8] The Constitution of the Republic of South Africa, 1996 s 165 (2-3)
[9] The Constitution of the Republic of South Africa, 1996 s 174(2).
[10] The Constitution of the Republic of South Africa, 1996 s 9.
[11] Cowan RB ‘Women’s Representation on the Courts in the Republic of South Africa’ (2006) 6 The University of Maryland Law Journal of Race, Religion, Gender & Class 291.
[12] The ‘Discussion document on gender transformation in the judiciary and the legal sector’ (published in GG 41766 13 July 2018) 94-96.
[13] The South African Chapter of the International Association of Women Judges ‘Welcome to the website of the South African Chapter of the International Association of Women Judges’ Available at https://justice.gov.za/saiawj/index.html (accessed 18 August 2025).
[14] The South African Chapter of the International Association of Women Judges ‘Welcome to the website of the South African Chapter of the International Association of Women Judges’ Available at https://justice.gov.za/saiawj/index.html (accessed 18 August 2025).
[15] SAWLA ‘About us’ available at https://www.sawla.co.za/ (accessed 18 August 2025).
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