Weaponising Gender in South Africa’s Chief Justice Appointment

Ros Dixon argues that “[p]lacing women in high office reflects commitments to fairness, diversity and equality of opportunity. But it also creates opportunities for anti-feminist, would-be authoritarians to use women’s descriptive representation to advance and legitimate their own sexist, authoritarian projects”.¹⁾

The South African Judicial Services Commission’s (JSC) interviews for the country’s Chief Justice in 2022 provide a fascinating example of this phenomenon in the context of political struggles around corruption and accountability in South Africa.²⁾

Democracy under pressure

South Africa’s constitutional democracy was widely praised at its birth in the 1990s, not least because of its powerful commitments to gender equality and the advancement of women within its institutions, including the judiciary. In particular, section 174(2) of the Constitution confirms “the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.”

However, this democracy came under considerable pressure during the tenure of its third President, Jacob Zuma, a period marked by state capture, corruption, the hollowing out of state institutions and the visible fracturing of the ruling African National Congress (ANC). Here, the Radical Economic Transformation (RET) faction, made up of patronage networks under Zuma, vied with those within and outside the ANC who sought to contain corruption and defend constitutional democracy. Closely aligned to the RET faction was the Economic Freedom Front (EFF), formed in 2013 by Julius Malema, who had been expelled from the ruling party.³⁾

As interpreters and defenders of constitutional democracy, the courts were increasingly drawn into disputes about accountability, state capture and corruption, leading to increasing tensions between the judiciary and certain factions in the ANC.⁴⁾ A significant milestone in efforts to instill accountability was the appointment of the State Capture Commission of Inquiry⁵⁾ into allegations of corruption within the South African state, with then Deputy Chief Justice Zondo at its head.⁶⁾

Gender as proxy

It is little surprise, therefore, that when the position of Chief Justice became vacant, the question of succession was heavily contested. Not only would the Chief Justice have to provide intellectual and administrative leadership in the judiciary,⁷⁾ but members of the public required reassurance that the courts, particularly the highest court, would independently and with integrity dispense justice without fear, favour or prejudice.⁸⁾ As chairperson of the JSC, the Chief Justice would also play a key role in the transformation of the judiciary by presiding over JSC meetings, interviewing candidates and selecting judges, and enforcing discipline against errant fellow judges.⁹⁾

Of the four candidates interviewed for the position, two had strong records of fighting corruption: Deputy Chief Justice Zondo and Judge Mlambo, leader of Gauteng courts where many corruption cases had been successfully fought. Also in the running was Justice Madlanga, a sitting Constitutional Court judge, and President Mandisa Maya, the first black female leader of the Supreme Court of Appeal (SCA). Judge Maya was widely praised for her role in advancing women judges and administration at the SCA but had no record on state capture judgments. In this context, the interviews drew a great deal of public interest – not only because, for the first time, a woman was in contention for Chief Justice and leader of the judiciary, but also because of the central role of the South African courts in adjudicating corruption and state capture. Thus, even as the need to enhance women’s representation in judicial leadership was indisputable, the politics of the appointment and the roles, or perceived roles, which the four candidates had played in dealing with state corruption, resulted in the idea of gender equality functioning as a proxy for other political battles.

Of course, the JSC itself was not immune to the politics of the time, nor was it the first time that gender has been used as a proxy in JSC interviews preceding the appointment of the Chief Justice.¹⁰⁾ This time, gender and politics converged in two lines of attack by EFF- and ANC- aligned commissioners. First, a persistent questioning of the candidates about the need for gender transformation in the judiciary seemed to imply that the three male judges should not have made themselves available, or should withdraw in favour of Judge Maya and express opinions in favour of appointing her. Second, and belying the pious consensus on the need for gender transformation in the judiciary, was the deliberate and naïve sexism directed towards the only female candidate. Even more outrageous, and clearly directed at delegitimating Judge Mlambo’s candidature, were the unsubstantiated rumours of sexual harassment directed at him, raised for the first time during the interviews and later confirmed to be baseless.¹¹⁾

The contradictory outcomes of abusive feminism

In the end, some members of the JSC relied on gender equality and transformation to justify their refusal to recommend the two judges most closely associated with the fight against state capture. Judge Mlambo was sidelined through scurrilous and false accusations of sexual harassment, as well as insinuations of political support for President Ramaphosa. A lack of concern with gender and racial transformation was used against the appointment of Justice Zondo.¹²⁾ Judge Maya’s recommendation was justified primarily by gender equality concerns, as a member of the JSC explains to the media:

“Gender played a huge role in the JSC decision, including her leadership, people skills and administrative and management capacity. There was no question that all the candidates were qualified but Maya united the JSC because Mlambo was divisive politically. We felt that Zondo comes with baggage and is almost out anyway […]. It was a tight race between her and Mlambo in terms of the strength of each candidate, and age is still on their side. But Maya was the clean candidate politically and it was not easy to argue against that.”¹³⁾

The President exercised his decision-making power to appoint Justice Zondo and later appointed Judge Maya as Deputy Chief Justice.

As the 2022 interviews illustrate, constitutional norms of transformation and gender equality in the judiciary can simultaneously enhance, impede, delay and accelerate the progress of women judges. Nevertheless, the abusive feminism on display, as part of wider attempts at political manipulation within the JSC, generated positive changes: those commissioners implicated were removed by their constituencies,¹⁴⁾ and a revitalised Commission emerged to focus more on the qualities and skills expected of judges and judicial leaders, than political agendas.¹⁵⁾ Two years later, when Justice Zondo retired in 2024, Deputy Chief Justice Maya was interviewed again and appointed as South Africa’s first female Chief Justice, a move that was widely welcomed. And in a postscript to this story, in July 2025, Judge Mlambo was recommended to the President for appointment as Deputy Chief Justice by the JSC in a move billed as correcting a “major injustice”.¹⁶⁾