ConCourt interviews | Judge Kathree-Setiloane urges JSC to appoint ‘strong competent women’

Strong competent women should be appointed to positions of authority in SA courts rather than “paying lip service” to the issue of gender transformation.

This is according to judge Fayeeza Kathree-Setiloane, who didn’t hold back when she was questioned what message would be sent out to South Africans should she be appointed a judge in the Constitutional Court.

Listen to her response: 

During her interview on Tuesday with the Judicial Service Commission (JSC) for one of two Constitutional Court vacancies, Kathree-Setiloane was showered with well wishes from some interviewers, including EFF leader Julius Malema. 

She was the second candidate to be interviewed in contention for a seat at the country’s apex court. 

One of seven female researchers appointed at the inception of the Constitutional Court in 1995, Kathree-Setiloane became the first person from the ConCourt’s law researcher programme to be appointed to the judiciary. 

When questioned about the ConCourt’s representation of judges, she made her feelings known. 

“The ConCourt comprises of five male judges and three female judges. In the last round of interviews, the president, and that is his prerogative, appointed two male judges to the ConCourt. The constitution makes it quite clear the judiciary needs to be transformed and there is a need for the courts to reflect the gender and race composition. I am a woman judge and it is important for the courts to be equipped with more women judges. As a woman judge I will add to representation and diversity in  that court.”

She made it clear women shouldn’t be appointed for the sake of meeting quotas. 

“It is very important not to pay lip service to the issue of gender but to make appointments of strong competent women. You don’t appoint women because they are women and for the sake of being women, but you appoint women who are competent, who are skilled in a particular area of law and are committed to the objectives of the constitution.”

Kathree-Setiloane acted in the ConCourt from July to December 2017 and the Supreme Court of Appeal (SCA), the Labour Appeal Court and the Competition Appeal Court.

She told justice minister Ronald Lamola she was more “tempered” and a “calmer individual” since her interview in October. 

The JSC was forced to redo interviews for the posts this month after the Council for the Advancement of the SA constitution challenged its lawfulness and constitutionality.

“It helped me grow in strength, it helped me develop as a judge. It helped to point out what is needed as a judge in terms of strength, character, humility, patience, ability to be fair and objective and in terms of ability to be unbiased. This room brings a lot of wisdom for any character who appears before it.”  

Chief Justice Raymond Zondo outlined some of the supplementary criteria each candidate needed to meet to be considered for the position.

She was questioned about an essay she wrote when contributing to the book in honour of former deputy chief justice Dikgang Moseneke titled A warrior for justice: Essays in Honour of Dikgang Moseneke. Under the subsection Justice Moseneke and economic justice, Kathree-Setiloane outlined some of her thoughts.

“The article basically recounts to what extent this wonderful constitution provides all these rights and entrenches these rights, and what are the challenges faced. We've been so involved in political cases, the ConCourt and high courts have, in recent years that there is a need for NGOs and communities to bring matters to the court that will bring content to the socioeconomic rights in the constitution.”

She highlighted the case of the Residents of Industry House vs the Minister of Police and Others in which searches and seizures without warrants were conducted by police members on private homes, resulting in the infringement of people’s rights, as a judgment upheld by the ConCourt. 

She was lauded by National Assembly speaker Nosiviwe Mapisa-Nqakula, who hailed her 2006 ground-breaking judgment to recognise same sex marriages in the country.

“As a result we now have a Civil Unions Act. I’m the minister you directed to do that and I can assure you it was one of the most traumatic experiences at the time to have to effect that. Reason being that you took that decision when it was not fashionable for South Africans to even talk about the LGBTQI+ community. I think that is something South Africans should commend you for.”

Mapisa-Nqakula highlighted a programme by Kathree-Setiloane which aimed to place black women from disadvantaged communities in large corporate firms, and pleaded for her to continue to do so if she was appointed as a ConCourt judge.

When probed about her views on the Customary Marriage Act, she said the act had good intentions but needed to be properly implemented.

“The default position is that marriage is a marriage in community of property and not one out of community of property. Customary law must also be consistent with the constitution, to the extent that when customary law is not, the courts would have to intervene to make it consistent.”

She said women, particularly in rural areas, were not aware what their rights were under customary law, and said education around the meaning and consequences of the act needed to be done.

“The act basically aligns customary law marriages with the values of our constitution and the bill of rights, and there needs to be a lot more education regarding the protections the act offers to women who choose to be married under such regime.”

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