Nkosikhulule Nyembezi
Progress can often be its own worst enemy. After a week in which the nation’s attention was diverted towards the inadequate understanding of the challenges women face, from numerous barriers to the judiciary and access to justice, what came of the Judicial Services Commission’s (JSC) interviews for the new chief justice reveal that South Africa has a long way to go to live up to expectations on gender and language inequality.
I enjoyed the interviews. Justice Mandisa Maya’s performance stood out, as the only female candidate and as the only candidate who wrote two of her important judgments in isiXhosa.
Listening to her account on daily endeavours in promoting gender equality and indigenous languages in the Supreme Court of Appeal, where she has been president since 2017, was refreshing.
Her passion for inclusivity and plurality in the legal system, as well as encouraging the use of South African languages in courts as an integral part of promoting access to justice, reminded me of my mother.
My mother says language tells us not just who we are, but where we are. It provides us with wisdom that comes from the certainty of being.
As South Africans, we are endowed with languages that speak to our sense of place. The rivers, the mountains, the practices, the taboos, the beliefs, the hills and the waters have names that echo through millennia.
To hear the words in all our official languages fall from the mouths and pens of our judicial officers is to know who we are and where we are in the transformation journey to build a diverse and inclusive nation.
Language and names are markers of identity, even in our courts of law.
Promoting access to justice through a deliberate use of all our official languages ensures that we have a plurality of ways we introduce ourselves to the world; a plurality of ways we explain ourselves to one another as we strive to live up to the values in the Constitution.
I admire the conscious effort by people like Justice Maya, former Constitutional Court Justice Johan Froneman who delivered judgments in Afrikaans and English, and a handful of others to keep our languages and us, the people, alive in the world.
But I am wary too about the fact that the scarcity of exemplary use of all our languages in courts is an indictment of the slow pace of transformation, especially after nearly 30 years of democracy,
As Justice Maya shared her experience, writing judgments or speaking a mother tongue in court is necessarily a humbling experience, forcing the speaker to listen and adapt their perspective, chipping away at those English or Latin philosophical or political certainties that can be limiting, removing barriers and nurturing curiosity.
Moreover, in our diverse nation, it is a more essential skill than ever, not just for career success but all endeavour to promote social cohesion and nation-building.
That point resonates with me, in my role as the chairperson of the Western Cape Language Committee, a member of the Western Cape Provincial Geographical Names Committee, and a regular participant in the activities of the Pan South African Language Board.
The unusual laxity on gender and language inequality in the judiciary may also be a feature of South Africa’s tendency to view itself in terms of relative status.
Listening to interactions between Justice Mbuyiseli Madlanga and EFF leader Julius Malema on whether it was about time South Africa had a female head of the apex court and the judiciary, and how the subject was uselessly diverted to whether the EFF should elect a female as its next leader was just one example of the laxity.
And so, it was intriguing how uniquely the focus of the interviews was also on language diversity as well as gender equality and the glass ceiling in the gender composition of the leadership of the legal profession in general.
The glass ceiling is a commonly used metaphor in the gender diversity debate: an unbreachable (and unseen) barrier that hinders the advancement of women up the judiciary ladder.
But are we focusing on the wrong issue entirely? It soon became apparent that the idea of a single barrier – or glass ceiling – blocking female advancement is outdated and inaccurate.
Today, working environments in the judiciary have changed and so has the challenge of gender diversity.
The reality today, as attested to by all the four candidates, is that attrition in female talent is a gradual process, it does not happen overnight or when women reach a specific level.
Often, women are not held back because of a glass ceiling but because of the cumulative effect of the micro-issues that women face day after day that slows their journey, or stops them getting to the top.
Where do we go from here? Counter-intuitive though it may sound at first, crime prevention experts may have the answer.
There is a theory commonly known as the “broken windows” approach.
It asserts that small acts of crime (littering, graffiti, broken windows and so on) escalate to more serious crimes if left unaddressed.
Translating this into the judiciary world, preventative measures to fix the fairly minor day-to-day issues must be taken now.
The smart parliament, executive, judiciary, and civil society must put the focus on understanding and engaging on the ecosystem of human rights and practices that affect gender and language inequality at every step of the careers of judicial officers.
This means engaging in proper discussions and collaboration with all stakeholders in implementing applicable policies, including language diversity, sexual harassment and parental leave policies.
It includes ensuring there are female role models within the judiciary and making multilingualism and flexible working the norm rather than the exception.
But the road to those benefits will be a long one if we just focus on the glass ceiling.
First we need to fix the broken windows afflicting the majority of official languages as well as female judicial officers’ career progress.
Once this is done, we will find the ceiling much easier to crack.
Nyembezi is a policy analyst and a human rights activist
Cape Times