As Mogoeng leaves, is it time for a female chief justice?

The announcement of Justice Sisi Khampepe as acting Chief Justice last week was an exciting reminder of just how close South Africa could be to welcoming the first woman as chief justice of South Africa.

Chief Justice Mogoeng Mogoeng’s offices last week announced he was taking three-and-a-half months long leave. Deputy Chief Justice Raymond Zondo has his hands full at the state capture commission of inquiry, so Khampepe has been appointed to take the helm for now.

But with Mogoeng’s constitutionally allowed 12 years as a Constitutional Court judge coming to an end in October, the sun is setting on his time as the helmsman of the judiciary in any case. The question now is, who will succeed him?

In more than a century since the very first ever chief justice was appointed in South Africa, no less than 20 men have been handed the baton. Among them have been some legal giants, with the likes of Arthur Chaskalson and Pius Langa. Not one, though, has been a woman.

Section 8 of the Constitution – which deals with courts and the administration of justice – says “the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”. This extends all the way to the upper echelons of the courts.

There are a number of talented, accomplished and incredible women, like Supreme Court of Appeal president Mandisa Maya and Constitutional Court Justices Leona Theron and Nonkosi Mhlantla, whom the President should be looking at as he prepares to name Mogoeng’s successor.

Representation and getting more women – black women, in particular – on the country’s benches and in the judiciary’s leadership should be a priority. There are different reasons for this.

Representation frames the way those being represented – or not being represented – see themselves. It is, in part, about correcting the message its absence sends out.

But representation also frames how those being represented – or, again, not being represented – are seen by broader society.  In fact, it is what their being seen at all depends on. It gives those who enjoy it a voice.

In what was arguably one of the most significant judgments the Constitutional Court has handed down in recent years, in 2019 it declared the doctrine of common purpose applied in cases of gang rape. In the opening lines of a concurring judgment, which Khampepe in fact authored, was a quote from Alice Walker’s short story, Advancing Luna and Ida B Wells, which she published as part of a collection in You Can’t Keep A Good Woman Down: “Who knows what a black woman thinks of rape? Who has asked her? Who cares?”

In a footnote, Khampepe wrote that the quote’s purpose was “to centre the experiences of the women in this case and also the most marginalised in our society”.

“Rape is a scourge that affects women of all races, classes and sexual orientations, but we know that in South Africa rape has a pernicious effect on black women specifically.  To erase the racial element in this epidemic is to erase the experiences of the women of that horrendous night,” she wrote.

“This ‘intersectional erasure’ is a rhetorical gesture that not only negates the lived experience of women at these intersections of oppressed identities but also means that our response to the crisis will always be deficient and under-inclusive.  Speaking of rape on these terms is not a preoccupation with personal identity but an analysis of the ways in which power impacts particular women.”

This monumental ruling is an example of how representation better allows us to understand the most pressing issues different communities are grappling with and what we need to do to address those issues.

The second woman ever to sit on the US Supreme Court, the late Ruth Bader Ginsburg once said: “I do think that being the second is wonderful, because it is a sign that being a woman in a place of importance is no longer extraordinary.”

This is what we should aspire to. But we’re not there yet.