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a woman and there are women judges in the Court of Appeal. There may not yet have been a female judge on the Appellate Committee or an ethnic minority full-time judge in the High Court or above, but there are individuals who appear set to break this record imminently. As Lord Irvine said in 2001: “I would expect to see more women and people from minority ethnic communities being appointed as increasing numbers of practitioners from these groups reach the stage in their professional lives where appointment as a judge becomes a real prospect.”51 If such a shift is happening of its own accord, it would seem overly heavy-handed to apply such blunt tools as quotas or targets, with all their ensuing problems. Pointedly, despite having a recent history overwhelmingly more scarred by social division than our own, South Africa has no set quotas or targets for judicial appointments: its constitution requires simply that the need for the judiciary to broadly reflect the country’s racial and gender composition be considered when the selections are made.52 We would do well to follow suit. Other ways of encouraging a more diverse judiciary There are other ways, besides quotas and the presence of lay people on the Judicial Appointments Commission, through which the judiciary can become more reflective of society. This is particularly so, since much of the problem is not that ethnic minorities and women are being discriminated against under the current appointment process, but rather that these groups of people are “under-represented as a
51 52
Annual Report on Judicial Appointments 2001-2001 (Lord Chancellor’s Department, 2002), foreword. The Constitution of the Republic of South Africa No. 108 of 1996 section 174(2).