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A NEW CENTURY, BUT THE SAME PROBLEMS FOR WOMEN IN THE LEGAL FIELD
Essay Winners - Round 1

by Rashmika Singh – Varsity College (Westville, KwaZulu-Natal)

Introduction

It was only in the late 20th century that black women were allowed entry into the legal profession. Before then, women were not considered to be “persons” for the purpose of legislation. After the democratic transition, the 1994 Constitution was drafted in the spirit of inclusion. Women are now not only allowed but encouraged to enter the legal field (at least in terms of statute.) In this regard, section 174(2) of the Constitution provides that the racial and gender composition of South Africa must be considered when judicial officers are appointed.

Despite this provision (and the statutes promoting affirmative action), there is very little female representation in upper levels of the judiciary and the broader legal sector.

This essay will explore some of the reasons why women remain excluded from the legal field, even a century after their entry into it.

1.  Judicial attitudes of the twentieth century

The first black male attorney was admitted in 1910, which is over fifty years before the first black female attorney was admitted in 1967. Desiree Finca of Mthatha is still alive to recount multiple instances of being questioned by judges regarding her qualifications.

While black men undoubtedly faced racism, black women faced the doubly oppressive racist and patriarchal state.

While the current state is still patriarchal, judicial attitudes have changed dramatically. Klare and Mureinik describe these judicial attitudes as having changed from a culture of authority to a culture of justification. Their analysis is accurate even regarding feminist issues.

In Transvaal Supreme Court, Schlesin v. Law Society, the court found that it is not the judiciary’s duty to interpret or question Acts. The court emphasized a strict separation between the judiciary and the legislature. The Apartheid-era courts also exercised an idiosyncratic “apolitical” stance, whereas modern judges incorporate political considerations into their judgements.

If the abovementioned case came before a court in 2023, the court’s reasoning would be vastly different. In Carmichele v Minister of Safety and Security and Another, the court ruled that the state has a positive duty to protect women. Similarly in Bhe and Others v Khayelitsha Magistrate and Others, the court found the customary law concept of male primogeniture to unfairly discriminate against women. Both decisions were debated at length, with reference to legislation and the socio-economic realities of South Africa.

While the feminist implications of these judgments are debatable, they show a judicial willingness to engage with women’s issues.

2.  A new century, but not much has changed

While the judgements in Bhe and Carmichele are encouraging, most of the judges involved in the case were male. Despite legislative measures being implemented, very little gender transformation has occurred in Constitutional Court and the Supreme Court of Appeal. At the High Court level, however, things are more encouraging. Similarly, the increase in female magistrates from 1998 to the present is 134%.

One must question, however, whether an incremental increase in (mainly white and Indian) female judges is sufficient to overturn centuries of racist and patriarchal oppression. Bonthuys argues that media debates surrounding judicial appointments are often dichotomous and simplistic. The first dichotomy is the consideration of race and merit (as if these two factors are mutually exclusive.) The second dichotomy considers racial transformation and gender transformation—when the judiciary would greatly benefit from the perspective of African and coloured women.

Bonthuys also mentions the issues that inevitably arise for marginalized people during the early stages of transformation. When members of the JSC relentlessly bully female candidates, it is unreasonable to expect female judges at higher levels to embody true feminist ideals. Women at higher levels are likely to be concerned about assimilating and adhering to current judicial norms, rather than challenging them.

The current gender transformation of the judiciary is likely to err on the side of tokenism. The JSC’s attitude is incredibly dismissive of feminist issues, especially regarding the gendered implications of domestic labour, and how said labour falls on female judges.

The JSC was content to overlook black male candidates’ lack of acting experience to promote racial transformation. They refused, however, to do the same for female candidates in the interest of gender transformation.

Transformation of the judiciary also cannot happen without transformation of the advocates’ profession. The latter is still overwhelmingly white and male. Masengu illustrates that even when black female advocates are suitably qualified, they are seldom briefed, and may even leave the Bar because white firms refuse to approach them.

Masengu and Bonthuys also illustrate the patterns of transformation in the attorneys’ profession. Masengu argues that because corporate law clients are generally white, male, and middle class, they seek to employ attorneys who look like them. Clients’ unconscious biases are thus slowing transformation.

Bonthuys further illustrates that although many women are admitted as attorneys, they opt not to practice. She argues that this gender imbalance must be attributable to issues within the profession.

3.  Concluding thoughts

A century of women in law is undoubtedly worth celebrating. Despite this success, the legal field remains predominantly white and male at the higher levels. This is unsurprising given that both Afrikaner and African nationalism viewed women as wombs of the nation, rather than as innate rights-bearers.

The legal field will only be emancipated from this degrading patriarchal rhetoric when transformation is viewed as more than the mere presence of women in institutions of power. There needs to be a greater focus on the appointment of feminist judges, rather than female judges. The latter are more likely to challenge patriarchal institutions, and advance women’s interests.

BIBLIOGRAPHY LEGISLATION

  • Broad Based Black Economic Empowerment Act 53 of 2003 Constitution of the Republic of South Africa 1994 Employment Equity Act 55 of 1998

CASE LAW

  • Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004)
  • Carmichele v Minister of Safety and Security and Another [2000] ZASCA 149; 2001 (1) SA 489 (SCA).
  • Incorporated Law Society v Wookey 1912 AD 623
  • Transvaal Supreme Court, Schlesin v Law Society 1909 TSC 363

LAW JOURNALS

  • Bonthuys, E “Gender and race in South African judicial appointments” (2015) 23 Feminist Legal Studies 127-148
  • Klare, K “Legal culture and transformative constitutionalism” (1998) SAJHR 14(1) 146-188
  • Masengu, T “It’s a man’s world: barriers to gender transformation in the South African judiciary. Perspectives from women advocates and attorneys” (2016) International Journal of the Legal Profession 23(3) 305-319
  • Masengu, T “A perspective on women and leadership in the South African judiciary” (2015)
  • SAJHR 657-666
  • Mureinik, E “A Bridge to Where? Introducing the interim Bill of Rights” (1994) SAJHR 10(1) 31-48

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