By Kwanele Mazibuko – University of KwaZulu-Natal

In Schlesin v Incorporated law society, the matter before the court was the question of whether a woman could be admitted as an attorney in terms of section 11 of the Administration of Justice Proclamation and subsequently, whether the Law Society ought to have registered the Applicant’s articles of clerkship. In reaching its decision, the court relied on the wording of the Administration of Justice Proclamation. Interestingly, the court’s interpretation of the wording used was strictly confined to the idea that legislature sought to restrict the applicability of its provisions as worded, solely to male sex and in so far doing, believed the idea that the persons which the legislature accorded rights to be admitted as an attorney could not be women, as this-as far as practice was concerned, had never been the case. Similarly, in Incorporated law society v Wookey, the Appellate Division considered an appeal about whether a woman could be enrolled as an attorney in the province of the Cape of Good Hope as per provisions of section 20 of the Cape Charter of Justice. The court in answering this question, decided that the wording of the abovementioned provisions, was limited to male persons only. The court again interpreted the wording of legislation in alignment with common law practices at the time, which did not permit a woman to be admitted as an attorney.

Attorney – women – application by a woman for registration of articles – admission of women – Charter of Justice sec. 20

INTRODUCTION

The case of Schlesin and Wookey, respectively, drove the narrative that women were excluded from ‘persons’ to which the legislature granted rights of admission to, into the legal profession. This narrative gave rise to the stereotype that women were undeniably unsuitable to partake in judicial proceedings (R P B Davis ‘Women as Advocates and Attorneys’ (1914) 31 SALJ 383 at 385). They were deemed to be unable to comprehend the idea of relevance, analogy and evidence (Mellius De Villiers ‘Note’ (1918) 35 SALJ 289 at 289). Although the extensive

human rights framework in South Africa in the 21st century, deems such remarks as unconstitutional, the legacy of these stereotypic perspectives continues to linger and as a result, hinder the growth of women in the legal fraternity. This note will consider the effects of the Schlesin and Wookey cases in denying the admission of women into the legal profession, thus extending the scope of gender inequality into the workplace and conclude by paying tribute to the remarkable contribution of women since the Women Legal Practitioners Act 7 of 1923 came into effect.

The history of the inequality between men and women lies rooted in the misconception of womanhood and misguided beliefs about the capabilities of women. It is a falsified perspective based not on experience, science, observation or firsthand knowledge but rather, on a relatively construed projection of what man think is befitting of a woman. The case of Schlesin provides a clear illustration of both the history of the unequal treatment of women and a window into understanding the foundation to which this concept of inequality is built. The court in this case, explored all the reasons for not permitting women into the practice of law as attorneys, enlisting society’s general understanding of womanhood, the subsequent societal expectations attached thereof to a woman and the restrictive interpretation of legislation which rejected the idea that woman qualified as ‘persons’ to which the right to be admitted as an attorney were attributed to in the Administration of Justice Proclamation. It [the court] further refused to entertain the idea that perhaps women were constituents forming part of ‘persons’ to which legislation accorded rights and justified this by limiting its scope of reference to practice at the time, which again did not seek to develop the law into allowing women to partake in legal proceedings but only advanced male dominance and consequentially, the exclusion of women.

Similarly, a remark by Deputy Chief Justice Mandisa Maya when she said that ‘Gender inequality nestles at the root of most forms of human rights violations’ provides a better translation of the level of unjustness, unreasonableness and discrimination that is enveloped around the concept of inequality, especially towards women within the legal profession. As such, the case of Wookey is yet another illustration of the exclusion of women in practice and the subsequent quest in battling for admission into the profession. The court in this instance, acknowledged the critical nature of the matter before it, to an extent that it understood the implications of its decision to exceed the personal satisfaction of the applicant in having regard for, ‘others who may be desirous of following’ the applicant’s example and the general public. However, the court was unwilling to believe again, that legislation meant to include women as belonging to the category of persons referred to in the relevant provision. Instead, it used the paradigm as set out by the court in Schlesin, in saying that the wording of legislation when

understood in conjunction with practices at the time, was not indicative of the desire to extend the scope of reference to persons which had been previously excluded and, in that regard, was lacking in suggesting that it had intended for radical transformation of such a nature.

In conclusion, a comprehensive yet summative engagement of the history of the exclusion of women in law through an interaction of the Schlesin and the Wookey cases, provides a layout to which one can begin to appreciate, 100 years later, the appointment of South Africa’s first Female Deputy Chief Justice, Mandisa Maya, because of the understanding of what it has taken for the recognition of women with the enactment of the Women’s Legal Practitioner’s Act. Provisions like Article 8 and 101 of the United Charter which provides that, ‘there shall be no restrictions on the eligibility of men and women to participate in every capacity and under conditions of equality in its principal and subsidiary organs’ are an example of the gradual development of the law and the extension of the human rights framework. Women, although previously oppressed and segregated, form an integral part of the legal profession and continue to make remarkable contribution towards the development of our law and the extension of the human rights spectrum.