by Lehlogonolo Matlou – University of the Witwatersrand
Introduction
The legal profession, a realm historically narrowed by gender biases, has experienced a profound transformation in South Africa over the last century. Women have risen to positions of power in the legal profession, addressing long-standing gender inequities. As we celebrate 100 years of women’s participation in the legal field, it is important to reflect on the progress that has been made, acknowledge the challenges that were overcome, and highlight the ongoing efforts needed to achieve true gender equality. Therefore this essay delves into the historical context of gender exclusion in South African law, explores the remarkable progress made by women, and emphasizes the importance of addressing the remaining inequalities.
Denial of Women in the Legal Field: A Historical Overview
The early twentieth century was marked by entrenched gender biases that confined women’s roles to the domestic sphere. South Africa’s legal profession was no exception, with women battling societal norms that prevented them from entering the profession. According to Roman Law Code 2.13.18, ‘[T]o undertake the defence of another is the duty of a male, and is outside the function of the female sex’.1 As a result, women were prohibited from performing any civil or public services, which meant they could not appear before a court of law or a judge, or hold a magisterial post, as they were exclusively reserved for men.
The earliest reported judgment about the prohibition of women to practice law is the case of, Schlesin v Incorporated Law Society.2 Ms Sonya Schlesin applied to the Law Society to register her articles of clerkship with Mr Mohandras ‘Mahatma’ Gandhi. The Law Society refused to register the articles of clerkship due to the longstanding practice of not admitting women to the profession of solicitor. The Transvaal Supreme Court reasoned in its decision that Ms Schlesin was not ‘capable’ of being an attorney and hence was not eligible for admission.3 The Court went on to say that admitting a woman would ‘mean enormous difference in the practice of the courts in
this country, and in any other country where such a change was made’.4 Therefore the application was dismissed with costs.
The application made by Ms Schlesin appears to have been the catalyst for a revolution since a few years later, in 1912, Ms. Madeline Wookey approached the Cape Provincial Division to order the Law Society to record her contract of articles.5 This application was successful for Ms Wookey as the Court found that she was entitled to be articled as an attorney’s clerk and upon attaining the required qualifications, be enrolled as an attorney. The High Court held that because there was no formal law in South Africa forbidding the admission of women, there was no reason Ms Wookey’s contract of articles should not be registered, and Ms Wookey could be enrolled as an attorney.6
The Appellate Division did not agree and in Incorporated Law Society v Wookey,7 overturned the High Court decision. The Appellate Division noted that the decision of the High Court would materially ‘widen the area of women’s economic activities, though that be done by opening to a host of new competitors the doors of an already congested profession’.8 The appeal turned on the question of whether a “person”, used in section 7 of the Law Agents Act, 1873 was wide enough to include women or should be interpreted narrowly. Referring to the practice in the Roman-Dutch courts, the Appellate Division noted that ‘boys under 17 years of age were excluded from the profession of attorneys or advocates, as also women, the deaf, and the blind” as were “pagans, Jews, and pronounced heretics’.9 The Appellate Division concluded that the Legislature’s intention could not have been to overturn the centuries of practice in excluding women that had been established since Carfinia ‘vexed’ the Roman-Dutch authorities. Therefore, the word “person” in the relevant statute had to be read to conform to that practice and women were to continue to be excluded.10
In the years that followed, some truly repugnant articles were published by the legal ‘luminaries’ of the age, including the then Chief Justice Melius De Villiers. In the article ‘Women and the legal profession’11 the former Chief Justice was lauding the exclusion of women as being in the interests of society at large and for the benefit of ‘Motherhood’. He justified this by saying:
‘For the sake of perpetuation of the race, … women are by nature what they are; if in the part assigned to women by nature an injustice is done to them or a hardship is inflicted upon them, these are none of man’s doings, nor can he with the best wishes in the world do anything to make things otherwise. A revolt against nature by women may be successful, but it is the community at large that would have to suffer for it. And a revolt against nature is involved in any proposal to allow women to enter into the legal profession as practicing members thereof. Their entrance into the profession is incompatible with the idea and duties of Motherhood. Women who practice as lawyers will either have to remain unmarried, or marry on the condition of having no children, or marry and under normal conditions have children, in which last case a woman will practice at such a tremendous disadvantage to herself, her clients, and her offspring for some time before and after giving birth to children that she ought to be precluded from practicing.’
Despite such setbacks, women demonstrated an unwavering determination to contribute to the legal field. Notably, the establishment of the Women Legal Practitioners Act 7 of 192312 marked a turning point. The Act opened the door for women by decreeing that: ‘Women shall be entitled to be admitted to practice and to be enrolled as advocates, attorneys, notaries public or conveyancers in any province of the union, subject to the same terms and conditions [that] apply to men…’13 As a result, the Women Legal Practitioners Act played a pivotal role in laying the groundwork for the eventual dismantling of legal barriers, demonstrating that the struggle for women’s inclusion in the legal profession was not only a personal endeavour but a collective movement that transcended generations and individual aspirations.
It did not take long for women to actively pursue careers as lawyers. Irene Geffen was the first woman admitted as an advocate in South Africa in 1923. Three years
later, Ms Constance Mary Hall became South Africa’s first female attorney. Judge Leonora van den Heever became South Africa’s first female judge in 1969 and the first female judge to be permanently appointed to the then Appellate Division in 1991.
The position of black women, however, remained unchanged. While there was no statutory bar to their admission as attorneys or advocates, it was only in 1962, that Ms Zainunnisa Gool was admitted as an advocate at the Cape Bar. In 1967, Ms Desiree Finca of Mthatha became the first Black woman to be admitted as an attorney and Justice Yvonne Mokgoro became the first black female judge in South Africa.
Remarkable Achievements and Progress
As we commemorate the 100th anniversary of women’s admission to the legal profession in South Africa, it is important to acknowledge the enormous progress that has been made. South African women have come a long way, from being systematically excluded from the profession to holding prestigious positions as judges, advocates, and legal scholars. Women’s presence in the legal profession has broadened viewpoints, fostered diversity, and contributed to a more robust and equitable legal system.
Over the past century, the legal field in South Africa has been a witness to remarkable achievements made by women who have risen as pioneers within the field.
Among these inspiring figures are Justices Yvonne Mokgoro and Kate O’Regan, who achieved the historic milestone of becoming South Africa’s first female Constitutional Court Justices. Thulisile Madonsela was a Public Protector, while Mandisa Maya was appointed President of the Supreme Court of Appeal of South Africa and Deputy Chief Justice of South Africa. Lucy Mailula was appointed as the first black female Judge of the High Court of South Africa. Shamila Batohi was appointed as South Africa’s first female Director of the National Prosecuting Authority. These women have not only carved out their paths to success, but they have also collectively overcome institutional barriers that formerly stood in their way. Through their accomplishments, they have paved the path for more possibilities and equality for all women in the legal profession.
The Ongoing Journey: Addressing Inequalities
While significant strides have undoubtedly been made in recent years to elevate women to higher positions within the legal field, the journey toward achieving true
gender equality in this field is far from complete. Women have broken through glass ceilings to assume roles as judges, partners at law firms, and legal scholars, indicating progress in challenging the historically male-dominated landscape. However, these achievements should not overshadow the persistent barriers that women continue to face. Gender inequalities in compensation, promotion opportunities, and representation in leadership positions persist, underscoring the need for continued efforts to level the playing field.14 Additionally, the underrepresentation of women of colour and those from marginalized communities in leadership positions showcases the intersecting challenges that compound the struggle for gender inequality in the legal field.15 True development of gender equality in law requires not just increasing women’s numbers, but also addressing these deep-seated structural challenges.
To achieve meaningful progress, concerted efforts are required at various levels. Legal institutions must prioritize creating inclusive environments that foster the professional growth of all individuals, irrespective of gender. This involves implementing mentorship and sponsorship programs, promoting pay transparency, and ensuring that evaluation criteria are unbiased. Governments and professional organizations must also advocate for policies that support work-life balance, parental leave, and affordable childcare, allowing women to excel without sacrificing their personal lives.
By recognizing the existing gaps and committing to comprehensive reforms, the legal field can move closer to a future where gender equality is not an aspiration, but a reality.
Conclusion
In conclusion, the legal journey toward gender equality has shown great progress and meaningful advances. The Women’s Legal Practice Act has been significant in breaking down barriers and generating possibilities for women in the legal profession. We have progressed from a period of exclusion to having more women than ever before as lawyers, judges, and leaders. However, there is still work to be done. Issues including unequal representation, salary inequities, and unconscious biases still need to be addressed. The legal industry can maximize everyone’s abilities and ideas, regardless of gender by encouraging a culture of fairness and inclusivity, for a more just future. While there are still barriers for women in the legal profession, it is worth celebrating the 100th anniversary of contribution to the profession. In this light, let us encourage continued growth and progress, urging women in the legal field to ascend even higher.
Rise, women in law, rise!
References:
1 Various Rules of Ancient Law: Roman Law Code 2.13.18
2 Schlesin v Incorporated Law Society 1909 TS 363
3 Ibid 365
4 Ibid 366
5 Wookey v. Incorporated Law Society 1912 CPD 263
6 Ibid 270 -271
7 Incorporated Law Society v Wookey 1912 AD 623
8 Ibid 633
9 Ibid 641
10 Ibid 637-640
11 Women and the Legal Profession (1918) 35 SAJL 289
12 Women Legal Practitioners Act
13 Women Legal Practitioners Act
14 Greenbaum, L. (2009). A history of the racial disparities in legal education in South Africa. J. Marshall LJ, 3, 1.
15 Greenbaum op cite note 14