By Lesedi Lekoto – University of the Witwatersrand

A blindfolded woman holding the scales of justice in one hand, and a sword in the other is the very symbol of the noble profession. It is thus ironic when one considers that women, for the longest of times, were barred from being legal practitioners despite the representation thereof being in their likeness. In South Africa, it was only in 1923 when the Union Parliament

passed the short, but impactful Women Attorneys Act which allowed women to be admitted as legal practitioners— almost 300 years after the first courts were established in the country! The judgements made in Schlesin v Incorporated Law Society and Incorporated Law Society v Wookey, as well as the experiences of women such as Desiree Finca and Advocate Bertha Solomon point to a society where women’s innate ability to reason and actively engage with

the powers that be was simply ignored. The result thereof was that women were usurped of a platform to challenge the systems which kept them in a state of subjugation.

The first recorded instance of a woman applying for admission into the profession concerned Sonja Schlesin. Energetic and intellectually robust, Schlesin not only completed her

apprenticeship under Mahatma Gandhi with poise, but was also involved in the running of Gandhi’s law firm in his absence. Furthermore, Schlesin’s inclination towards the equal

treatment of all people irrespective of their social grouping made her an even better candidate to steward the work of Lady Justitia. Yet, she was denied admission into the profession

simply because she was a woman. In this judgement, Bristowe J posited that the term

‘attorney’ had always referred to men, and because no woman had ever been admitted into the legal profession, it would go against the doctrine of precedent to order Schlesin’s

admission therein. Bristowe J further went on to say in this judgement that admitting women into the profession would bring “negative change” in society. This sentiment would be

reiterated 3 years later in the Wookey case.

The court in Incorporated Law Society v Wookey held, in accordance with Roman-Dutch law, that the word “persons” in the Cape Charter of Justice Act did not refer to women. Innes ACJ justified his decision to refuse Wookey admission by referring to the Roman law of the

twelve tables which provide that representing people in court is the duty of a male. This legal principle hinged on the undermining of women’s mental capacities— rendering them equals

to minors and subsequently qualifying them to be under the perpetual control of their fathers and husbands. The court upheld this principle by quoting a translation of Dutch authority van Leeuwen, who maintained that “the whole of womankind by reason of an inborn weakness is less suited for matters requiring knowledge and judgement than men”. Solomon J in his

concurring judgement held that the drafters of the statute in question did so “contemplating men only, legislating for men only, and had no thought of introducing any change into the well-established practice of the Courts”. This was in direct contestation with the court a quo

which ratified Wookey’s admission through its liberal (and correct) inclusion of women in its interpretation of the word “persons”. The court a quo posited that women who exhibited

competence in their articles of clerkship should, as a natural consequence, be admitted into the profession.

Upon much scrutiny of the above judgements, one realises that for an entity that deems itself rational and impartial, the courts’ justifications lacked analysis which would pass the

objectivity test. Schlesin was afforded no account as to why precedent was objectively

justified in excluding women, nor was there an explanation of the “negative changes” that her admission into the profession would bring in society. Wookey was simply told that the

question of her application was not whether she was “likely, adequately, or satisfactorily to discharge the duties of a legal practitioner” but whether the law would allow her admission.

This was especially glaring given that she showed such aptitude for legal work that a law firm was willing to hire her. The dismissal of these women’s applications for admission even though they would have been of profit to the profession constitute a textbook case of

irrationality.

In addition to the above flaws in reasoning, the judgements also contravened natural law,

which arguably forms the basis of all other forms of law. In his letter from Birmingham Jail, Martin Luther King Jr. holds that “an unjust law is a human law that is not rooted in eternal or natural law. Any law that uplifts humanity is just. Any law that degrades humanity is unjust”. The Schlesin and Wookey judgements, as well as others similar to them, counter

natural law as per King’s account because they unjustly limit women’s ability to self-

determine: As a result of this judgement, Schlesin relinquished her dream of becoming an attorney, and went on to become a teacher instead. While she thoroughly enjoyed her new

vocation, it is unjustifiable that men could confidently define what she could and could not do with her life purely on the basis of her being a woman. The courts’ interpretation and

application of the law in these cases affirms the feminist perspective that behind men’s claims

to neutrality and objectivity lies the reality that the law is an instrument of women’s subordination.

Fourteen years after the first woman’s application to become an official member of the noble profession, the Women Legal Practitioners Act was enacted. Despite this, several women

were yet to fully enjoy their statutory right to admission. The first woman advocate, Irene

Geffen, was admitted into the profession in 1923. Constance Mary Hall, however, still had to endure the painful lashes of a system that was only beginning to restrain its hostility towards women. She was initially denied the registration of her articles in 1921. When the Act was

passed in 1923, de Waal J argued that it could not be applied retrospectively, therefore Hall had to redo her articles of clerkship. The ruling was undeniably a deterrence mechanism

because it added an unnecessary hurdle for Hall and many other women who already

qualified for admission at the time of the Act’s promulgation— it showed a hesitance by the judiciary to welcome women into the profession even though the legislature deemed them fit candidates for legal practice. But why would this be the case?

The statutes of the day not only discriminated across racial lines but also on the basis of sex. This translated to a society where white men lawfully dominated the social hierarchy. For this reason, the admission of women into the legal profession would fast-track the demise of the

prevailing patriarchal structures in status quo. This is the “negative change” that was foreseen in Schlesin and the “few difficulties” that Innes ACJ aptly predicted in Wookey. Advocate

Bertha Solomon, one of the first female advocates in South Africa, advocated for the

abolishment of matrimonial control after her clients, who were mostly women, relayed to her their gruesome realities as a result thereof. This eventually led to the passing of the

Matrimonial Affairs Act which afforded women the right to own their property and income, amongst other things. The passing of this Act and many others that were advocated for by

women in the legal profession signalled the winds of change that would ultimately lead to the constitutionally-protected right to equality in the interim and final Constitutions of our country.

For black women, however, the chains of their oppression were yet to break. Their

intersectional plight culminated in the first black woman being granted admission into the profession as recently as 1967. Desiree Finca completed her articles of clerkship under Godfrey Pitje, one of the founders of the Black Lawyers Association. Apart from the

struggles she had to face in respect of attaining admission to the profession by virtue of being

a woman, she faced the race barrier too. She recalls that a white magistrate once refused to recognise her in court simply because he had never come across a black female attorney

before. Miss Finca had to endure the humiliation of a white colleague verifying her

credentials at the instruction of the magistrate. As a harder slap across her face, it was only after a prominent white lawyer testified about her legal prowess that she was allowed to

appear before the court. The dehumanising intersectional predicament that Finca experienced more than five decades ago seems to have wormed its way into our democratic dispensation, albeit in a more nuanced manner— black female legal practitioners still have to go the extra mile in proving their abilities. Thus, even though much has changed, a lot more still needs to be done to remedy the plight of woman legal practitioners in the country.

The women of the yesteryears fought for mere entry into the profession. The challenge that presently stands before us is not that of entry, but that of creating a legal profession that is firstly, more sensitive to the grievances of women in the workplace and secondly, more

representative of the demographics of the country. Never again shall women in this country go back to having men dictate the vocations that they can pursue, nor will their abilities be subject to the validation of their male counterparts. No more will a woman have to work

twice as hard as her male counterpart and still struggle to attain well-deserved recognition.

We do not just stand on the shoulders of giants, but do so boldly, and cement our rightful

place as legal practitioners who are worthy and capable. We grieve on behalf of the women who were denied the opportunity to form part of this noble profession due to the unjust laws of the past, but we also brace ourselves to fight for our sisters who will one day follow in our footsteps. A legal profession with women aggrieved cannot be said to embody the ideals of

Lady Justitia. Aluta continua!