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The Trials and Tribulations for the Existence of Women in the Legal Profession
Essay Winners - Round 1

By Qiniso Radebe – UNISA (Durban Campus)

The rise and recognition of women in the legal fraternity came after a long and an intense ‘tug-of-war’ in the 20th century. Prior to going in-depth, it would be fair and of utmost importance to highlight the lamentable beginnings, the essence of women in the field, as well as the current progress and/or dilemmas.

The first women to appear in the law reports seeking to be admitted as an attorney was Sonya Schlesin (Schlesin v Incorporated Law Society 1909 TS 363) who had been articled to Mr. Gandhi. Based on some convoluted reasoning, the Transvaal Supreme Court held that because the word ‘attorney’ had always been referred to people ‘of that class who have always been capable of being attorneys’, namely men. Bristowe J went on to say that admitting women as attorneys could also lead to them being admitted as advocates, ‘a change which would mean an enormous difference in the practice of the courts in this country’ and he clearly did not mean a positive change. Ms. Schlesin was turned away and had to pay the law society’s costs for the application. Presumably hoping for more liberal justice in the Cape Supreme Court, Madeline Wookey, sought to compel the Incorporated Law Society to register her articles of clerkship and notary practicing in Vryburg (Wookey v Incorporated Law Society 1912 CPD 263). She was right. After Maasdorp JP found that because there was no positive law in existence disqualifying women from being enrolled as attorneys, her application succeeded.

Although the application was granted on the basis that no-good cause was shown as to why women should not be entitled to sign articles. Madeline Wookey failed on appeal in front of three judges of the Appellate Division (Incorporated Law Society v Wookey 1912 AD 623) whose remarks in the judgement are still quoted in Constitutional Court judgements today as examples of prejudice. The position was ‘simply’ that she was not the ‘person’ referred to in the Cape Charter of justice of 1883. To negatively advance

the matter, the former Chief Justice of the Orange Free State, Melius de Villiers, wrote an equally prejudiced article ‘Women and the legal profession’ (1918) SALJ 35 289. He claims that 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 the or hardship is inflicted upon them, these are none of men’s doings, nor can he with the best wishes in the world do anything to make the situation otherwise.

To the credit of Parliament, they ignored all these views and showed themselves to be good examples of what De Villiers CJ had condemned as ‘doctrinaire liberalism’, ignoring the suggestions that it was against common sense and a common danger to allow women into the profession. On the 10th of April 1913, the Women Legal Practitioners Act 7 of 1923 was promulgated by publication in the Government Gazette. The Act is short and sweet. It provides that: ‘Women shall be entitled to be admitted to practice and to be enrolled as advocates, attorneys, notaries public, conveyancers in any province of the Union, subject to the same terms and conditions as apply to men, and any law in force in any province of the Union regulating the admission or enrolment of persons as advocates, attorneys, notaries public, conveyancers shall henceforth be interpreted accordingly’.

One would be baffled by the question that, with one hundred years (100) into the promulgation of women in the legal profession, what do the statistics look like in relation to gender inequality in the society? The reality is – gender inequality is still rife in the South African society. According to the Lexis Nexis Legal Tech Report for 2021/22, there are currently 13000 law firms in South Africa. Of that, there are approximately 54000 professionals which are made up of attorneys, advocates, conveyancers, notaries and candidate attorneys. And while that sounds positive, women are still in the minority. This is especially obvious when looking at the ownership of law firms. In 2016, 53% of law firms were owned by men. Only 20% were fully female owned and only 27% had mixed male and female ownership. Five years later and the numbers have only

improved slightly. 47% of law firms are owned by men, 27% are now fully owned by females, 26% of law firms have mixed male and female ownership.

Looking towards the Judiciary, the results are as alarming. According to JudgesMatter – “The gender composition of the judiciary is still misaligned with the gender composition of South African society, which is female dominated. In 2016, the male/female bias was 145 male judges (64%) to 82 female judges (36%). September 2020 sees 134 male judges (58,5%) to 95 female judges (41,5%). According to an op-ed by Daily Maverick titled “The appointment of female judges to superior courts is not a favour to women – it’s a favour to justice”. It provides that, ‘only three full-time justices at the Constitutional Court are women and there has been no women Chief Justice in the 26 years since the establishment of the court’. The op-ed further provides that, ‘out of 14 heads of superior courts in South Africa, only three are women, which is genuinely appalling. This includes the Judge Presidents of the High Courts, the President of the SCA and the Chief Justice. However, the appointment of Justice Mandisa Maya as Deputy Chief Justice is worth commemoration – a huge milestone.

It is, however, important to highlight the need to applaud the struggle of acceptance and equality in a time of pre-enactment of the Constitution of the Republic of South Africa, 1996. Chances of the granting of articles of clerkship and/or the admission of legal professionals were slim. If the struggle was post-enactment of the Bill of rights, when would argue that the struggle was going to be an easy one with the assistance of section 9(1) of our Bill of rights, stating that – “Everyone is equal before the law and has the right to protection and benefit of the law”. Chapter 3 of the bill deals with representation and empowerment of women. The first part of this section mandates that public and private bodies must develop and implement plans to achieve 50% representation and meaningful participation of women in decision-making processes. Therefore, the struggle stalwarts should be given their ‘flowers’ as part of the commemoration of the success.

As we swiftly move along, Emer Simic emphasizes the essence of women in her article. She states that, “Of all the factors that influence women’s experience at law firms, recognition should be the easiest to remedy”. Simic, a partner with Green, Griffith & Borg-Breen LLP, further provides that, “Our approach works. From the outset, our founding partners committed to these progressive and inclusive principles, which have produced our diverse, talented leadership; however, gender parity for its own sake has never been the primary motivation. Rather, our leadership adopted this approach because it results in a positive, collegial culture, highly satisfied clients, and a track record of courtroom success, including back-to-back trial wins against much larger firms”. Simic’s firm has set a clear benchmark for other firms in eliminating gender disparities. Therefore, it would be pleasurable to see law firms viewing her firm as an epitome by following suit and joining the approach.

The presence of women is vital to any country’s judiciary. It goes way beyond adhering to laws and has profound societal impact. The acknowledgement of women in the judiciary is not an act of benevolence. The demographics of a country should be reflected in its judiciary. If a judiciary is seen as a bastion of entrenched elitism, exclusivity and privilege, ignorant of changes in society and the needs of the disadvantaged, it will be distrusted. Furthermore, women judges contribute substantially to the quality of jurisprudence produced in the courts. If certain members of society are excluded from contributing to jurisprudence, then the quality of the case law will be lacking and thus compromised. Women judges deserve to be at the table because they have earned the right to be at the table; they have the necessary skills, credentials and experience in the same manner as their male counterparts.

One could take this a step further and state that the presence of black women judges is vital given our racist and patriarchal past wherein women, especially black women, found it extremely difficult to secure a seat on the bench of any court in our country.

Transformation is not only essential to achieving the country’s goals but is paramount in ensuring that most of the people who rightfully had a distrust of the largely white male judiciary begin to build trust in the judicial system. In countries such as Kenya, it has become evident that as a court’s makeup becomes more diverse, conventional practices become less established and the jurisprudence improves. Outdated anti- women laws, particularly with respect to marital property regimes and inheritance, have improved with gender parity and equality. Indeed, the inclusion of women judges in the South African judiciary has already had a profound impact on our jurisprudence.

Justice Yvonne Mokgoro was South Africa’s first black woman justice of the Constitutional Court. In Khosa and Others v Minister of Social Development, Mokgoro penned the majority judgment which stated that the Constitution vests the right to social security in everyone and thus gave permanent residents the ability to apply for and receive grants in terms of the Social Assistance Act. Later, in Volks v Robinson, she and the only other woman on the bench, Justice Kate O’Regan, wrote a dissenting judgment regarding a maintenance claim in terms of the Maintenance of Surviving Spouses Act, which Mrs. Robinson was excluded from due to her marital status. They emphasised that the Constitution prohibits unfair discrimination on the grounds of marital status.

There is an outcry for the existence of women in the legal space, not only domestically but internationally. Justice Vanessa Ruiz of the United States Appeal Court in the District of Columbia, in an address to the United Nations, maintained that people will find it difficult to accept the judiciary’s legitimacy as the guarantor of law and human rights if the court itself acts in a discriminatory manner by enforcing existing patriarchal practices. Our goal should be to attain equal representation for women judges at all levels of the judiciary, not just because it is the right thing to do, but also because it is apt for a more just rule of law. Women judges help to improve the judiciary and the public’s confidence in their presence alone sends a powerful signal that the judiciary is open and accessible to those who seek recourse to justice.

It would be unfair to not commemorate the formation of WOZA awards. South Africa and the African continent are new to the stand-alone for women only awards event. Although there are countries that recognise leaders in law. But there are very few countries in the world that award women’s achievements in law. Only. And specifically. The WOZA awards was founded in 2018 to honour and celebrate women lawyers for their outstanding dedication, achievements, and contributions to the legal profession, whether it be services, legal education, human rights, or the Pro Bono sector. This is truly a step in the right direction – Women genuinely supporting other women. Men supporting women too.

At this stage, it should be clear that a lack of female judges may subconsciously communicate that women are unfit to hold high leadership positions in society, such as in the judiciary – an absolute contrary to the evidence and clear positive work ethic that has been shown by women thus far. If the South African judiciary wishes to gain trust from the public, it has to be an accurate representation of the country’s demographics. As we celebrate the centenary of the admission of women into the profession, it has taken a long time to get where we are, and we are still not anywhere near where we should be, having women leading in sufficient numbers in all branches of the profession. Therefore, committing ourselves to true equality in this and in all other respects relating to the profession is of utmost importance. In essence, the struggle continues.

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