By Lebogang Mchunu – Wits University
1. Introduction
Magdelin Wookey, Constance Mary Hall, Gladys Steyn, Leonora van den Heever, Navanethem Pillay, Desiree Finca, Yvonne Mokgoro, Kate O’Reagan, Lucy Mailula, Mandisa Maya and Shamila Batohi these are some of the names of women who paved the way to what we know today as an inclusive legal workspace.1 The period 1910-1920 marked the institutionalization of racial order and in addition to that this period also saw the entry of women into the legal profession implied by stereotypes in the judiciary2.
2. Racism and Sexism as a hurdle into the profession for women
A number of factors played a role in the crooked representation of women attorneys and advocates in the legal fraternity which were based off the pre-existing networks which were white made predominant, clients and colleagues who undermined the intelligence and contribution and talent of women as practitioners, an unequal sharing of working and maternity leave which hindered women from achieving the target of billable hours, a system of referral which was directed at the favor of men and the overall gender stereotypes resounds throughout the legal profession3. The act of taking up space dates back to 1921 in the case of Law Society v Wookey where a firm of attorneys was willing to enroll Madeline Wookey as an articled clerk. Wookey was met with opposition from the Cape law society which refused to register her articles because the term ‘person’ was not inclusive of women.
Frances Lyndall Schreiner studies at Cambridge and graduated with a law degree. When she returned to South Africa, she met all the requirements of becoming a barrister however, because of restrictions which were only lifted in 1923, she was unable to practice4. On the other hand, Leonora van den Heever raised eyebrows in the year 1968 when she became the first women to apply for silk which was a superior status formerly known as “queens Counsel” in South Africa5. Her appointment to the Free State bench caused greater commotion in acting capacity for over five weeks. In that same year she was the first appointed female judge appointed in South Africa. At the conclusion of 1979 she accepted to transfer to the Cape Division of the Supreme Court in Cape Town6.
In 1914, the South African legal journal published an article, authored by Reginald Davis who was later appointed as Judge of the Supreme Court in the Cape, in this article he made reference to an obiter dictum made in an American Court which found that women were temporarily unsuitable for the legal profession. An earlier ruling in Schreiner v Law Society decided against the admission of women top practice as solicitors on the basis that ‘long practice of not admitting women to be solicitors. While judges were willing at the time to admit black lawyers however this willingness did not extend to include women. When the Women Legal Practitioners Act 7 of 1923 7was passed, Section 1 of the statute provided that women shall be entitled to be admitted to practice and to be enrolled as advocates, attorneys, notaries, public or conveyancers subject to the same terms and conditions that apply to men. Three years later Constance Mary Hall became the first black women to be admitted as an attorney in South Africa in 1926. Gladys Steyn became the first female advocate to be admitted to the Bar. The position of black women however remained unchanged.
4. The dawn on inclusivity of black legal practitioners
As aforementioned, even when women were slowly being admitted into the profession, black women were still excluded. This came to an end when Desiree Finca was one of the black female lawyers appointed in South Africa in 1967 after Zainunnisa Gool in 1963. didn’t remain that way when in 1967 Navanethem Pillay became the first Black women to open her own law practice in Natal. She contributed to the inclusion of the equality clause in the Constitution of that country that prohibits discrimination on the grounds of race, gender, religion, and sexual orientation. She was a co-founder of the women’s rights organization ‘Equality Now’8. Thereafter, Yvonne Mokgoro was the first appointed justice of the Constitutional Court of South Africa in 1987 alongside Kate O’Reagan in 1994. Mokgoro is also the first black female judge in South Africa. Mandisa Maya, the first female appointed as President of the Supreme Court of Appeal of South Afrirca 2017 and Deputy Chief Justice of South Africa9.
5. The first female Director of the National Prosecuting Authority
Lastly among many other female power houses but definitely not the least important, Shamila Batohi was the first female Director of the National Prosecuting Authority of South Africa in 2018.10 Shamila served as aa junior prosecutor in 1986, she went up the ladder when she served as the first regional head of the directorate of special operations based in KwaZulu Natal. She was appointed by the former Nelson Mandela to be a part of a disciplinary team that looked into the hit squad activities within the police service in apartheid11.
6. The fraternity as we know it today
As of January 2019, there have been 27 233 reported attorneys of which 12 084 were black representing 44 percent of attorneys in practice, 11 055 being black women which adds up to 39 percent of attorneys. South Africa has not caught up with other countries
when it comes to effective frameworks supporting equality in the legal profession12. The structure of the legal profession and the number of women represented in the legal profession is not a true representation of the diversity of South Africa’s Society13.
7. Conclusion
Institutions must reevaluate how they define leadership and identify and develop talent. The legal profession must address progression criteria based on ‘lack of fit criteria’ that use the masculine norm as the bar for determining appropriateness. When assessing policy measures to achieve gender equality, the legal profession must establish venues for female experiences to be shared and concretized in a way that informs policymaking processes.14 There are different frameworks including the regional, domestic and international law framework which implies which measures could be used in order for equality to be achieved with reference to women in the workplace15. The Cape Bar maternity policy that recognizes the realities of working women with regard to pregnancy and childcare and aims to cater for these realities. In this essay I have provided the different issues facing feminists of how to affirm the feminine without reverting to stereotypes about women.16
8. Bibliography
- Incorporated Law Society v. Wookey, 1912 AD 623 ,Legal Information Institute. Available at: <https://www.law.cornell.edu/women-and- justice/resource/incorporated_law_society_v_wookey_1912_ad_623> (Accessed: 24 August 2023).
- M Lasseko-Phooko & S Mahomed ‘The challenges to gender equality in the legal profession in South Africa: A case for substantive equality as a means for achieving gender transformation’ (2021) 21 African Human Rights Law Journal 494-521. Available at: <https://www.ahrlj.up.ac.za/images/ahrlj/2021/volume_1/AHRLJ%201_2021%20Lasseko- Phooko.pdf >(Accessed: 25 August 2023).
- Nordstrom.com. Available at: <https://www.nordstrom.com/browse/women> (Accessed: 28 August 2023).
- NELSON MANDELA UNIVERSITY (no date) Leonora van den Heever 1998, Nelson Mandela University. Available at: <https://www.mandela.ac.za/Leadership-and- Governance/Honorary-Doctorates/Leonora-van-den-Heever-1998> (Accessed: 28 August 2023).
- Ngcukaitobi, T. (2018) Let the world know that women were once not ‘persons’ in the eyes of the law, The Mail & Guardian. Available at: <https://mg.co.za/article/2018-08-09-let-the- world-know-that-women-were-once-not-persons-in-the-eyes-of-the-law/> (Accessed: 25 August 2023).
- Olive schreiner letters online (no date) The Olive Schreiner letters online. Available at: https://www.oliveschreiner.org/vre?view=personae&entry=66 (Accessed: 27 August 2023).
- The practical realities of a woman practising at the bar. Available at: <https://journals.co.za/doi/pdf/10.10520/AJA10128743_884> (Accessed: 24 August 2023).
- Walubengo, P. (2022) Shamila Batohi is the new NPA boss, Briefly. Available at: <https://briefly.co.za/29200-shamila-batohi-biography-family-salary-qualifications-contact- details-latest-news.html> (Accessed: 28 August 2023).