By Ira Garbers – Stellenbosch University
“Women belong in all places where decisions are being made. It shouldn’t be that women are the exception. As women achieve power, the barriers will fall. As society sees what women can do, as women see what women can do, there will be more women out there doing things, and we’ll all be better off for it.” – Ruth Bader Ginsburg
South Africa is known for its exclusionary history. The Apartheid struggle and the fact South Africa has the fourth-highest death rate from female interpersonal violence, with a femicide rate five times higher than the world average, illustrates this. Women have always shouldered the disproportionate burden of discrimination and violence. Yet, during this time, we embodied strength and resilience in the face of adversity. As women progressed, the country progressed along with us.
Women have faced numerous struggles in the workforce. Historically, we were precluded from certain types of work and even now, we are predominantly found in certain occupations like clerical work, nursing, and teaching. Women who are not promoted due to their gender must rely on the Employment Equity Act (EEA) which prohibits discrimination. However, proving discrimination can be challenging. In trade unions, women’s representation is lower due to structural reasons such as more women being unemployed, occupying junior positions, and having primary responsibility for family care. Stereotypical perceptions of women as secondary earners also hinder their progress to leadership positions in unions. This stereotypical perception of women has gatekept so many opportunities from women, including the opportunity to be admitted as an attorney.
In the early 20th century, women faced significant legal barriers in pursuing a career in law. The case of Sonya Schlesin (Schlesin v Incorporated Law Society 1909) saw her denied admission as an attorney based on the argument that the term ‘attorney’ had always exclusively referred to men.
Similarly, Madeline Wookey was initially successful in her bid to register her articles of clerkship (Wookey v Incorporated Law Society 1912), but this decision was overturned on appeal (Incorporated Law Society v Wookey 1912 AD). The appellate court ruled that the term ‘person’ in the Cape Charter of Justice of 1883 referred only to male
persons, thus excluding women from the legal profession. The case revolves around Madeline Una Wookey, who sought to qualify as a practitioner by indenturing herself as a clerk to an attorney. However, her articles were refused registration by the Law Society due to her being a woman. The case highlights the struggle of women seeking admission to the legal profession, as the law of the time did not clearly allow for their inclusion. Despite the term “persons” in the law potentially including women, the historical practice of admitting only men to the profession was upheld. Judges and legal experts indicated that women were unsuited to the legal profession because of their jobs as mothers and carers. This served to demonstrate the discriminatory attitudes of the period. The case underscores the need for explicit legislative changes to ensure gender equality in the legal profession.
The Woman Legal Practitioners Act 7 of 1923 was enacted a century ago this year.
The decisions made in the cases Incorporates Law Society v Wookey and Schlesin v Incorporates Law Society, which barred two female applicants from entering the legal profession on the grounds of gender and patriarchal beliefs that women lacked the qualifications to practise law, served as the impetus for the passage of this act. Prior to this case, the definition of ‘persons’ only included male persons. It was difficult to infer from the use of the word “persons” a purpose to achieve such a significant change, given that the common law at the time the statute was passed did not allowed the enrolment of a woman as an attorney, and that by the word “persons” only male persons were meant. This is where the gender roles assigned to all females kept them from one of the greatest opportunities. The ratio in the case illustrates the boni mores of the time, and to say that it is shocking is an understatement. The court discussed how a married woman cannot represent herself, so how will she be able to represent another? That was a result of women’s unusual legal situation. She won’t be able to practise if she is admitted and decided to marry later. This meant that when a woman marries, she essentially became the property of her husband. In essence this meant that she was declared completely void of her ability to be seen as a person on her own, instead she was a mere possession. This, coupled with the societal pressure to marry, didn’t leave women with any viable options.
This viewpoint first plagued the whole female gender, until the Apartheid struggle appeared, where non-white females were still not considered to form part of the definition of being a ‘person’.
The Woman Legal Practitioners Act was just one section long, and it stated that “Women shall have the right to be admitted to practise and to be enrolled as advocates, solicitors, notaries public, or conveyancers in any province of the Union, subject to the same terms and conditions as apply to men…”
African women were however still excluded from being allowed to be admitted. That one sentence changed the entire course of women’s history in South Africa. The effect of one sentence or belief is still evident all over the world, if implemented with the sole purpose to oppress. One tradition, viewpoint or even sentence has the potential to oppress half the world.
An applicable example is the American case Dobbs v. Jackson Women’s Health Organisation, in which the Supreme Court overturned Roe v Wade in June 2022 on the grounds that the substantive right to abortion was not deeply ingrained in the Country’s national history or custom. This stance has a much more terrifying effect on women, because the USA has a very discriminatory history, which could be argued to form part of the custom of the country. If taken further in the future, slavery could also be justified, because the practise did form part of the country’s history.
South Africa’s first female attorney was appointed in 1923, namely Irene Antoinette Geffen, the Transvaal granted her admission to the bar. The first female judge would not be appointed until many years later. Desiree Finca was the first African women to be admitted as a lawyer in South African history.
The first female judge to be appointed permanently to the appellate division of the South African Supreme Court in Bloemfontein was Leonora van den Heever, a former judge of the High Court of South Africa, in 1991. The first Black female judge in South Africa was Tvonne Mokogor. These women paved the way for the 42% female representation rate of attorneys we have today.
These women were merely the forerunners of what is now a country that boasts a large number of highly competent women in the legal profession, not only in high
positions but also in those crucial jobs of court clerks, legal secretaries, and even the women who uphold the law on the ground, the female members of the S.A.P, to name just a few.
However, despite this law, progress has been slow and women are still underrepresented in the legal profession due to the setback of being withheld from partaking in the practice of law. Women still face an unfair amount of discrimination, no matter how subtle or obvious. From being expected to attend to the greater portion to domestic work in households, to facing sexism and harassment in the workplace. This is not a time to dwell on how much work and progress is still needed for women to truly be seen as equal, but to rather focus on the courageous acts of those women who stood up for all South African women.
Women have been subject to the views of men since the dawn of time, they have dictated whether we are to be consider a person, and by assumption, a human. Yet, despite having so much against us, we have persevered in the face of adversity.
“In the end, life is about how elegantly you suffer” – anonymous.
There is a reason why women are seen as the pinnacle of elegance.