By Mavhungu Dakalo – Wits University
The earliest case relating to the admission of women in the legal profession in South Africa is the Schelein v incorporated case. This case was about an application by Sonya Schlein to compel the Law Society to register her articles. The issue before the court was whether a woman could be admitted as an attorney, and this was decided based on section 11 of the Administration of Justice Proclamation. The court in interpreting this act stated that the intention of section 11, by the inclusion of the word attorney, was meant to apply to men exclusively in concurrence with the universal practice of only men being allowed to be attorneys. Bristowe J indicated that those who are to be admitted as attorneys are those who have always been admitted as attorneys according to previous practices, which are men. The court rejected the argument that women should be admitted as attorneys as much as they are allowed to be sworn translators. The basis of the court rejecting this argument was that there was no previous long practice to refer to in relation to sworn translators and thus, the court can admit any person it deems fit including, and not restricted to females as opposed to the position of being an attorney which had a long universal practice that must be followed by the courts. Furthermore, the court held that if the universal practice was to be departed from and changed, subsequently allowing women to be admitted as attorneys, it should be done by the legislature as it is not in the power of the courts to make such a change. The legislature had to show the intention that the long practice could be departed from and then the courts would have powers to admit women under section 11 of the administration of justice proclamation. Overall, the court in reaching its conclusion, heavily relied on the long universal practice of women not being admitted as attorneys not only in South Africa, but in England and Holand as well. The order granted was that Mrs Schlein could not be admitted as an attorney.
Similar to the Schlein case, the Incorporated law society v wookey case concerned Miss Wookey who applied to the Provincial Division for an order to compel the Law Society to accept and register her articles of clerkship. The issue before the court was whether a woman could be admitted as an attorney. In disagreement with the court aquo, the court held that under the Roman Dutch law, women were not allowed to practise as attorneys. On this contention, the court relied heavily on voet, who stated that the courts have had an explicit practise which demonstrates that although women can institute legal proceedings, they could never be admitted as attorneys. Voet’s reason was based on that the office of an attorney is a public one, and on the same contention, Huber also stated that women “are excluded from the office of attorney, as they are from all public offices,”. Dissenting from the court aquo judgment, the court held that the Roman Dutch position of not admitting women as attorneys was not merely just a rule of practise. It had its origin much deeper in the general position which the female sex occupied under the legal system of the Roman Dutch.
The court further looked at section 20 of the Charter of Justice which stated that ‘And we do further authorise our said Supreme Court to approve, admit, and enrol as such attorneys, solicitors, or proctors as aforesaid, such and so many persons as may be instructed within our said Colony in the practice and knowledge of the law, by any barrister, advocate, attorney, solicitor, or proctor duly admitted to practice in the said Court, and which persons shall be so approved, admitted, and enrolled according to and in pursuance of any general rule or rules of Court, to be for that purpose made in manner hereinafter directed.’ The court was faced with an issue to determine whether the word ‘person’ in section 20 included women, which would result to women being admitted as attorneys. The court referred to the case of Hall v society of Law agents where the court had to judge on whether the word persons as outlined in an Act dealing with the qualifications of law agents was meant to include women. The full Scotch Court held that
the word refers to male persons only and it relied on the inveterate usage to assign the meaning. The court, in giving meaning to the word as referred to in section 20, relied on the fact that the statute was framed in England, where at that time and thereafter no woman had ever been enrolled as an attorney, and there was a system under which women were expressly not allowed to fill offices of attorneys. Should the Act have intended on including women, it would have not been ambiguous in doing so. The court also considered common law and agreed to the contention that the then common law did not permit the enrolment of a woman as an attorney and so ‘it would be impossible to infer from the general language of the Charter an intention to effect so important an alteration’. The court ultimately concluded that the word ‘person’ did not include females and thus, females were not allowed to be admitted as attorneys.
Solomon J in the minority judgement took the approach that in order to determine whether the word ‘person’ was meant to include women, the court ought to place itself ‘as far as possible in the position of those by whom the laws were made and try to discover their intention by reading the Acts in the light of the subject matter, the context, and the law and practice existing at the time’. Solomon J held that after putting himself in the shoes of those who made the laws, he holds that the legislature intended to only include men under the term persons and there was no intention of introducing any change into the wellestablished practice of the Courts, but rather the intention was ‘to deal with the qualifications which in future would be required of those men who applied for admission’. Solomon J in reaching his finding also relied on the fact that the previous sections of the Act, namely section 18 and 19, meant to exclude women in the meaning of person and so it wouldn’t make sense to give a different meaning of the same word in section 20 in such an ambiguous manner.
In the Hall v Incorporated law society, the court was faced with prayers to make an order directing the Incorporated Law Society and the Registrar of the Court to register Margaret Hall’s articles and for the registration to have a retrospective effect so that that the period from December 1920, should count as a portion of her service. The applicant had entered into articles of clerkship on the 23rd December 1920 and served until the passing of the Act 7 of 1923. The court in reaching its decision relied on the Hall v society of Law agents case and held that it did not have the power to make any order regarding the prayers requested. Although this does not directly and explicitly deny the registration of the articles, it does contribute as a step back in promoting women’s out most effective admission in the legal profession.