100 Years of Women in Law

“YOU ARE NOT WORTHY MY LADY”

“Likewise, owing to the same natural peculiarity, it happens that, inasmuch as nearly the whole of womankind by reason of an inborn weakness is less suited for matters requiring knowledge and judgment than men, women are excluded from holding any office or dignity relating to the government of a people and its affairs”

The 10th of April 2023 marks 100 years since women were admitted into the legal profession. Since their admission, women have consistently shown that they are not only more than capable but a formidable force to be reckoned with. This article provides a snapshot of early trailblazers who went against the status quo and fought for their right to practice a profession they wanted, but were thought not suited to practice. 

The Roman Law Code 2.13.18 provided that “[T]o undertake the defence of another is the duty of a male, and is outside the function of the female sex. As a result, in early jurisprudence, women were prohibited from rendering any civil or public services which meant that they could neither appear before a court of law or Judge; nor exercise a magisterial office – as these duties were reserved exclusively for men.

The earliest reported judgment is the case of, Schlesin v Incorporated Law Society 1909 TS 363. Ms Sonya Schlesin (described in the judgement as a ‘young lady’) sought to register her articles of clerkship with Mr Mohandras ‘Mahatma’ Gandhi, with the Law Society. The Law Society refused to register the articles of clerkship in view of the long practice not to admit women to be solicitors.

The Transvaal Supreme Court in its judgment reasoned that Ms Schlesin was not a person “capable” of being an attorney, and thus not entitled to be admitted. The Court further held that admitting a woman would “mean an enormous difference in the practice of the courts in this country, and in any other country where such a change was made. Ms Schlesin’s application was dismissed with costs.

It seems that Ms Schlesin’s application was the beginning of a revolution as a few years later, in 1912, a Ms Madeline Wookey approached the Cape Provincial Division to compell the Law Society to register her contract of articles (Wookey v Incorporated Law Society 1912 CPD 263)

This application was to prove successful for Ms Wookey as the Court found that she was entitled to be articled as an attorney’s clerk and upon attaining the required qualifications, be enrolled as an attorney.

The Court, somewhat boldly, held that because there was no positive law in South Africa prohibiting the admission of women, there was no reason Ms Wookey’s contract of articles could not be registered, and in time, Ms Wookey could be admitted as an attorney.

The Appellate Division did not agree and in Incorporated Law Society v Wookey 1912 AD 623, overturned the High Court decision. The Appellate Division noted that, the decision of the High Court would materially “widen the area of women’s economic activities, though that be done by opening to a host of new competitors the doors of an already congested profession”.

The appeal turned on the question whether a “person”, in the relevant statute on admission, was wide enough to include women or should be interpreted narrowly. Referring to the practice in the Roman-Dutch courts, the Appellate Division noted that “boys under 17 years of age were excluded from the profession of attorneys or advocates, as also women, the deaf, and the blind” as were “pagans, Jews, and pronounced heretics”. The Appellate Division however was of the view that the prohibitions based on religion, race and other characteristics were “notoriously obsolete”.

The Appellate Division concluded that, the Legislature’s intention could not have been to overturn the centuries of practice in excluding women that had been established since Carfinia ‘vexed’ the Roman Dutch authorities. Thus, the word “person” in the relevant statute had to be read to conform with that practice and women were to continue to be excluded.

In the years that followed, some truly repugnant articles were published by the legal ‘luminaries’ of the age, including the then Chief Justice De Villiers CJ, lauding the exclusion of women as being in the interests of society at large and for the benefit of ‘Motherhood’.

On 26 March 1923, the Legislature, passed the Women Legal Practitioners Act 7 of 1923. The Act proclaimed that ‘women shall be entitled to be admitted to practise and to be enrolled as advocates, attorneys, notaries, public or conveyancers … subject to the same terms and conditions as apply to men.’

On the 10th of April 1923, the Act was promulgated by publication in what was titled a “Government Gazette Extraordinary” (Vol. LII: 10 April 1923: No. 13).

Members at the ceremonial sittings at the Gauteng High Court in Johannesburg. Photo credit: Alfonso Nqunjana/News24

Since its promulgation great strides were made. In 1923, Ms Irene Geffen became the first female lawyer in South Africa and was admitted to the Transvaal bar. Three years later, Ms Constance Mary Hall became the first woman to be admitted as an attorney in South Africa. In 1969, Judge Leonora van den Heever became the first woman judge in South Africa and in 1991, became the first female judge to be permanently appointed to the then Appellate Division.

The position of black women, however, remained unchanged. While there was no statutory bar to their admission as attorneys or advocates, it was only in 1962, that Ms Zainunnisa Gool was admitted as an advocate at the Cape Bar. Three years later, in 1967, Ms Desiree Finca of Mthatha became the first African woman to be admitted as an attorney and Justice Yvonne Mokgoro became the first black female judge in South Africa.

Whilst there have been significant wins, a lot still needs to be done. The most recent judiciary annual report states that, about 44% of judges in the superior courts are women. In 2019, 40% of those practising as attorneys were women. Similarly, in 2019, of the 3 083 advocates with the General Council of the Bar only 28% were women and of the 537 silks countrywide, only 50 were women.

Ms Schlesin never achieved her dream of becoming an attorney. She enrolled in 1953 to study law but she did not complete the curriculum and died in 1956. We do not know what became of Ms Wookey.

There are still numerous barriers to women entering and advancing within the legal profession, however, it is worth celebrating the fact that women have been a part of the profession for a century.  We will continue to celebrate trailblazing women within the profession, for the benefit of those that fought for this right and were unjustifiably excluded, merely because of an “inborn weakness”. 

Authors:
Bridge Group of Advocates - Zinhle Ngwenya
Bridge Group of Advocates - Lerato Mukome
Bridge Group of Advocates - Craig Thomas

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