Gender transformation, is enough being done?

February 1st, 2015

By Nomfundo Manyathi-Jele

Towards the end of 2014 the Western Cape branch of the National Association of Democratic Lawyers (NADEL), in partnership with Foundation for Human rights, held a seminar at the Cape Law Society offices. The theme of the seminar was ‘Gender Transformation within the Legal Profession’.

The seminar aimed to facilitate discussion relating to the current status of racial and gender disparities in the legal profession as well as to stimulate debate that could help identify key issues and challenges currently being faced by individuals in the legal profession.

According to a report complied on the seminar, the event also looked at the nature of efforts required to promote the integration of women in the legal profession and the creation of an enabling environment for women to pursue a career in law.

Topics discussed included –

• access to justice and the legal profession for women;

• the impact of briefing patterns on black female advocates; and

• whether the profession can attain substantive equality and transformation through legislation and policy alone.

Speakers included the Deputy Minister of Justice, John Jeffery; advocate Roseline Nyman; the current Acting Director of the Legal Resources Centre, Charlene May; Acting Chief Litigation Officer in the Office of the State Attorney, Mohube Phahlane; and the President of the South African Women Lawyers, Noxolo Mabuda. The seminar was attended by, among others, High Court judges, magistrates and advocates.

Deputy Minister Jeffery began his speech by asking attendees who the first female lawyer was. He made reference to Arabella Mansfield who was admitted to the Bar in Iowa in the USA in 1869 who some believe to officially hold this title. Others, according to Mr Jeffery, believe the title should go to Italian advocate, Lidia Poët, who passed her exams and did her two years of practical training and met all the qualifications for admission, but could not be admitted to the legal profession due to the fact that she was female.

The report states that Ms Poët, in her attempts to have herself admitted to the profession, encountered a variety of obstacles. She approached the Turin courts in Italy a few times. Her case sparked public controversy and even reached parliament, but to no avail. She was eventually admitted to the Turin Bar in 1920 at the age of 64.

Mr Jeffery said that in our own country women have similarly faced an uphill battle to gain entry into the legal profession, adding that strangely not much is known about the pioneers of our own legal profession. ‘All of us, given that we are lawyers and given our country’s history, should know who Desiree Finca is, but sadly there is very little information available on her,’ he said.

Mr Jeffery cited the case of Madeline Wookey, which was adjudicated in 1912. The Appellate Division refused her application to be admitted as an attorney, holding that a woman was not a ‘person’ as required by the legislation. In Incorporated Law Society v Wookey 1912 AD 623, a full bench of the then Appellate Division relied on Roman Dutch law and its exclusion from legal practice of persons who could be termed ‘unfit and improper’ including, the deaf, the blind, pagans, Jews, persons who denounced the Christian Trinity, and women.

Quoting Judge Pius Langa, he explained how even when women were finally allowed in the legal field, their involvement never really extended beyond its periphery. ‘Langa writes that it was in 1967, 44 years after the admission of the first white female attorney that Desiree, who came from Umtata, was admitted as the first black female attorney in the country. Appearing before a magistrate in Vereeniging, [Ms] Finca struggled to be heard as the magistrate claimed he had never heard of a black female attorney. It was only after he confirmed her status with another attorney that the magistrate apologised and continued with the proceedings.’

Mr Jeffery noted the changes that have occurred within the legal profession since 1994, but questioned whether real transformation had occured and whether the legal profession has since transformed. According to the report, Mr Jeffery examined certain statistics relating to the status quo of the legal profession in South Africa. He said: ‘The latest figures show that of our country’s 243 judges only 79 are female. That is 32,5%. And although the racial diversity of the Constitutional Court in 20 years of democracy has gone from seven white judges and four black judges to the current Bench, where the majority of the judges are black and two are white, the same has not been achieved in terms of gender, as the number of women on the Constitutional Court has remained unchanged: Two in 1994 and two in 2014.’

Looking at our court system in particular, Mr Jeffery showed that change on the highest levels is still lacking in South Africa. Since June 2012, in respect of the Constitutional Court, there have been two interview processes. Nine candidates were interviewed, of whom eight were men and one was a woman. Out of these two processes, two men were appointed.

According to the report, Mr Jeffery said that at the Supreme Court of Appeal, there have been three interview processes since June 2012. Fifteen candidates were interviewed. Of these candidates, there were 13 men and two women. Six men and one woman were appointed out of these processes.

‘At High Court level, which includes the Labour Appeal Court, Labour Courts, Electoral Courts and Land Claims Courts, the numbers are slightly more encouraging. There have been four interview processes. During these processes, 61 candidates were interviewed, of whom 32 were men and 29 were women. These processes led to the appointment of 17 men and 14 women judges’, the report states.

The advocate’s profession, according to the Mr Jeffrey, is still a matter of concern when it comes to gender. The statistics of the General Council of the Bar show that only a quarter (645) of South Africa’s total 2 571 advocates at the Bar are female. Of these, only 4,5% (116) are African females. Of the silks, or senior counsel, only 27 are female, of which only four are African. That is less than 1% of our country’s 451 senior counsel. Mr Jeffrey said that this was a concern, particularly since many judges come from the ranks of the advocate’s profession.

According to NADEL, Mr Jeffery believes, however, that the picture is not overwhelmingly bleak, as it must be acknowledged that much progress has been made, particularly in the magistracy and also in respect of briefing patterns. The number of female magistrates has increased significantly from a total of 284 in 1998 to 667 currently. ‘This translates to an increase of 134%. There were only 62 African female magistrates in 1998, today there are 285. This translates to an increase of 359%. Of the 285, two are Regional Court Presidents and nearly 50 are Regional Magistrates. For the first time in the history of the magistracy we now have more women than men at the level of Chief Magistrate, of the 18 Chief Magistrates, ten are female,’ the report said.

Mr Jeffery concluded by urging lawyers to have the courage to continuously recommit themselves to the Constitutional imperative of transformation, in the legal profession and society at large as ‘there is still much to be done.’

The seminar report states that speaking on the topic ‘remaining ignored and unseen – the impact of briefing patterns on black female advocates’, advocate Nyman spoke about her own experiences as a member of the Cape Bar which, in her view, could be generalised to many other black female advocates.

She highlighted that in her practice, she receives the majority of her briefs from the Office of the State Attorney and the rest from black firms and non-governmental organisations adding that she had not received many briefs from white firms.

Ms Nyman explained how today black women slip through the cracks in terms of affirmative action. She said that black men are selected to fulfil the requirement of ‘black people’ and ‘white’ women are selected to fulfil the requirement of ‘females’. She added that this means that black women are once again at the bottom of the ladder. She made reference to two black advocates who were senior to her and who, in her opinion, were very competent female advocates who left the Cape Bar last year as they did not get enough briefs to sustain their practices.

Ms Nyman said that, as an acting judge for two years, she hardly saw black female advocates in motion court, in trials or in opposed or urgent applications. She said that they usually appeared before her occasionally when they represented the state, or in criminal trials as prosecutors.

Ms Nyman stated that the Legal Practice Act 28 of 2014 has a few provisions relating to the empowerment of black women in the legal profession and that she welcomed the Act. She said that the role of the State Attorney’s Office and government departments in briefing black female advocates is also welcomed. She ended off by expressing her gratitude to these organs of state for their current briefing patterns and the attempts they make to empower black women in the legal profession.

According to the report, Ms May said that internationally, South Africa has become known for its relatively good performance when measuring gender equality. She then highlighted contradicting realities in the country today.

She said: ‘One in ten girls will miss four days of school on average per month because of her period; female employees tend to earn only 77% of what their male counterparts earn, women’s unpaid work is not calculated and has no economic value – women spend more than twice as many minutes on unpaid care work than men; young girls in rural areas are still being abducted, raped and then forced into marriage; in rural parts of KwaZulu-Natal women still take their cases to traditional courts where they will not be heard unless they are represented by men; and gender reassignment surgery through a public hospital in this country currently has a 26 year waiting list.’

Ms May questioned why the dialogue on gender equality and transformation is still relegated to special occasions and commemorative dates such as during August and 16 Days of Activism.

Speaking on overcoming challenges faced by women in the legal profession, Ms Mabuda said that while the progress is noted, there is still more to be done to ensure gender transformation of the judiciary. According to the report, she stated that while there has been a legislative review, processes undertaken over the years to address the legacy of discrimination against women, there have been challenges experienced in the implementation of those legislations.

Ms Mabuda said that the report by the Centre for Applied Legal Studies and the Foundation for Human Rights on the transformation of the legal profession exposed that a number of black female lawyers are being used for ‘window dressing to lure clients and [to] act as tea ladies in meetings.’

Ms Mabuda, however, believes that if one only focuses on the challenges and does not look into finding ways of addressing them, the profession will remain male dominated.

She believes that in addressing the challenges faced by women in the legal profession, black women needed to find ways into and to stay in the legal profession. According to the report, Ms Mabuda said that the high percentage of female candidate attorneys entering the profession is a beacon of hope for the change of the patriarchy of the profession. She added that female lawyers should give support to each other and not exert their energy into negatively competing against each other.

Ms Mabuda challenged all female lawyers to not allow the profession to change them but that they should rather change the profession. She said that women in the field need to create a level of flexibility and support that allows them to balance the demands of their day-to-day lives with the demands of the legal profession. The lifestyles should embrace their cultural, social and economic demands while still acknowledging the nature of the profession.

Ms Mabuda said that in order to propel women, to enter into, and stay in the legal profession, they need to be performance driven, adding that they can acquire this expertise through taking on challenging cases.

Learning from her past experiences in the profession, Ms Mabuda found that women lawyers need to have good mentors and more experienced ones should offer mentoring services through programmes. ‘Choosing a mentor should, however, not always be gender based as women do have their converted male counterparts that are willing to be part of the mentoring equation,’ she said.

Speaking on the Legal Practice Act, which was assented on the 20 September 2014. Ms Mabuda said that female lawyers, through their organisations and stakeholders, that form part of the council, should ensure that there is a 50/50 gender representation on the National Council.

Ms Phahlane spoke on the allocation of briefs and how the profession can support the transformation agenda of the Justice Department in promoting gender inclusivity and transformation within the legal profession.

She said that for the period under review, her office issued 4 115 briefs to counsel as opposed to 3 206 in the 2012/13 financial year. The number of briefs increased by 909 from the previous financial year figures. Ms Phahlane added that out of the 4 115 briefs issued to counsel in the 2013/14 period, 3 641 (88,48%) was allocated to previously disadvantaged individuals. A total of 1 378 of the total briefs issued in 2013/14, which translates to 33,48% was allocated to female counsel.

Ms Phahlane added: ‘The money paid to counsel in the 2013/14 financial year amounts to R 641 874 613. The payment made in 2013/14 decreased by R 42 717 140 from R 684 591 753 in the 2012/13 financial year. The target for 2013/14 was to pay a minimum of 75% of the total payments to previously disadvantaged counsel. An amount of R 482 386 444 was paid to previously disadvantaged individuals, which translates to 75,15%. The target was exceeded by 0,15%.

According to the report, in the 2013/14 financial year an amount of R 113 974 012 was paid to female counsel, which is 17,6% of the total payments.

The total number of enrolled and finalised cases for the 2013/14 financial year was 1 236. Of this number, 794 cases were won and 442 lost. The target set for 2013/14 was 50% and 61% was achieved.

The Director of the Foundation for Human Rights in South Africa, Yasmin Sooka discussed the findings and recommendations of the research report on transformation in the legal profession by the Centre for Applied Legal Studies and the Foundation for Human Rights. (See 2014 (Nov DR 18)). She encouraged participants to read the report and added that the findings revealed that women still face exactly the same issues more than 20 years later, adding that although women have taken up different positions, the face of gender discrimination has not changed.

According to the seminar report, a panel discussion chaired by NADEL Western Cape secretary, Seeham Samaai took place after the speeches. The audience was able to pose questions for comment by the panel. The following challenges were raised:

• The huge number of female LLB students graduating from university, which does not reflect in the profession.

• Treatment of black women lawyers (and males) within private practice.

• The introduction rule of the Bar prohibits the young advocates to meet with the State Attorney Office, government structures etcetera. How the Justice Department can play a much more proactive role via the State Attorney Office to ensure that black advocates and especially black female advocates are instructed by the State Attorney Office not only to improve the stats but also to ensure qualitative impact and outcome on the recipient of the brief.

• FHR to extend its research to all legal professionals within the state and private practice.

• Women networking opportunities and the role of the Justice Department in playing an active role in the promotion of gender equality in the legal profession.

• Promotion of internships at institutions such as the Bar, law societies, the South African Women Lawyers, which are similar to the Justice Department Law Clinic candidate attorneys programme.

Nomfundo Manyathi-Jele NDip Journ (DUT) BTech Journ (TUT) is the news editor at De Rebus.

This article was first published in De Rebus in 2015 (Jan/Feb) DR 16.