Is the Constitution the progressive answer to the future of women in SA?

May 17th, 2023

Delegates attending the South African Women Lawyers Association centenary celebration of women in legal practice.

The South African Women Lawyers Association (SAWLA) held a centenary celebration of women legal practitioners in practice under the theme ‘Celebrating the past to shape the future of women in law’. The conference, which included a host of exciting speakers, was held in Gauteng from 30 March to 1 April 2023 and comprised of a series of events, starting with a traditional themed dinner. One of the founders of SAWLA, and current South African Ambassador to Sweden, Brigitte Mabandla, delivered her speech via Zoom where she said that women continue to be discriminated against and their contributions undervalued. She added that women work more and have fewer choices about their bodies, livelihood, and futures than their male counterparts.

Ms Mabandla said women experience multiple forms of violence, be it at home, work or in public spaces. She pointed out that in the early ’90s only a handful of countries had laws to criminalise domestic violence. She added that 35% of women who have been in a relationship have experienced violence from an intimate partner over their lifetime. She pointed out that there is an urgent need to identify the root causes of gender equality. She said that as South Africa (SA) celebrates 100 years of women in practise, it should be remembered that there is a need to continue working to address discriminatory social norms and gender stereotyping to unlock progress in all arears for women and girls. She added that SA is still a country in transition. She said the recognition of rights in the South African Constitution has not reached the majority of South Africans, especially the poor.

Ms Mabandla added that somehow the Constitution is a progressive answer and holds the future for the women of this country. She pointed out that women in the legal profession should play leading roles in shaping the people of SA for a better future.

Judge President of the KwaZulu-Natal, Thoba Poyo-Dlwati, with member of the Legal Practice Council, Kathleen Dlepu and co-founder of the Women in Law Awards, Rehana Khan Parker.

Director-General of the Department of Justice and Constitutional Development, Doctor Mashabane, in his speech said the centenary celebration since the first woman practiced law is a worthy celebration and observation. He added that in most countries and organisations the biggest challenge faced is how to look forward as the past is celebrated. He said that those who are seniors should sit down and have a conversation on how they are going to pass the baton to the next generation. He pointed out that those who were there to witness the transition of Apartheid, can sometimes find it challenging as they must explain how things were in the past to the new generation, as the younger generation see it as a legend.

Mr Mashabane said that he has always held a view that any family that has a legal practitioner is a blessed family. He pointed out that the majority of the time when people want to take one for a ride and discover that the person is a legal practitioner they begin to backtrack. He said that law is not only a tool for social transformation or for advancement of development, but is a tool for many things, even for liberation. He said that there can be no debate for the intersectionality between law and the struggle for gender equality and the struggle for women empowerment.

Among the other issues Mr Mashabane raised, he touched on the Constitution of the country and some of the issues that the country faces, such as the land issues. He said the land issue is a problem for a majority of women in this country. He pointed out that in order to lift women out of the depths of poverty and the indignity of unemployment and backwardness, the country needs to deal with access to land. He asked members of SAWLA how they framed the debate around the land question. He said that the reality is that the majority of people who are poor, or have no access to good education, they can liberate themselves but can never challenge a way forward themselves.

Deputy President of SAWLA, Lily Malatsi-Teffo said that the purpose of the centenary celebration by SAWLA is for female legal practitioners to come together and discuss their presence in the legal profession. She thanked the sponsors who made the three-day celebration come to reality. She said one of the writers who wrote in the South African Law Journal in 1917 called the objection to women in the legal profession as a wholesome one because he said that ‘the fact that women nurse and sew and wait at canteens is no indication of their capacity for the legal profession. If there is one calling in the world for which women are conspicuously unfitted, it is the law. … Women have no idea of relevancy, analogy, or evidence.’

South African Women Lawyers Association (SAWLA), Deputy President, Lily Malatsi-Teffo, with the organisation’s President, Nomaswazi Shabangu-Mndawe and SAWLA’s fundraising committee chairperson, Nomahlubi Khwinana and SAWLA’s Gauteng chairperson, Matshego Ramagaga.

Ms Malatsi-Teffo pointed out that previously it was known that men had authority in society and women were seen as subordinates. Women’s role was primarily a domestic one and it included childbearing and taking care of the wellbeing of the family. She added that women were not expected to concern themselves with matters outside home as that was the domain of men. She said before 1923 women were not allowed to practice law, that they were not a person in the eyes of law. She pointed that judges would go to the extent of refusing their application to be admitted to as attorneys, because they would say that they did not fall under the category of persons.

Ms Malatsi-Teffo referred to the case of Wookey v Incorporated Law Society 1912 CPD 263, which involved articles of clerkship by a woman. She pointed out that things changed in 1923, when the Women Legal Practitioners Act 7 of 1923 was passed on 26 March 1923. The Act allowed women to be admitted as attorneys, as notaries and conveyancers. She pointed out that it was after the passing of law that women were afforded the first opportunity to be admitted as attorneys and advocates. She said that history was made when the first female, Irene Geffen, was admitted to practice as an attorney in 1923 and the first black female, Desiree Finca, was admitted to practice as an attorney in 1967.

Ms Malatsi-Teffo said that it was because of the milestone on how women got to practice as legal practitioners that SAWLA is celebrating. However, she pointed out that it is not that challenges are over, instead there are still pieces of legislation that are making it hard for the progressing of women and continue to favour male counterparts. She highlighted under this milestone in the legal fraternity was the first Legal Practice Council, elected in 2018, which now included ten female legal practitioners. She also acknowledged that the current Chief State Law Adviser Susan Masapu is the first female to be in that position. She also acknowledged the Deputy Chief Justice Mandisa Maya, who is the first female Deputy Chief Justice in South African history, as well as the first Judge President of the KwaZulu-Natal Division of the High Court, Thoba Poyo-Dlwati, who is the first female to ever hold that position in that province. Judge President Poyo-Dlwati is also the first youngest female judge president.

Ms Malatsi-Teffo added that SAWLA is proud of the progress that the South African legal fraternity has made in women representation over the last few decades. She said this is a milestone to be celebrated.

Eastern Cape Division of the High Court, Judge Buyiswa Majiki speaking at the centenary celebration of women in legal practice.

Eastern Cape Local Division of the High Court Judge Buyiswa Majiki said that when SAWLA was launched the former Chief Justice Pius Langa said that one of the most important things for SAWLA to know why it exists is to remain relevant. She added that if you talk to people about abstract issues, they cannot relate to but if you tackle things that bother them, then they will understand the organisation’s cause, they will want to identify and see change in their lives. However, she added that the challenges that SAWLA experienced in the past, they still exist in the present, such as briefing patterns and other challenges female legal practitioners face. She pointed out that Ms Mabandla taught members of SAWLA that as a united voice they cannot be ignored. Judge Majiki said SAWLA must maintain the sentiment as to make sure it remains united as an organisation.

Retired Constitutional Court Judge, Justice Yvonne Mokgoro, said that female legal practitioners operate in an environment, which is just a window to the society which they live. She pointed out that women have come a long way and strides were made, however, there is still a lot of work that needs to be done. She said that it should be accepted that in the hard work that still needs to be done, it needs energy that women had to kick open doors and smash glass ceilings to create opportunities.

Justice Mokgoro said as women walk the journey, they need to kick open and smash glass ceilings, the lessons that she has learned is that there are times when women need extra strength and energy to kick open locked doors. She told them that if female legal practitioners need to be impactful, they need to have a bag filled with legal skills, both hard skills and soft skills. She added that the heavier the bag the better because sometimes one needs that bag to smash locked doors and claim a spot because you have the right to be in that spot.

Justice Mokgoro said that it takes hard work, time, and the right attitude for women to make it. She pointed out that one must have something that they can offer, that would make a positive difference in the lives of the people they serve.

While sharing some moments of her journey in the legal profession, Justice Mokgoro pointed out that it was after seeing how white people lived on the other side of town, she wanted answers from her parents, who explained to her at the time how things were. She said her consciousness started after she had the ‘talk’ about the state of things at that time in SA. She added that she felt that things were wrong, and they needed to be corrected. She pointed out that when she had an opportunity, she then became a social justice activist.

Retired Judge of the Constitutional Court, Justice Yvonne Mokgoro speaking at the South African Women Lawyers Association centenary celebration of women in the legal profession, held in Johannesburg.

Justice Mokgoro said that things needed to be corrected and they could only be corrected by activists. She pointed out that black consciousness, social justice, and social injustice played a big role in shaping her attitude and the value of education was not only to survive the ravages of Apartheid but also to work towards justice in South Africa. She said that it took hard work, because one had to juggle books and being an activist.

Justice Mokgoro told attendees that it takes hard work for women to get where they want to be. That one should forget connections, but rather think about ways of using the skills in the bag to smash glass ceilings and once they are in, they must smash more ceilings to move up higher.

Member of the Executive Council for Community Safety in Gauteng, Faith Mazibuko, during her presentation at the last dinner of the celebration said that her department was missing a link of a partnership with an organisation such as SAWLA. She said most of the work that they do focuses on gender-based violence, and most of the time they are dealing with the most vulnerable women and that is when her department needs organisations such as SAWLA the most, because some cases that they come across they do not know what to do or how to handle them, as they have no knowledge of what is happening in the legal fraternity.

Ms Mazibuko said that it is a known fact that women like beautiful things, and some end up depending on men for luxury lifestyles. However, she pointed out that sometimes after the relationship goes south most of the women find themselves in the streets, being abused and their rights abused. She pointed out that in most cases they handle, these are the cases they encounter, and when some of the victims especially those who are married, want to divorce it is difficult to get assistance, because some legal practitioners cannot even offer pro bono services. Ms Mazibuko said that most women end up in very toxic relationships, and some due to their religion, tradition and cultures, teachings, and practices they remain in dead marriages.

Ms Mazibuko said that in the new dispensation it refers to equal gender representation, as there must be also 50% representation of women in organisations and structures. She pointed out that men cannot handle that. She added that men feel entitled to women’s bodies without even asking and see women as entertainment toys that they can abuse. She said that gender-based violence is a social antagonism between men and women to dominate one over the other. She added that there are women who equally abuse their spouses.

Ms Mazibuko said she hopes that the partnership they have with organisations such as SAWLA will help with self-introspection. She pointed out that with some of the legislations, sometimes the government does not get it right. She said that the legal profession must be involved in coming up with legislation that will assist on matters of gender-based violence. She added that organisations such as the National Prosecution Authority and some judges fail the victims and communities as they are the ones who give perpetrators bail and release them into the world again.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.