The slow rise of women in the legal profession

September 1st, 2020

Picture source: Gallo Images/Getty

By Patrick Bracher

When I read that the United Kingdom (UK) is celebrating a centenary of women being able to enter the legal profession in 2020 it got me thinking about our own lamentable beginnings and where we are now.

The first woman to appear in the law reports seeking to be admitted as an attorney was Sonya Schlesin (Schlesin v Incorporated Law Society 1909 TS 363) who had been articled to Mr Gandhi. Based on some convoluted reasoning, the Transvaal Supreme Court held that because the word ‘attorney’ had always referred to people ‘of that class who have always been capable of being attorneys’, namely men, Bristowe J went on to say that admitting women as attorneys could also lead to them being admitted as advocates ‘a change which would mean an enormous difference in the practice of the courts in this country’ and he clearly did not mean a positive change. Ms Schlesin was turned away and had to pay the law society’s costs of the application. Presumably hoping for more liberal justice in the Cape Supreme Court, Madeline Wookey, sought to compel the Incorporated Law Society to register her articles of clerkship with an attorney and notary practising in Vryburg (Wookey v Incorporated Law Society 1912 CPD 263). She was right. Maasdorp JP found that because there was no positive law in existence disqualifying women from being enrolled as attorneys, her application succeeded. Maasdorp JP came to the conclusion that women were equally entitled with men to be enrolled as attorneys on giving proof of the necessary qualifications. The laws, he held, made enrolment compulsory except for good cause shown. As no good cause had been shown why women should not be entitled to sign articles and to become attorneys once they attained the required qualifications, the application was granted.

But Madeline Wookey failed on appeal in front of three judges of the Appellate Division (Incorporated Law Society v Wookey 1912 AD 623) whose remarks in the judgment are still quoted in Constitutional Court judgments today as examples of prejudice. Judge Innes who was the Acting Chief Justice spent pages examining Roman, Roman-Dutch, foreign and South African law only to come to the conclusion that where the law referred to ‘persons’ being admitted as attorneys it referred only to male persons. At the same time as expressing ‘real regret’, he found that the ‘question is not whether this lady is likely, adequately, and satisfactorily to discharge the duties of a legal practitioner’. The position was ‘simply’ that she was not a ‘person’ referred to in the Cape Charter of Justice of 1883. The court said: ‘If it was rightly answered in the court below, the result will be materially to 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. If it was wrongly answered, then the law of the country will be denying to one-half of its citizens, on the mere ground of sex, the right of employing their natural abilities in the pursuit of an honourable calling’. Innes ACJ held that the Cape court was wrong. His fellow judge, Solomon J, also expressing regret, held that ‘the central fact which we have to bear in mind, in approaching the consideration of these enactments, is that from time immemorial men only had been admitted and enrolled as attorneys of the Court’. This seems to me to be an expression of regret similar to that of the Walrus in Lewis Carroll’s poem ‘The Walrus and the Carpenter’ where, after eating all the oysters he said to them ‘“I weep for you,” … “I deeply sympathise”’ (Lewis Carroll Jabberwocky and Other Nonsense (Penguin Classics 2014)). Solomon J also found against the applicant Ms Wookey ‘mainly on the ground of the immemorial practice of centuries’ of excluding women from the attorney’s profession. De Villiers JP, concurring, held that a woman was not a ‘person’ for the purposes of the Charter. Extraordinarily he reasoned: ‘Accordingly we find that, inter alios, boys under 17 years of age were excluded from the profession of attorneys or advocates, as also women, the deaf, and the blind. The later Christian Emperors introduced further restrictions, which were also adopted into Dutch practice: Pagans, Jews, pronounced heretics, persons, for example who deny the Trinity. … Some of these restrictions are undoubtedly obsolete. It would be difficult to maintain that a blind person duly qualified in other respects cannot be admitted as an attorney on the ground that he cannot see and, therefore, cannot pay the proper respect to the Magistrate. The prohibitions, too, based on race or religion are notoriously obsolete. Can the same be said of the prohibition based on sex? I am of the opinion that the answer must be negative.’ Despite admitting that many of the legal disabilities under which women had laboured in the past had been abolished, this judge relied on the fact that from Roman times down to his own day the profession of an attorney had been exercised exclusively by men and, therefore, the law must refer to men only.

Ms Wookey lost her appeal.

This was followed by some obnoxious outpourings in the South African Law Journal. RPB Davis in ‘Women as Advocates and Attorneys’ (1914) 31 SALJ 383 (who subsequently became Mr Justice Davis, presumably with the emphasis on ‘Mr’) poured out his prejudiced thoughts by quoting a 40-year-old US judgment (Matter of Goodell 20 Am Rep at 42) which said that ‘person’ could not include females: ‘We cannot but think the common law wise in excluding women from the profession of the law. The profession enters largely into the well-being of society; and to be honourably filled and safely to society, exacts the devotion of life. The law of nature destines and qualifies the female sex for the bearing and nurture of the children of our race and for the custody of the world, and their maintenance in love and honour. And all life-long callings of women, inconsistent with these radical and sacred duties of their sex, as is the profession of law, are departures from the order of nature; and when voluntary, treason against it.’ The US judge continued that public policy did not expect the court ‘to tempt women from the proper duties of their sex by opening to them duties peculiar to [men]’ because ‘[t]here are employments in life not unfit for female character’. The article is worth reading in full to understand the extent of prejudice expressed by the US judge. Davis said, in his 1914 article, that the words of the US judge were ‘as fresh today as when they were uttered close upon forty years ago’ and suggested the remarks should be considered by the legislature if it ever thought of changing the law.

Not to be outdone, the former Chief Justice of the Orange Free State, Melius de Villiers wrote an equally prejudiced article ‘Women and the legal profession’ (1918) 35 SALJ 289. After taking for granted ‘for the sake of the argument, that intellectually the average woman will be at least as capable as the average man’ to be an attorney or advocate and that ‘the administration of justice will be greatly benefited by women’ being admitted he went on to say, relying on the ‘interest of the community at large’, that the ‘point is that of Motherhood’. He justified this by saying: ‘For the sake of perpetuation of the race, … women are by nature what they are; if in the part assigned to women by nature an injustice is done to them or a hardship is inflicted upon them, these are none of man’s doings, nor can he with the best wishes in the world do anything to make things otherwise. A revolt against nature by women may be successful, but it is the community at large that would have to suffer for it. And a revolt against nature is involved in any proposal to allow women to enter into the legal profession as practising members thereof.

Their entrance into the profession is incompatible with the idea and duties of Motherhood. Women who practise as lawyers will either have to remain unmarried, or to marry on the condition of having no children, or to marry and under normal conditions have children, in which last case a woman will practise at such a tremendous disadvantage to herself, her clients and her offspring for some time before and after giving birth to children that she ought to be precluded from practising’.

Worse was to come: ‘In this country especially, with a native black population increasing at an alarming rate, is it desirable that there should be checks on the normal increase of a native white population?’ De Villiers CJ, then mused over whether women who were no longer capable of motherhood should be allowed into the profession but thought it ‘questionable’ whether at that period of time a woman would care to start a legal practice.

To the credit of Parliament they ignored all these views and showed themselves to be good examples of what De Villiers CJ had condemned as ‘doctrinaire liberalism’, ignoring the suggestion that it was against common sense and a common danger to let women into the profession.

On 10 April 1923 the Women Legal Practitioners Act 7 of 1923 was promulgated by publication in the Government Gazette (The Union of South Africa Government Gazette Extraordinary Vol. LII: 10 April 1923: No. 13). It is perhaps fitting that it was a Government Gazette Extraordinary.

The Women Legal Practitioners Act, 1923 is short and sweet. Succinctly the law says: ‘Women shall be entitled to be admitted to practise and to be enrolled as advocates, attorneys, notaries public or conveyancers in any province of the Union, subject to the same terms and conditions as apply to men, and any law in force in any province of the Union regulating the admission or enrolment of persons as advocates, attorneys, notaries public or conveyancers shall henceforth be interpreted accordingly’.

Despite the fact that we are only three years away from celebrating the centenary of the admission of women into the profession it has taken a long time to get where we are and we are still not anywhere near where we should be, having women leading in sufficient numbers in all branches of the profession. I have quoted extensively from my sources of information because I suspect that there are still men who would prefer the views of RPD Davis and Melius de Villiers to those of the Parliament of 1923. We need to take stock over the next three years of exactly where we are and how we can get far beyond where we have limped to. We need to take into account of what François Poullain de la Barre, a little-known 17th-century feminist, said: ‘All that has been written about women by men should be suspect, for the men are at once judge and party to the lawsuit’ (Deirdre Bair Simone de Beauvoir – a biography (Simon & Schuster 1990)). As artificial intelligence enters and changes the legal profession we have to be alert to the fact that everything that is downloaded into the electronic system will have been written overwhelmingly by men because of the system that has kept women out of the legal profession in large numbers. In addition, the programming of artificial intelligence is being done mostly by men because that is the current state of the electronic world. Past ingrained prejudices about issues involving women both as professionals and as women subject to the legal system must not be perpetuated by lack of vigilance.

I hope that the Legal Practice Council has made a note of that date, 10 April 1923, so that when the centenary comes around we celebrate the date and commit ourselves to true equality in this and in all other respects relating to our profession.

Patrick Bracher Attorneys Admission Diploma (Unisa) is a legal practitioner at Norton Rose Fulbright SA Inc in Johannesburg.

This article was first published in De Rebus in 2020 (Sept) DR 14.