Women, the judiciary and transformation

October 1st, 2013

By Nomfundo Manyathi-Jele

The gender committee of the Law Society of the Northern Provinces (LSNP) held a women’s conference in Pretoria at the end of August. Under the theme ‘Women in modern society: Towards the future’, delegates discussed the under-representation of women in the judicial system, legal ‘Monopoly’, how men are coping in the changing world of women and ways women are branding themselves and boosting their careers.

The keynote addresses were delivered by the Minister of Public Service and Administration, Lindiwe Sisulu and Judge of the South Gauteng High Court, Margaret Victor. Other speakers at the conference included the newly appointed Commissioner of the South African Law Reform Commission and Director for the corporate and commercial section at DLA Cliffe Dekker Hofmeyr, Thina Siwendu; Commissioner at the Judicial Service Commission and acting Judge, CP Fourie and the Vice-President of the LSNP and Chairperson of the gender committee, Dr Llewellyn Curlewis.

Justice and equality for women not yet achieved

Minister Sisulu said that it was pleasing to have the current level of female representation in the legal profession. She said it was an undisputed fact that women have always been at the forefront of the struggle for freedom and the struggle for justice, ‘from the time when they marched to the Union Buildings, the ultimate seat of power of government at the time, to the time they occupied some of those buildings to represent you and make sure that your voice and your concerns are heard’. She added that their presence at the conference was testimony to the fact that justice and equality for women had not yet been achieved.

Minister Sisulu said she understood that women make up more than a third of practitioners in the legal profession. ‘I am informed further that there are 12 187 attorneys admitted to practice law and who are members of the Law Society of the Northern Provinces. Out of these, 7 784 are male and 4 403 are female. Universities produce a large number of female legal graduates but only a small number enters the legal profession and remain. I am advised that, of those that remain in the legal profession, a large number does not progress to swell the ranks of the High Court judiciary, despite the pioneering work of those women before them. The questions that must then be asked are: What specific challenges do women in particular face in the legal profession that constitutes a barrier to their advancement in the same way that men advance? Is government perhaps not doing enough to eliminate any barriers that may exist?’

The Minister added that law must have a more profound meaning to lawyers and that this purpose can be nothing else but justice for the people of the country. ‘We depend on you to use the law as a tool to dig up the roots of injustice from all corners of our country. … In your hands the law must be our liberator as women, not an instrument of oppression. It must also not be used to shackle our bodies and our minds by its insistence on precedent and tradition, when the circumstances of today demand change,’ she said.

She noted that, despite South Africa’s Constitution, justice continues to elude some people, especially women. ‘How then can we use the law to advance the course of justice for women? What role must women lawyers play?’ she probed.

She said the Constitution was a product of the struggle and that it was also about the transformation of society. ‘You should ask yourselves as lawyers whether or not our laws are aiding the transformation of society in the way they are interpreted and applied to circumstances that face our people daily? Is this not a new struggle, the fight for the correct interpretation of the Constitution in order to ensure that we get the intended outcomes of our struggle’, she challenged.

Minister Sisulu urged women not to give up and seek an easier path.  ‘You must find strength in the knowledge that you have come this far and have to strive to achieve more.  You must find strength in the knowledge that your presence alone in the practice of law is a fountain from which the generations coming after you will quench their thirst. There is still a lot to be said about how the law in the past and today, impacts on the lives of women.  The women’s version of what the law represents to women, must still be told. Only women can tell their own stories and if that is to happen, the women’s voice must be heard louder than before’, she said.

Minister Sisulu said government had passed many laws that open opportunities for people from all walks of life to pursue their careers, adding that women get preferential consideration. ‘This is allowed because of the recognition that women have, for many years, faced unfair discrimination and unequal treatment solely on account of being women. This preferential treatment of women is permitted by the Constitution in section 9 where it states as follows: “Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken” ’.

The Minister said that, with the Constitution mandating that equality should be strived for, and taking special legislative measures to achieve it, women were better placed now than ever to realise their own dreams, adding that the legal profession was no exception.

Create opportunities for other women

Minister Sisulu urged the female lawyers present to create opportunities for other women to enter the profession through guidance and mentorship. ‘As women you have the power in you to rise above all challenges and find your rightful place amongst your peers. I say this to all of you, but more importantly to the black women in this profession because you remain fewest in representation as practitioners and as judicial officers.  Government will do its part, but you must do just as much if not more, for only you know your needs and the environment better’, she said.

Minister Sisulu said one of the purposes of law must be to solve problems that face society, adding that it must offer practical and implementable solutions for citizens. She further stated that, if the law failed to do this, then what is it good for?

Minister Sisulu said government passed good laws and policies but it had been criticised for poor implementation.  ‘Quite clearly the laws do not always work well for us.  As lawyers, should you not then find ways and means through which you can use your skills and expertise differently’, she challenged the audience.

Minister Sisulu said that the law can be an important tool to effect social transformation.  ‘There are many fora in which your influence can be felt on issues that have an impact in the lives of our people. Being a lawyer cannot be an end in itself.  It must be a means to a greater course and destination. You must be part of the discourse in the public space on issues that affect us all. You can take up causes for ordinary people that can never afford paying lawyers’ fees but have burning issues to resolve. If you look critically at important events in our country, many directly and negatively affect women in ways we only imagine. Marikana is one example and yet the fight for justice for those involved is mostly led and driven by male lawyers,’ she said.

Minister Sisulu concluded by saying that there would be no justice unless the arm of the law and the face of justice reaches out to all women, rich or poor, and pleaded to female attorneys to reach out to the less fortunate women in order to give them access to justice and to their rights, adding that justice and equality were some of the rights that female lawyers must make real.

Judge Victor spoke about South African women in law and where their future lies. Judge Victor spoke about the women’s march to the Union Building in Pretoria in 1956 and said that, 38 years after the march, two women justices were appointed to the Constitutional Court: Justices Yvonne Mokgoro and Kate O’Reagan. She added that it was unfortunate that, 19 years into democracy, there are still only two female justices at the court.

Speaking about the Supreme Court of Appeal, Justice Victor said that with seven women on the Bench, female representation at this court was growing. She noted that there was a record 30% level of permanent and acting female judges at the North and South Gauteng High Courts and she added that this was a magnificent stride for which these divisions needed to be applauded.

Justice Victor said that when she joined the Bar, female lawyers were assigned only divorce cases. She added that to ensure equality and transformation of the legal profession, women needed to incorporate men into the debate as ‘we cannot do it without them’. She advised the senior attorneys and firm owners present to engage younger women in their firms and to encourage candidate attorneys to attend court cases and to mentor them.

Judge Victor concluded by saying that the challenges for female equality were international and that it was not only a South African based problem.

The President of the LSNP and of the Black Lawyers Association, Busani Mabunda, delivered the opening address in which he gave a brief background of the LSNP. He said the first female councillor of the LSNP had been Professor Esmé du Plessis who served on the council from 1992 and served as its first female president from 1995 to 1996.

Mr Mabunda said that the LSNP’s first black female councillor was Kathleen Matolo-Dlepu, who is currently one of the Law Society of South Africa’s (LSSA) co-chairpersons. She was also the first black female vice-president from 2006 to 2007. Sheila Mphahlele served as vice-president from 2007 to 2008 and Peppy Kekana served in the same capacity from 2009 to 2010. Mr Mabunda noted that, since the establishment of the LSNP in 1892, there has been only one female president, adding that it was a record that the LSNP was not proud of.

Mr Mabunda also mentioned that it was encouraging to note that statistics indicate that there had been a substantial increase in the number of women entering all levels of the legal profession. ‘This includes studies in law at academic institutions, attendance of legal courses presented by the LSSA’s Legal Education and Development department, serving articles of clerkship and even admission statistics of attorneys confirm this development,’ he said.

He added, however, that it was disappointing that black women represent less than 1% of the total number of senior counsel in South Africa. He said this reflected badly on the profession and added that attorneys must not be complacent.

Mr Mabunda said the LSNP was concerned about the slow pace of gender transformation in the profession, but that, through its gender committee, it would ensure that every possible opportunity is used to encourage meaningful participation of women in the legal profession. He said: ‘We should not feel defeated, but be proactive in ensuring meaningful female representation in our profession.’

Mr Mabunda concluded by saying: ‘It is encouraging to note that there are many prominent women serving in the judiciary, such as in the Constitutional Court and the Supreme Court of Appeal and the latest interviews conducted by the Judicial Service Commission for the North and South Gauteng High Courts resulted in no less than three female attorneys from our jurisdiction being appointed as judges of the High Court.  We commend Judge President Dunstan Mlambo for his visionary leadership and commitment to this noble cause.’

Ms Siwendu gave a speech on ‘Legal Monopoly – what is required to get out of the legal gender transformation jail scot-free?’, in which she investigated what needed to be done to get that ‘Monopoly’ ticket.

Ms Siwendu said she was fortunate because she was supported by incredible men, black and white, throughout her career. She said that these men had the foresight of understanding that the place of women was not only in the kitchen and that race or gender did not define what happens to you and who you are.

Ms Siwendu grew up in the Eastern Cape. She said the contradictions of growing up in this part of the world was that one grew up in a bubble thinking that, as a woman, you can be and do anything you want. She added that she had not engaged with the gender dynamics of society, particularly the racial dynamic, until law school.

Ms Siwendu spoke about what was happening in law firms. She said there was entrenched racism, patriarchy, misogynist behaviour and thinking and sometimes outright insults and instances of sexual harassment ranging from references to physicality to things that are profoundly painful for women and that this happened behind closed doors. She questioned: ‘How do we explain this reversal of our fortunes as women 20 years after democracy?’

Ms Siwendu said that everyone seemed to single out education as the consequence of the lack of representation, particularly of black women. ‘I beg to differ … because, if you look at the recruitment patterns of those firms, they tend to recruit from top schools and it cannot be the sole lens through which we look,’ she said.

Ms Siwendu said that South Africa has a history of a very oppressive regime and that it was not surprising to her that there was a conspiracy of silence among lawyers because they are repeating exactly the same patterns of the past.

Ms Siwendu said that a study was conducted in the United Kingdom on this issue in 2010 showed that the issues were similar to those experienced by South African women. She said that collective action, team work, collaboration and diversity were needed to tackle the problem.

She said law was evolving and women attorneys needed to be able to take time to reflect on the impact of these things on the jurisprudence and to advance the discipline.

In conclusion, Ms Siwendu looked at what needed to be done. ‘We know what the issues are, what are we as women going to do to deal with these things?’ she questioned. She said that women needed to expand their circle of influence around these issues and outlined the following seven points that could help remedy the situation:

  • Women need to activate the thinkers among them, and in each of them.
  • Women need to break the conspiracy of silence and speak out; it always seems impossible until it is done.
  • Women need to have their own ‘never-never-and-never-again convictions’ and moments, like former President Nelson Mandela had when he was inaugurated. There needs to be dialogue among female attorneys to formulate convictions for the profession and to sound their own firm convictions of what they are going to tolerate in the name of the practice of law. As an example, she said that her ‘first “never-and-never-again conviction” was to never hear a story of how our children are humiliated in law firms in the name of the practice of law, the very instrument that is supposed to liberate us’.
  • Women need to invite their male colleagues into this conversation because they cannot do it alone; men still hold the economic power.
  • Women need to explain their needs.
  • Women need to approach the LSNP to conduct comprehensive research, if not already available, on existing practices that hinder them and, from that, they can design a protocol and guidelines for law firms on how to set up conditions that enable women to work effectively and deal with the discrimination they suffer.
  • The LSNP has enormous power to monitor law firms, it does so in relation to trust accounts. It should therefore also be able to do so in relation to gender issues and women should demand that they do so.

Ms Siwendu concluded by saying: ‘If we meet here next year to celebrate, we should be able to state that the Monopoly card to get out of jail is firmly in our hands’. She added that women were not going to retire from these issues, and that the preparation for the 20-year democracy celebration was a great opportunity for attorneys to stand with one another, men and women, as a profession and as individual firms to tell their stories without devaluing each other.

A ‘fair’ judicial system: With or without women? 

Mr Fourie tackled the topic of whether any judicial system can be fair and just if women are under-represented within it. ‘I must immediately say yes, a judicial system can be fair and just if women are under-represented within it, but let me immediately clarify to say that the opposite is also true. A judicial system can also be fair and just if men are under-represented within it,’ he said.

Mr Fourie said that the reason why he believes this is true is because the measures for judging whether a judicial system is fair have different yard sticks than that of gender. He said that the fairness and justness depend, among other things, on the quality of justice dispensed, which includes dispensing justice fairly, speedily and without fear or favour by fit, proper and suitably qualified judicial officers. He added that, in a constitutional state like South Africa, the application of the Bill of Rights enshrines the rights of all people and affirms the democratic values of human dignity, equality and freedom.

He said when it comes to the perception of legitimacy of a judicial system, the issues of gender and race, particularly in a diverse society as South Africa, become important; adding that it was therefore no surprise that s 174(2) of the Constitution provides: ‘The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.’

Mr Fourie said that this was not only a South African requirement but a worldwide one. He said it was necessary that the judiciary broadly reflected the racial and gender composition of a country. ‘To achieve this, however, is a tedious process and not an instant event, particularly taking our history into consideration,’ he said.

He noted that s 174(1) provides that any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer. He highlighted that ‘appropriately qualified person’ and ‘fit and proper’ were the imperatives, adding that only once such candidates were identified and nominated, can the consideration of gender come into play.

Mr Fourie said that if appropriately qualified judicial officers who are fit and proper are not appointed, the fairness and justness of the judicial system would be compromised and that a weak judicial system would deny citizens proper access to justice.

He said that, when it comes to the weighting of the provisions of ss 174(1) and 174(2) of the Constitution, a debate has been raging for years and was still unresolved. He said that there were two schools of thought: First, when you have to weigh two candidates, for example a man and a woman, and the man is more appropriately qualified, fit and proper than the woman, but the woman has potential to develop, then the woman should be appointed ahead of the man in order to give effect to s 174(2). The other school of thought advocates that this should not be done since it compromises standards, which cannot be afforded and that a more appropriate approach would be that, if a man and woman are equally appropriatley qualified, fit and proper, then the woman should be preferred in order to give effect to s 174(2).

Mr Fourie noted that to refer to the last school of thought as anti-transformation, may be a simplistic view. He added that, in a certain respect, it may be a good thing that the Helen Suzman Foundation was taking the Judicial Service Commission (JSC) to court on this issue as it might result in the highest court in the land pronouncing on it. ‘At least, whichever way it goes, it will create more clarity on how to approach this,’ he said.

Mr Fourie said that from 2003 to date, the JSC has recommended 271 candidates for appointment to the Bench. Of those 84 had been females. He said although this was less than a third, it was a significant improvement as compared to the past. However, he said, the improvement was not sufficient.

Mr Fourie said that the pool of women from which the judiciary draws, must be wider. He added that the JSC regularly discussed the problem and that it has made numerous public calls for nominations, but that the response has been largely reactive. ‘For example, for the vacancy on the Constitutional Court Bench, no women were nominated. There was an outcry when the shortlist went out and a call for the interviews to be cancelled and for the position to be re-advertised. Why did those who cried out not ensure that they nominated enough women to begin with?’ he asked. ‘That would have been proactive. Imagine the precedent this would have set if the calls were adhered to?’ he said.

Mr Fourie pointed out that of the attorneys under the jurisprudence of the LSNP, only 36% were female. Mr Fourie said that this was worrisome as statistics show that women make up 53% of candidate attorneys, which seemed to be in line with the percentage of graduates. ‘Somewhere they disappear. What happens after university and/or articles? How do we proactively widen the pool to draw from? If we have no answer, we will never be able to meet the demographics of the gender composition of the country because the JSC does not know the answers.’

Mr Fourie said that the shortage of female lawyers may be a reflection of a problem that goes deeper than just the fact that women do not readily avail themselves for judicial appointment or that it may be that fewer women choose to make a career in the practice of law, which has previously been considered a logical career path to the Bench, or that it may also be that most of them proceed to commerce with more women entering the legal academia.

Mr Fourie opened the topic up to the floor. He asked the female attorneys present to help him find solutions.

Some of the problems highlighted by the female attorneys were:

  • The lack of proper mentorship and equal power.
  • The fact that women were not willing to go through the nomination process again when they were unsucessful the first time; with others saying that they were not yet ready or willing to pursue it.
  • Women were not given the opportunity to practise because of a lack of opportunity.
  • The need for work in order to mentor others.
  • The LLB degree not equipping them with sufficient skills.

Nomfundo Manyathi-Jele, nomfundo@derebus.org.za

This article was first published in De Rebus in 2013 (Oct) DR 11.