Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the 17th Conference and Annual General Meeting of the South African Chapter of the International Association of Women Judges, in collaboration with the Department of Justice and Constitutional Development and the Department of Women, Youth and Persons with Disabilities, held at Lagoon Beach Hotel, Milnerton, 5 August 2023
Programme Director and Justice of the Supreme Court of Appeal, Madam Justice Heaton-Nicholls,
The Deputy Chief Justice of the Republic of South Africa and President of the South African Chapter of the International Association of Women Judges, Deputy Chief Justice Maya,
The Minister of Higher Education, Science and Innovation, Hon Nzimande,
Esteemed judges and magistrates present,
Directors-General present,
Distinguished guests and friends,
I want to take this opportunity to congratulate Deputy Chief Justice Maya on her recent appointment as the Vice President of the International Association of Women Judges.
Indeed, this is no small feat and is a deserving and fitting recognition, by her peers, of Justice Maya’s astute leadership qualities.
As a country we are honoured by the recognition bestowed on you, Deputy Chief Justice.
I also wish to congratulate Justice Maya for her leadership which enabled South Africa to emerge victorious in our bid to host the IAWJ Biennial Conference in 2025.
Congratulations on your successful bid and I have no doubt that you will do our country proud when hosting the Conference in 2025.
And while we are on the topic of the successes of women, I must also include the excellent performances of Banyana Banyana at the FIFA World Cup. They indeed made us as a country beam with pride. We, of course, will be routing for them in their match against the Netherlands tomorrow.
And it would also be remiss of me not to mention the excellent performance of our netball team, the Proteas, at the Netball World Cup currently taking place here in this city. We congratulate them on their sterling performances.
As we commend Banyana Banyana and our Protea Netball team, one is reminded of the words of the Pan-Africanist revolutionary and former President of Burkina Faso, Thomas Sankara, who said that women hold up the other half of the sky.
Or perhaps it was Lucky Dube who said it better in his song called “God bless the Women” -
“We praise heroes everyday,
But there are those that we forget to praise –
The women of this world.
They don’t run from anything,
They stand and fight for what’s right.
God bless the women
Even when times are so hard
They are so cool, calm and collected.
They don't run from anything,
They stand and fight
For what is right.
They do not run from responsibilities
They stand and fight for what is right.”
Programme Director,
Today, being the 5th of August, a very significant day in the history of South Africa. It is indeed a significant day as it was on this day in 1962 that Nelson Mandela was arrested by the apartheid regime near Howick in Natal, as it was then called.
And so began what would later become a period of 27 years spent in prison.
His capture signalled a turning point in our struggle against the unjust system of apartheid which not only oppressed black people but further subjugated the rights of women, and Black women, in particular.
And Tata Mandela was the most fervent supporter and champion of women’s rights. He said that, and I quote, “freedom cannot be achieved unless women have been emancipated from all forms of oppression.”
Significant strides have been made in gender equality since the dawn of our democracy and we must continue to build on these successes.
The theme of your conference is “Resilience and Innovation # End Gender-Based Violence and Femicide” - It is indeed a call for us to start thinking outside the box about innovative ways of ending the scourge of gender violence which the President has correctly termed as a pandemic.
The theme of this conference reminds me of the call made by the Constitutional Court in Tshabalala v S; Ntuli v S in the following words:
“This scourge has reached alarming proportions in our country. Joint efforts by the courts, society and law enforcement agencies are required to curb this pandemic. This Court would be failing in its duty if it does not send out a clear and unequivocal pronouncement that the South African Judiciary is committed to developing and implementing sound and robust legal principles that advance the fight against gender-based violence in order to safeguard the constitutional values of equality, human dignity and safety and security.
One such way in which we can do this is to dispose of the misguided and misinformed view that rape is a crime purely about sex. Continuing on this misguided trajectory would implicate this Court and courts around this country in the perpetuation of patriarchy and rape culture.”
We ought to and must all rally around this clarion call to innovate so as to eradicate the scourge of gender violence.
As Government, we have and will continue to intensify the fight against gender-based violence. Government is continuing to implement the National Strategic Plan on Gender Based Violence and Femicide by affording greater protection, particularly to women and children.
As you know, we have recently put three new pieces of legislation into operation to further strengthen the fight against GBVF.
These key pieces of legislation were envisaged to strengthen the legal framework in the fight against gender-based violence, to tighten the sentencing provisions against perpetrators, to enable online applications for protection orders making it more accessible and to introduce new provisions relating to the sex offenders register by widening its scope.
The President also convened the second instalment of the Presidential Summit on Gender-Based Violence and Femicide in November 2022 to provide feedback on the issues raised in the 2018 Summit. The Summit demonstrated that bold leadership, high-level political commitment and strengthened state institutional accountability are all factors which drive a multi-sectoral, society-wide, multi-faceted response to GBVF.
Programme Director,
Gender representation in the judiciary is of the utmost importance. The Constitution enjoins us, when making judicial appointments, to consider the need for the judiciary to reflect the racial and gender composition of South Africa.
Indeed, this constitutional injunction was included in our Constitution in recognition of our brutal and shameful history of racial and gender discrimination.
There is no doubt that women bore the brunt of the institutionalised racial and gender discrimination visited upon them by colonialism and apartheid.
As you know, this year we commemorate the centenary of women’s admission to the legal profession and we pay tribute to the many women who have pioneered and championed the way for other women attorneys and advocates.
We honour and pay tribute to those like Sonja Schlesin, Madeline Wookey, Irene Geffen, Constance Hall, Gladys Steyn, Cissy Gool, Desiree Finca, Victoria Mxenge, Lucy Mailula, Leonora van den Heever, Yvonne Mokgoro, Kate O’Reagan and so many others.
Women in the legal profession have faced a long and ongoing struggle. The first woman who tried to be admitted as an attorney was Sonya Schlesin, who was an articled clerk to Mahatma Gandhi.
In Schlesin v Incorporated Law Society (1909) the Transvaal Supreme Court held that the word ‘attorney’ meant men. Not only was Ms Schlesin’s application unsuccessful, but she also had to pay the law society’s costs.
One of the newspapers reported at the time that -
“An application was made before Mr Justice Bristowe in the High Court, Pretoria on Friday afternoon, on behalf of a young lady named Sonja Schlesin. Mr Justice Bristowe refused the application, with costs and declined to depart from the universal practice, which precluded the admission of ladies as attorneys.”
The article stated that refusal was based on the premise that “the articling of women is entirely without precedent in South Africa and never was contemplated by the law."
Three years later, in 1912 the Appellate Division also refused Madeline Wookey’s application to be admitted as an attorney. A full bench of the 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.
Solomon JA in 1912 was compelled by the "immemorial practice of centuries" to conclude that women could not be admitted to practice as attorneys.
A leading Cape judge, Judge RPB Davis, seems to share these sentiments when he said:
"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... 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.”
Fortunately five years later, in 1923, a law which allowed women to be legal practitioners was Gazetted. Women Legal Practitioners Act 7 of 1923, which provided in section 1, 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.”
That is the law whose 100th Anniversary we are celebrating this year.
The historical anecdotes I have given are testimony to the conservatism of the legal profession and the judiciary in the early 20th Century.
The first woman judge - Leonora van den Heever - was appointed to the bench in 1969 and was, at the dawn of democracy in 1994, still the only woman judge.
Later in 1994, Jeanette Traverso became our country’s second female judge and Lucy Mailula the first African woman judge. Later that year, Kate O’Regan and Yvonne Mokgoro were appointed to the Constitutional Court.
Buoyed by our new Constitution and acting in accordance with the provisions of section 174 of the Constitution, the transformation of our judiciary has been remarkable, particularly in relation to gender.
We have come a long way indeed.
Today, we are celebrating those women who have taken up leadership in the realms of this institution.
Today, out of 256 judges, 138 are male and 118 women judges.
At the end of last year, 52% of our magistracy are women – 4 out of 8 Regional Court Presidents are women and 10 out of 14 Chief Magistrates are women. Many of these women magistrates will, no doubt, soon be on the bench in our High Courts.
This proves, and is testament to what Deputy Chief Justice Maya said to the Judicial Services Commission, when she said that -
“South Africa has always been ready to have a female Chief Justice, at inception, as you point out, we had strong capable women in the Constitutional Court.
So, there’s never been a shortage of women who could take up leadership in any of the realms of this institution of ours….
We are as capable as men, I need not say that, JP.”
And we still need to do more to ensure that the representation of women judges is increased to be on par with that of male Judges. We know that part of the problem is that although most law graduates are women, the higher up you go in the attorneys’ or advocates’ profession, the fewer women will be found there. We need to address this. As Government, the State Attorneys have targets for briefs given to women advocates. We need to encourage the private sector to follow suit.
As you are aware our vision for this country is to see equal representation in terms of gender in the judiciary. And this is an ideal that, I firmly believe, will be realised in our lifetime.
I want to wish you all the best for the conference and the AGM. Let us bear in mind that when you empower a woman, you empower the nation.
Let us proudly say - Malibongwe Igama lamakhosikazi!
I thank you.
