N Botha: Women’s Conference in Women’s Month

1 August 2006

Theme: The improvement of the quality of life and the status of women (in
the context of Justice and Constitutional Development)

Programme Director
Members of the Law Society of the Northern Provinces
Honourable members of the Judiciary
Esteemed members of the legal profession
Judicial officers
My learned friends
Distinguished guests
Ladies and gentlemen

Good morning

It is, indeed, an honour and a privilege for me to address you this morning.
Thank you for inviting me and for affording me an opportunity to share some
thoughts on what I consider to be a very challenging issue.

And to be requested to do this in the context of Justice and Constitutional
Development is even more daunting. For the past two weeks I have been asking
myself whether I am the right person for this occasion. But, anyway, here I am.
You spur me on, to continue to strive for the betterment of all women.
This year marks the 50th Anniversary of the women’s march to the Union
Buildings on 9 August 1956. The women were protesting against the imminent
introduction of the infamous unjust pass laws that were intended by the
apartheid regime to further polarise and dehumanise the people of South Africa.
We are told that well over 20 000 women marched on that day.

This was undoubtedly one of the largest and most effective demonstrations in
this country. At the height of repression women dared to challenge the brutal
apartheid regime. This show of strength and resilience of women reinforced what
they had been telling their male comrades for many years that they, too, are
quite capable and prepared to be involved in the national democratic
revolution, alongside men, for the liberation of all the oppressed people. This
assertion by the women of this country redefined strategies and tactics
hitherto employed in the struggle. Women, too, were now recognised as a force
which had a critical role to play in the process of transformation towards a
free, democratic, non-racial and non-sexist society.

The women had already made this intention known two years prior to this
march when they adopted the Women’s Charter of 1954 at the inaugural conference
of the Federation of South African Women. This was before the adoption of the
Freedom Charter in 1955.

In later years this very powerful document was to be used as a basis for
subsequent women’s charters and even our Constitution which is founded on the
values of freedom, human dignity, equality, non-racialism and non-sexism.
The Women’s Charter of 1954 incorporated a clause entitled “Test of
Civilisation”. It reads: “The level of civilisation which any society has
reached can be measured by the degree of freedom that its members enjoy. The
status of women is a test of civilisation. Measured by that standard, South
Africa must be considered low in the scale of civilised nations.”

Can we honestly say that South Africa has passed that test? Can women in the
legal profession claim that these goal set by women 52 years ago, has been
achieved?

For those women too, in those days, it was a terrain of struggle which
required all of them, “African, Indian, European and Coloured” (as they were
called then) to stand together to fight for the human rights of women.
It is my belief that to register any kind of progress in improving the quality
of life and status of women, a sound legal framework is one of but not
exclusively the critical elements. I am, therefore, delighted that you will be
engaging in a somewhat deeper discussion on a matter which I think we have not
all paid serious attention to.

What then would be the role of women in the legal profession? Perhaps, the
starting point is to remind ourselves that “umuntu ngumuntu ngabantu” – I am
who I am because of other people. In other words, you are who you are today
because of the role that other people played in your life. That should be our
starting point!

I know that I am in the company of learned persons who would understand
better than I, the challenges which are manifest in the legal sphere, for
example, the challenges posed by a judiciary that is yet to be transformed is
one of the topical issues.

Twelve (12) years into our young democracy we are still grappling with
issues concerning the judiciary who, I would have expected, to play the leading
role in the transformation of our society. The judiciary, to my mind, is a
critical institution of our government which should and must promote and
protect the founding values of our democracy and the rights entrenched in our
Constitution.

The judiciary has a fundamental task to serve all the people of this country
with impartiality, without fear, favour or prejudice. We are all aware of and
have a keen interest in the current debates in relation to the transformation
of the judiciary, as this will have far-reaching implications. One of those, we
hope, is how judicial transformation will effectively advance the improvement
of the quality of life and status of women in our society broadly and
particularly in the legal system and within the judiciary and legal
profession.

I’m trying to make the point at two levels – the one takes into account the
importance of internal transformation of the judiciary and the entire legal
profession; while the other takes into account the impact of such
transformation on the daily lives of people, particularly women who, we all
know, have been disadvantaged over many years in the legal system.

I trust that I am not the only person who recollects a time when women held
the status of minors and legal standing depended on either husbands or male
family members.

The quality of life and status of women in our society ought first to be
reflected within the judiciary, in particular, on the bench. The representation
of women, at this, one of the highest levels in the judiciary, leaves much to
be desired. According to a report by Idasa, ‘Necessary Judicial
Transformation,’ representatives of women judges is poor, in a legal system
that is beset with violence and abuse against women who are among the most
vulnerable members of our society.

With reference to the Bar, an important source for new entrants to the
Bench, the late Chief Justice Ismael Mohamed stated, “It is crucial for this
country that the Bar should succeed in greater transformation, it will bring
not only fulfilment and meaning to new generations of young men and women
attracted by the eternal fascination of the law but it also will accelerate the
process of healing the deep wounds inflicted by the pain and the shame of our
racist past. It will discipline and accelerate the crucial process of
transformation – domestically within the Bar itself to reverse the grossly
unacceptable racial and gender distortions within its own membership at all
levels and externally to restore for the law its legitimacy, relevance and
living creativity in a constitutionally protected democracy.”

Premier of KwaZulu-Natal, Dr Sbu Ndebele, in his address last year at a
workshop on the challenges in a transforming South Africa, posed the following
points for consideration (please bear with me as I really feel it is important
to repeat them today). He states:
• “The majority of judges in the High Courts are still white and male – 99
white males and 27 black males as against 26 females across the “colour”
spectrum.
• There is no clear indication that all judges appointed during the apartheid
era have embraced transformation.
• There is a general complaint that black practitioners during the apartheid
era were not given work that would facilitate their appointment to the High
Court bench.
• Even today, black practitioners consider themselves as still disadvantaged
because there is no trained pool from which black judges can be
appointed.
• Gender equity (especially in relation to black women practitioners in KZN)
leaves much to be desired. Capable black women practitioners are leaving
practice.
• Racist attitudes overwhelm the minds of some judges and the meting out of
justice is still unequal. Considering the judgments in some civil and criminal
matters, it is possible to conclude that many offenders are judged on their
colour and not on the merits of the case.
• There are insufficient mechanisms to “guard the guardians”. Short of the
constitutional test of gross misconduct or negligence, how can a judge be
disciplined?
• To what extent should judges review government policies aimed at gradual
realisation of socio-economic rights?
• How accessible are courts to the ordinary person?
• How accessible are courts if the languages used in court are mostly English
or Afrikaans?
• Many within our judiciary do not see themselves as being part of the masses,
accountable to them and inspired by their hopes, dreams and value
systems.”
He further goes on to question the role of the judiciary in the development of
our society which, he perceives as “the changing role of the judiciary from a
passive bystander with a narrow legalistic philosophy out of touch with the
values enshrined in our Constitution.”

All of what the Honourable Premier Sbu Ndebele raised invariably impacts on
the quality of life and status of women in the larger society but also within
the legal system and the judiciary and legal profession.

Some of the issues that impede the success of Government programmes that
address themselves to the protection of women’s rights are pertinent to
mention. These include: the ramifications of emasculation during colonialism;
the legacy of an oppressive system, apartheid; changes in social structures
accompanied by inability to accept change and, in effect, resistance to change;
and the legitimisation of violence against women that is supported in various
subtle ways.

Allow me to point out that when we examine the current context in which we
are living, we must do so with an awareness of our history. It is not merely
rhetorical to refer to the colonial structures of this country; after all, the
very legal system within which we operate was founded on Judaeo-Christian laws,
Roman-Dutch law, customary law, etc. These formidable laws that were imposed on
people had untold consequences that have led us to where we are now. Some of
these laws have not yet been repealed or amended in line with our
constitution.
Our challenge is to transform the inequitable basis and application of those
laws, so that in a contemporary South Africa they respond eloquently to our
Constitution, which now protects the entire citizenry of South Africa. The
impact of the additional subjugation of women that resulted during apartheid
led to tremendous setbacks in the socio-economic development of women, such
that ascendancy and transcendence of circumstances was almost impossible.

The consequences of our history are such that our social structures have
changed. Similarly, our beautiful and diverse culture is not static. It
continues to undergo change after change after change. These many changes,
while enriching, also provide a platform for the articulation of where we want
go, as a nation. Part of the charting of these new directions must include the
systematic elevation of the status of women in order to address the decades of
systematic devaluation, at an individual as well as at a legal level. We cannot
now, as a conscious nation, support factors that in effect promote the further
oppression and the devaluation of women.

Arguably, the freedoms which we now all enjoy should be accompanied with
commensurate responsibility. As esteemed members of the legal profession, you
are uniquely placed to assure the stripping away of any and all systems of
legal oppressions that existed in the past and ensure that the formulation of
future legal frameworks are fully cognisant of the rights and equality of women
and children in our society.

Our goals for the socio-economic ascendancy of women are indisputably
reflected in various Government programmes. Allow me to mention a few. In the
Department of Arts and Culture, for example, the social, cultural and economic
empowerment of women and other marginalised groups in our society is in the
forefront of our programmes. A flagship programme of the DAC is the Mosadi wa
Konokono Campaign, a campaign that is supporting women who use the cultural
industries to uplift their communities. An instrumental partner of this
initiative is the Investing in Culture Directorate that helps persons in the
so-called second economy to acquire greater marketing and production skills
thus enabling them to move quickly into the mainstream economy or what is
usually referred to as the “first economy”.

I’m certain that you are all aware that because of the persistent incidents
of violence and abuse against women and children, we have, alongside the 16
Days of Activism Campaign, embarked on a 365 Days Campaign seeking to end the
Violence perpetrated on Women and Children all year round.
All of the programmes have the same goal – to improve the quality of life and
the status of women.

Conclusion:

What then is the role of women in the judiciary and in the entire legal
profession – magistrates, advocates, attorneys, prosecutors, and all lawyers
and judicial officers included – in the process of transforming our society to
become the truly free, democratic, non-racial and non-sexist society, united in
our diversity?

How do we, for example, address the issue of gender power relations which
has become the greatest challenge of our times in our country? How do we deal
to the “backlash” which is presumably a reaction by some men to the affirmative
action of government in relation to women? How do we respond to utterances in
the public discourse to the effect that this country “is not ready for a woman
president? Why are we not fighting together for the upliftment of all women in
this country? Are we too afraid to shake the pillars of patriarchy? Or are we
perplexed by the dichotomy between the values or principles which some people
publicly purport to espouse, for the advancement of the cause towards the total
emancipation of women, on the one hand, and those practices in the privacy of
homes and workplaces which are in direct contradiction?

We need more women judges on the bench. We need more women lawyers who will
specialise in various fields. We need more women prosecutors who will have an
understanding of issues pertaining to women, gender, gender power relations,
socio-economic and socio-political challenges. You have the knowledge and
intellectual capacity to lead us through this Age of Hope to substantive
equality and real freedom.

Could it be that the Progressive Women’s Movement of South Africa which is
soon to be launched in Bloemfontein next week is the answer to our woes? I wish
to also add my voice to those women who are calling for all South African women
to unite and work together towards the attainment of universal human rights.
Like the women of 1956, let us march on to advance our own emancipation.
While we continue to be a beacon to the rest of the world let us strive to
emerge as our own very best exemplars, so that models for change are within
easy reach and present opportunities every day for a better society, a better
South Africa and a better world. So far, I must congratulate you and all the
women of South Africa. You’ve done extremely well under very trying
circumstances.
Once again, thank you for inviting me and thank you for your attention.

Issued by: Department of Arts and Culture
1 August 2006
Source: Department of Arts and Culture (http://www.dac.gov.za)