Deputy Minister John Jeffery: Gender Transformation in the Legal Profession seminar

6 Oct 2014

Keynote address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at a Seminar on Gender Transformation in the Legal Profession, hosted by NADEL Western Cape

Programme Director, Ms Seeham Samaai
Chairperson of Nadel (Western Cape), Dr Joey Moses
Judge Siraj Desai, Judge Rosheni Allie and members of the Magistracy
Members of the Exco of Nadel (Western Cape)
Representatives from the Law Society, the Cape Bar, SAWLA, BLA, Advocates for Transformation and Legal Aid SA
Ms Yasmin Sooka
Ms Charlene May
Ms Noxolo Mabuda
Adv Roseline Nyman
Colleagues from the Department of Justice and Constitutional Development
Ladies and gentlemen.

There is some debate as to who was the world’s first female lawyer. This is apart from Portia in Shakespeare’s Merchant of Venice who practiced law by pretending to be a man.

Some will say it was Arabella Mansfield who was admitted to the Bar in Iowa in the USA in 1869. Others will say that it was really an Italian, Lidia Poet, who passed her exams and did her two years of practical training and met all the qualifications for admission, but could not be admitted to the legal profession due to the fact that she was female.

Poet, in her attempts to have herself admitted to the profession, encountered a variety of obstacles. She approached the Turin courts a few times. Her case sparked public controversy and even reached Parliament, but to no avail. She was eventually admitted to the Turin Bar in 1920 at the age of 64.

What is interesting though is that when one reads the transcripts of the cases, the judgment in the Turin court provided the following reasons as to why women should not be admitted to the legal profession: “It would be improper and ugly to see women descend into the court’s gymnasium, excite themselves among the noise of public judgment, participate heatedly in discussions that easily reach excess, and in which, in spite of themselves, they may be drawn beyond the limits that the fairest sex ought to observe…”

One cannot help but cringe when reading it. All of this took place a little more than a century ago.

In our own country women have faced an uphill battle to gain entry into the legal profession. And strangely not much is known about the pioneers of our own legal profession. All of us, given that we are lawyers and given our country’s history, should know who Desiree Finca is, but sadly there is very little information available on her.

Pius Langa wrote that Mahatma Gandhi was the first attorney in SA to register a female articled clerk, but the Law Society rejected her application to register for her articles, as did the High Court. In the case of Madeline Wookey in 1912, the Appellate Division refused her application to be admitted as an attorney, holding that a woman was not a "person" as required by the legislation. In Incorporated Law Society v Wookey a full bench of the then 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.

It was only in 1923 that legislation was enacted to allowed white women into the legal profession. And, continues Langa, “even after this reform, women were still only allowed into the periphery of the legal field. During the 1950s, the legal fraternity and white society perpetuated the view that white women had to be protected from the harsh realities of the male dominated legal profession. And even the miserly gains made by white women were not extended to black women.”

Getting back to Desiree Finca – Langa writes that it was in 1967, 44 years after the admission of the first white female attorney that Desiree, who came from Umtata, was admitted as the first black female attorney in the country. Appearing before a magistrate in Vereeniging, Finca struggled to be heard as the magistrate claimed he had never heard of a black female attorney. It was only after he confirmed her status with another attorney that the magistrate apologised and continued with the proceedings.

Judge Kate O’Regan writes in an article called “In the boys club” about being a female lawyer in a male-dominated profession and she says: “It was not an auspicious start. At the end of my first job interview, after I had graduated with my LLB, the senior lawyer at the distinguished Johannesburg firm of attorneys told me: “Well, the truth is we don’t like women at this firm.”’

Ladies and gentlemen, thankfully the legal profession has since transformed. Or has it?

The latest figures show that of our country’s 243 judges only 79 are female. That’s 32,5%. And although the racial diversity of the Constitutional Court in 20 years of democracy has gone from seven white judges and four black judges to the current bench, where the majority of the judges are black and two are white, the same has not been achieved in terms of gender, as the number of women on the Constitutional Court has remained unchanged: two in 1994 and two in 2014.

UCT’s Democratic Governance and Rights Unit makes the point that in the past four years the Judicial Service Commission has interviewed 262 candidates, yet only 82 of them were women. Of the successful 155 candidates appointed to the Bench during the same period, only 40 of them (25,8%) have been women.

Looking at JSC processes the DGRU found that since June 2012, in respect of the Constitutional Court, there have been two interview processes. Nine candidates were interviewed, of whom eight were men and one was a woman. Out of these two processes, two men were appointed.

At the level of the Supreme Court of Appeal, there have been three interview processes since June 2012. Fifteen candidates were interviewed. Of these candidates, there were 13 men and two women. Six men and one woman were appointed out of these processes.

At High Court level, which includes the Labour Appeal Court, Labour Courts, Electoral Courts and Land Claims Courts, the numbers are slightly more encouraging. There have been four interview processes. During these processes, 61 candidates were interviewed, of whom 32 were men and 29 were women. These processes led to the appointment of 17 men and 14 women judges.

And, as the unit rightly says, the blame cannot be laid at the door of the commission alone, as they work with what they are given. One important question has to be answered: Where are the women who would be eligible for appointment to the Bench.

The pool from which prospective judges are chosen consist mainly of attorneys, advocates and the magistracy. The attorneys seems to be faring better than the advocates when it comes to gender, with the magistracy showing the most progress in terms of gender equity.

According to the Law Society of South Africa there are currently some 22 400 attorneys practicing and 5 600 candidate attorneys. Amongst the 22 400 attorneys, 64 % are white and 36 % are black, 37% are female and of that 37%, 13% are black females. White males make up 40%, followed by white females at 24 % and black males at 23 %.

In the period 2008 to 2014, the number of women attorneys has grown by 3%, which more than the growth in the number of male attorneys, with white male attorneys dropping by 7% and black male attorneys showing 1% growth.

The candidate attorneys’ statistics look more promising. Of the 5643 candidate attorneys, 56% are female and 32% are black females. White males make up 17%, while Black males and white females make up 27% and 24% respectively.

An average of 1 590 attorneys have been admitted to the profession per year over the past ten years. Last year, 57% of these were women and half of those admitted were black. Generally, for the past four years, more women have been admitted to the profession than men, and the number of black attorneys that are admitted varies between 47% and 50%.

Figures for 1998 show that, sixteen years ago, 63% of attorneys admitted that year were male and 71% were white. So generally, over the past sixteen years there has been a 20% increase in female attorneys and a 21% increase in black attorneys admitted to the profession.

However, the advocates’ profession is still a matter of concern when it comes to gender. According to the statistics of the General Council of the Bar, only a quarter (645) of our country’s total 2571 advocates at the Bar are female. Of these only 4,5% (116) are African females. Of the silks, or senior counsel, only 27 are female, of which only 4 are African. That is less than 1% of our country’s 451 senior counsel. This is a concern, particularly since many of our judges come from the ranks of the advocates’ profession.

In a nation like ours with its history of racial prejudice and systematic segregation much needs to be done to undo the past. And our history is reflected in these statistics.

However, it seems that South Africa’s legal profession is by no means unique when it comes to the legal profession being predominantly “an old boys club.” The same picture is evident in, amongst others, Australia and Canada. A report released last year by a Canadian law society shows that half of all complaints against lawyers and articling students in the last 10 years related to gender. The report also reaffirmed that the law society in question needed to take more proactive action to ensure that women lawyers remain in the profession.

A survey by the Law Council of Australia found that when appearing in matters resulting from briefings by private law firms, appearances by male barristers were significantly higher. Since 1993 more than 50 per cent of Australian law graduates have been female, however, females account for less than 20 per cent of partners in law firms. Females account for only 6 per cent of silks at the Australian Bar. It was also found that female barristers do not progress in the same lineal manner in which their male counterparts do. The main reason provided for this outcome is discriminatory briefing practices by firms, which has an adverse effect on retention and progression of female barristers.

The Australian picture closely resembles our own. The report by the University of the Witwatersrand’s Centre for Applied Legal Studies and the Foundation for Human Rights, which Ms Sooka will be discussing in greater detail, states that the South African legal profession continues to face the challenge of meaningful transformation. The top positions in the profession, from senior partners of law firms, to senior counsel at the Bar and senior members of the judiciary, remain largely homogenous. These positions are dominated by white men, with a marked absence of diversity on the basis of race, gender and other marginalising characteristics.

South Africa's major corporate law firms are still dominated by white men, especially in the upper echelons; 80% of the chief executives of the 12 firms canvassed in the survey were white men, as were 72% of all managing partners. The picture at the CEO/managing partner level was replicated in the ownership and remuneration structures of the firms: 53% of all equity partners were also white and male.

But gender transformation is not only about figures, but also about the treatment and the attitude towards the individuals affected by the lack of gender transformation. The report highlights barriers for black women that have a knock-on effect and may explain why the judiciary remains dominated by white men. Among the findings, notes the report, is that some law firms use their black female attorneys to solicit work, in other words to attract clients, only to have them excluded from the team that then later does the work. “There are lawyers who continue to refer to black women as window dressing,” the report says.

But the picture is not overwhelmingly bleak, as we must acknowledge that much progress has been made, particularly in our magistracy and also in respect of briefing patterns. For example, the number of female magistrates have increased significantly from a total of 284 in 1998 to 667 currently. This means an increase of 134%. There were only 62 African female magistrates in 1998, today there are 285. This means an increase of 359%. Of the 285, 2 are Regional Court Presidents and nearly 50 are Regional Magistrates.

The other percentage changes in our magistracy since 1998 show that the number of Indian females have increased by 363%, Coloured females by 1120% and white females by 17%. For the first time in the history of the magistracy we now have more women than men at the level of Chief Magistrate. Of the 18 Chief Magistrates, 10 are female (six African females, two Indian females, one Coloured female and ne White female). Of the nine Regional Court Presidents, four are female.

No single role-player in the justice system can bring about gender transformation on its own. The legal profession must do its bit, as must the JSC. Academia should be putting forward more names of suitable and experienced women as potential candidates for the bench. And government has a significant role to play in this regard.

I am pleased to report that our department has put in place a number of initiatives to advance transformation. The State is the biggest consumer of legal services in South Africa, and its litigation account runs into billions of rands annually. However, it is evident that, when attorneys and advocates are briefed to act on behalf of the State, the cake is not shared equitably among the diverse constituencies of practitioners, with Black and female practitioners being the worst affected.

Therefore the State Attorney Amendment Act, which was passed recently, provides for the development of policy on briefing patterns and mediation. This is a fundamental development in our transformation trajectory in that, for the first time, there will be a transparent process which is developed through a public participation process. It is through this process that legal work will be allocated equitably among practitioners. This will help address long-standing concerns about the skewed allocation of briefs. We have, as a Department, taken bold steps to increase the allocation of briefs to competent previously disadvantaged individuals. Ms Onicca Phahlane, our Chief Litigation Officer, is present and will elaborate more on this issue.

It is also encouraging to note that of the briefs given to counsel by the State Attorney here in Cape Town, nearly half have gone to female practitioners. In the last financial year a total of 572 briefs were given to counsel, of those 272 briefs went to female advocates and 300 to males. Of the 272 briefs that went to female counsel, 94 were given to African females, 94 to Coloured females, 47 to Indian females and 37 to white females.

We are also engaging with various stakeholders to ensure that briefs are given as widely as possible, in other words, that it’s not the same people who are continuously briefed and that female and Black practitioners are exposed to many different types of work, so as to build expertise in a variety of areas.

When we met with Advocates for Transformation recently, we were informed that in certain instances female or Black practitioners would be briefed, but only to, for example, draft pleadings, but then another counsel would be briefed to continue the matter to trial. This then merely resorts to a numbers-game, used to up the number of PDIs being briefed, but it not adequate and meaningful transformation. This is something that we will be monitoring very closely.

We are also positive that the new Legal Practice Act, which was enacted recently, will go a long way in transforming the legal profession and removing barriers for practitioners.

But our biggest challenge lies in changing the mind-set and changing society’s views. Gender stereotyping and gender inequality are challenges which face our entire society, not only the legal profession. As Judge Cynthia Pretorius recently said at Unisa: “Are our young men being taught the values of the Constitution or are we perpetuating the patriarchal system which worked so well for men of all races?”

And as Pius Langa wrote in an article in 2007, when he said: “It is a call on us to remember that transformation never ends, that the call for an egalitarian society is a call which will not be satisfied upon the achievement of some statistical equality; it requires much more from us. It requires an ongoing commitment to transformation in substance, not only in form. This transformation will not be easy as it requires a change not only of numbers but of attitudes and perceptions of women. It will require dedication and commitment from all of us in the judiciary and particularly from the women who will be moving into the judiciary.”

Ladies and gentlemen,

We have a proud history of lawyers at the forefront of the struggle and the advancement of human rights. And of those, let me pay specific tribute to the many female lawyers, lawyers like Phyllis Naidoo who studied to become a lawyer while being banned and under house arrest and who was only allowed to practice once her banning period ended.

There is Cissy Gool and Desiree Finca, of whom I spoke earlier. And Victoria Mxenge, who was admitted as an attorney in 1981 and who defended many struggle activists in those very dark days of oppression and states of emergency. Because of the important work Victoria was doing, she became a target for the security forces and she was tragically murdered by apartheid agents in the driveway of her home in Umlazi in front of her children. Victoria Mxenge may no longer be here, but her selfless contribution to the law and to the quest for justice and human rights will live on.

May Nadel and its membership go from strength to strength and continue to be inspired by lawyers like Victoria Mxenge and others. Benjamin Franklin once said “without justice, courage is weak”.

I would rather say that “without courage, justice is weak,” we must have the courage to continuously recommit ourselves to the Constitutional imperative of transformation, but in the legal profession and society at large. There is still much to be done.

I thank you.

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