3 September 2007
opinion
Cape Town — Some time last year, the Minister of Justice and Constitutional Development, Brigitte Mabandla, whispered into my ear and that of my colleagues who constitute the heads of courts, that funding could be found for a project to train women so as to accelerate their appointment to judicial positions.
The idea was attractive and the leaders of the judiciary constituted a committee, together with other personalities outside the judiciary, to refine the idea and to work on the logistics.
Judge Ivor Schwartzman agreed to involve himself in the project as judge mentor. He had no precedent, he was going to sail uncharted waters.
The question remains, however: why was it necessary to have this special project? Transformation is the manner in which we break from the past and create the egalitarian society which is the vision of the constitution. This specific programme shares this vision as it intends to transform the judiciary to become more representative by training aspirant women judges.
In South Africa, the dispensation of justice has historically been a role filled only by white males. For many years women were legally prohibited from involvement in the legal profession.
Mahatma Gandhi was the first attorney to register a woman as an articled clerk but the Law Society rejected her application to register for her articles, as did the high court. In the famous case of Madeline Wookey, 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.
It was only in 1923 that legislation was enacted that allowed white women into the legal field. It was only in the 1970s that this invitation was extended to black women.
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.
In 1967, 44 years after the admission of the first white woman attorney, Desiree Finca from Umtata was admitted as the first black woman 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.
Even though women were allowed access to the legal profession, women continued to be subordinated by both African customary law and the Western legal system that emerged during the colonial and apartheid periods.
With the advent of the constitution, all these discriminatory laws have theoretically been abolished. This however did not undo the effect of these laws which have continually undermined the role that women can play in our society.
The number of women judges in this country is just a small example of how women continue to be treated unfairly, with no regard to their ability or intellectual capacity. In 1999, five years after democracy dawned, only 10 out of 186 judges were women. There has been a steady increase and in 2004 12% of the judiciary was filled by women.
Today only 37 judges are women. Equality and justice require more than the abolition of the wrong; they also require us to act positively to rectify the injustice.
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.
There is much inspiration for those women to find in the lives and works of women who have fought for change and justice in South Africa.
I would like to mention just a few of the women who have played a role in advancing women's role in the legal profession, in fighting the struggle against apartheid and promoting women's rights.
As early as the early 20th century Charlotte Maxeke led and founded a number of organisations dedicated to fighting against passes for women and improving labour conditions.
More recently, Phyllis Naidoo ran an important legal practice in the struggle but she did not begin her career as a lawyer. She was banned and put under house arrest for her involvement in the Natal Indian Congress. During this time she studied and qualified as an attorney but was not allowed to practise until her banning period ended.
After this she set up her own legal practice, which was particularly concerned with prisoners on death row. She was eventually forced into exile in Lesotho, where she was the chief counsel to the Lesotho government, and later to Zimbabwe, where she worked for MK.
Lillian Masediba Ngoyi led the women's anti-pass march to the Union Buildings in Pretoria, one of the largest demonstrations staged in South African history - on August 9 1956, the day that today we celebrate as Women's Day.
She was an accused in the Treason Trial and was regularly arrested, detained and banned for her actions in the struggle.
One of the great martyrs of the struggle, both men and women, was Victoria Mxenge. She was admitted as an attorney in 1981 and inherited the attorney's practice of her husband, Griffiths, who had been so cruelly butchered by the apartheid forces of darkness.
One would have thought that this loss would have cowed and intimidated her, but no, Victoria became very outspoken, with a heart chilling courage.
I well remember attending with her the unspeakable sites after the massacres of students at Ongoye. There was blood all over, under beds and on walls, but she insisted on looking and recording what she saw. But then the enemy's lust for blood was insatiable. She was waylaid as she arrived home one night and butchered in full view of her children. So ended the life of a great freedom fighter and lawyer.
There were others.
Dorothy Nyembe participated in the establishment of the ANC Women's League and was heavily involved in the ANC and MK throughout her life. In 1969 she was convicted of harbouring MK members and sentenced to 15 years' jail.
When she was released she immediately became involved in NOW, again fighting to improve the lives of those around her.
Florence Mkhize was heavily involved in many political organisations throughout her life, including the ANC, SACP and Sactu. She later led the Release Mandela Campaign in Natal and was among the founding members of the United Democratic Front in 1983.
Dulcie September was a teacher who gave her life in the struggle. She began her opposition to apartheid fighting Bantu Education and was imprisoned for her actions.
She later joined the ANC, where she became one of their chief representatives in Europe. It was in this post that she was killed by a professional hitman.
These women heroines are not present with us today. They are our elders, and paved the way.
It is appropriate that we as South Africa's judiciary should give expression to our admiration for those who have brought about these advances. All these women give us inspiration and a model on how to challenge and change society.
Chief Justice Langa is the president of the Constitutional Court.
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