For The People

Since Finca

Observations on Gender Transformation in the Legal Fraternity

“The revolution and women’s liberation go together. We do not talk of women’s emancipation as an act of charity or out of a surge of human compassion. It is a basic necessity for the revolution to triumph. Women hold up the other half of the sky’’ – Thomas Sankara

The first South African firm of attorneys to be run and owned by black attorneys was that of none other than what is arguably the most prominent ANC former presidents and anti-apartheid activists; Mandela and Tambo Attorneys in 1952 which was located at what is known as Chancellor House in Johannesburg.

In 1959, and year after successfully completing his contract of articles at the firm of attorneys; Mandela and Tambo; Godfrey Mokgonane Pitjie opened his own law firm and appointed what would later become the first black female attorney in South Africa and partner in the firm. Not surprisingly, little is known or documented about Desiree Finca, save for the fact that she was a domestic worker from the Eastern Cape. This fact serves as a point of departure and essence of this paper.

Needless to say, the prevailing socio-political conditions which were obtained in South Africa during the era of Desiree Finca and her contemporaries, was characterized by the draconian manifestations of the Apartheid regime and its patriarchal and racist underpinnings. I would go further and contend that, unlike apartheid which was legislated between the years 1948-1994, patriarchy on the other has existed unmitigated and in almost every aspect of our daily lives for centuries. It is from that backdrop that we must diagnose the challenges that confront gender transformation.
It must further be understood that, patriarchy is not a problem experienced by woman, but instead it’s an ideology that is imposed, accepted and/or perpetuated by both women and men. Therefore, it will require an appreciation and willingness to change our behavior for the sake of humanity and not any particular gender bias.

More often than not, when we measure the gains of gender transformation, we inadvertently position males as the benchmark to which women must ascend. As such, the assessment is limited to quantitative research that is incapable of delineating the practical and psychological implications of patriarchy in the legal fraternity.
Over the past 60 years since her admission, a number of significant developments have occurred, including the advent of the Constitutional Democracy and a fully guaranteed bill of rights which include inter alia the right to equality. Notwithstanding these important pieces of Legislation which sought to bring about an equilibrium amongst the sexes, the reality is that they have not managed to achieve the desired results.

Earlier this year the Department of Trade and Industries released a discussion document on gender transformation in the Judiciary and the legal sector. The discussion document was borne out of the complaint lodged with the Commission for Gender Equality by the Democratic Governance and Rights Unit and the Sonke Gender Justice regarding the slow pace of gender transformation in the judiciary. The discussion document made the following observations in respect of practicing female attorneys:

1. The widespread discriminatory perceptions of women’s competencies as legal practitioners being substantially weaker than their male counter parts;
2. There is a general perception that female lawyers are only good in certain areas of law and are not good in complex litigation matters;
3. The general perception leads to female lawyers not getting the experience and exposure in lucrative areas of law, both from the private and public sector;
4. The rigidity of the profession wherein excessive work hours are expected which are not considerate of the different roles that female lawyers should fulfill at various stages of their lives, for example, motherhood is perceived as being career limiting;
5. Issues of sexual harassment in the workplace of junior female legal practitioners and candidate attorneys are not being dealt with openly and transparently and there is a fear of victimization for those who report incidents of sexual harassment.

Certainly there is no scientific proof that female lawyers are less competent than their male counterparts, and again it is this flawed and patriarchal myth that perpetuates the marginalization of female lawyers. The lack of experience by female lawyers in certain complex legal cases can directly be attributed to the fact that males dominate law firms and as such dominate the distribution of work, the monopoly of mentorship and have deliberately denied women the opportunity to develop themselves like their male counterparts over many years.

In as far as the issues relating to working hours are concerned, we have clearly defined labour laws in South Africa, and the discrimination against female employees on the basis of their reproductive capacities and choices is unconstitutional and constitute unfair labour practices.

The most disconcerting of all is the fact that government is the biggest consumer of legal services, however its own statistics reveal that it has disproportionately distributed legal work to males.

Kimberley is a microcosm of the realities that prevail throughout the country.
To give context to this assertion and if only to demonstrate the death of transformation in Kimberley; Of the approximately 40 law firms located within Kimberley; only 2 are owned by black females. Further to that, the cape bar of advocates only has one lack female advocated.

Certainly this illustrates the amount of work which must still be done to promote gender transformation at least within the orders of the city.

The most sectile approach would be to start from the grassroots level; within our high schools by organizing moot court competitions and debating competitions. The funding of students that would like to peruse legal studies, incentivizing those students to return to Kimberley to practice and ultimately open their own practices within the city.

The legal fraternity in Kimberley must also do more to promote the training of young and aspiring legal practitioners and as a community we need to ensure that we make a deliberate effort to not discriminate against black and/or female owned law firms.

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