Gender, race and the law

Even the most disinterested observer would have picked up that the South African legal fraternity has been through trying times in the past few months.

While women lawyers have used the year to reassert their place in the profession — launching the South African Women Lawyers’ Association in October — black and white lawyers have been at one another’s throats.

Andiswa Ndoni, who describes herself as a ‘social activist”, is the first woman to be elected president of the Black Lawyers’ Association (BLA).

Inevitably, at the top of her in-tray since her election, are questions of gender and race in her profession. Though racial politics have dominated the legal scene from the days when black people were not allowed membership of the various Bar associations, these days the conflicts are most sharply captured in the fallout over Cape Judge President John Hlophe.

Almost every lawyers’ association has pronounced itself on the matter. Those that are predominantly black, such as the BLA or the Advocates for Transformation, back him or are opposed to the cries for his impeachment from the traditionally white outfits such as the Johannesburg and Cape Town Bars.

For Ndoni, Hlophe is a victim of those who would rather wish racism away than talk about it.

‘Judge Hlophe is the first judge to break the silence about racism in the judiciary. He is a victim of speaking out against racism. One cannot divorce the attempts to impeach him from the remarks he made about racism in the judiciary,” says Ndoni.

‘If it is left it to some people, we would stop talking about racism. To them, anybody who talks about race is declared persona non grata.”

But, she concedes, Hlophe made an ‘error of judgement”. This, however, is not enough to strip him of his robes.

Should the BLA have been more vocal about this error of judgement?

‘Why would we want to kick a man when he is already down? Those of us who interact with him know that it [the error] is not something he feels proud of,” says Ndoni.

It is not blind, race-based loyalty that makes Ndoni support Hlophe. ‘Hlophe is one of the most brilliant and capable judges in the country. He has contributed a lot to the promotion of jurisprudence. One just needs to go to the law reports and read the cases he has decided and see the reasoning there.”

Another reason the BLA will not ‘kick Hlophe when he is down” is because the Judicial Service Commission (JSC) has deliberated and ruled on the matter, finding no basis to impeach him.

‘If we as legal practitioners cannot respect constitutionally established institutions such as the JSC, but expect the people on the street to do so, then we are paying lip service to our respect for the institutions.”

One thing she is not paying lip service to is her dedication to the continued legal education of black lawyers — she established a law school in East London before settling in Johannesburg. She also spent five years as head of the BLA’s legal education desk.

It is no wonder Ndoni is bothered by the fact that her status as a woman seems more important than her leadership of the lawyers’ association.

Does this mean black lawyers have been preoccupied with issues of colour at the expense of gender?

‘I was not chosen to lead the BLA because I am a woman. I was approached two years ago and I declined. Women must sacrifice whatever it is that is holding them back and make themselves available.”

The BLA, she points out, guarantees at least three national leadership positions to women. She hopes this will be a short-term intervention. ‘I hope we will get to a stage where women do not need guarantees to be in the leadership of the organisation. Only one of the seven leaders of the Gauteng branch is a man.”

The gender politics might have been easier to sort out, but Ndoni’s greatest challenge will be the race divisions rocking the judiciary and how they are sorted out.