The period 1910 to 1920 marked the institutionalisation of the racial order flowing from the Act of Union. This entailed the fundamental transformation of all aspects of society, reflective of the prejudices of the influential leaders of the day: Smuts, Hertzog and Botha.
While they had their disagreements about the future of South Africa, their opinion on the native question was clear: South Africa belonged to the white man.
A key institution that legitimated the racial political order was the judiciary. Judgments delivered by the superior courts of the time reveal the consolidation of the racial political order by the judicial system. Some judgments were nothing other than mere reflections of the prevalent political attitudes.
Though some statutes did not contain explicit racial language, their interpretation by judges produced segregation that accorded with the implicit intentions. One example is Moller v. Keimos School Committee,which concerned racial segregation in state schools. White parents objected to their children attending the same school as black children. No statute sanctioned racial separation in public schools. But Chief Justice Henry De Villiers, who in 1908 had chaired the whites-only South African National Convention which negotiated the Act of Union, considered race to be a relevant consideration in judicial interpretation, holding that ‘pre-possessions’ or ‘prejudices’ of a community are a relevant consideration in judicial determination.
Hence, given the prevailing attitudes of the community, white parents could not have been consenting parties ‘to an Act by which European parents could be compelled to send their children to a school which children of mixed origin could also be compelled to attend’. Hence, from that moment, and without any compelling legislation, state schools would be segregated.
Racial discrimination was extended with the support of the judiciary to other aspects of life also. In Williams and Adendorff v. Johannesburg Municipality the legal issue was whether the law allowed racial segregation in the use of tramcars.
One of the judges, Judge Leonard Syer Bristowe, was of the opinion that, bearing in mind the ‘feelings and sensitiveness, even the prejudices and foibles of the general body of reasonable citizens’, the law should be interpreted to allow racial segregation in the use of tramcars. Another member of the court, Judge John Stephen Curlewis, who would later become Chief Justice, supported the approach, noting that the use by natives of the ordinary tramcars ‘would be so distasteful and revolting to the rest of the community that the council as a common carrier would be justified in refusing to carry them as passengers in the same cars as Europeans’.
When racial segregation regarding the use of counters at post offices came up for judicial determination in Minister of Posts and Telegraphs v. Rasool, Chief Justice James Stratford held that the race of the person likely to use postal services was relevant. He concluded that the division of the community on the grounds of race or language was prima facie ‘sensible’ as it would result in the convenience and comfort of the public as a whole. He justified this conclusion by holding that officials should be conversant with the ‘customs requirements and language of each section’ of the public that they would likely serve.
Race aside, this period also saw the entry of women into the legal profession impeded by stereotypes in the judiciary. The most notorious such case is Incorporated Law Society v. Wookey. Madeline Una Wookey, a white woman from the Cape, applied under section 20 of the Cape Charter of Justice for registration as an articled clerk to qualify as an attorney.
Although a law firm was willing to take her on, the secretary of the Cape Incorporated Law Society refused to register the articles. Litigation ensued, and in the court of first instance, the Law Society was ordered to register the articles. In its appeal, debate centred around the meaning of the term ‘persons’ employed in section 20 of the Cape Charter of Justice, which provided that any person suitably qualified could apply for admission as an attorney. Did the term ‘person’ include women?
An earlier ruling by the Transvaal Supreme Court, Schlesin v. Law Society, had decided against the admission of women to practise as solicitors on the grounds of the ‘long practise which has prevailed not only in this country, but in Holland and in England too, not to admit women to be solicitors’. In refusing the admission, Judge Bristowe held that if an ‘innovation’ was to be made, the correct place would be the legislature, not the judiciary. Schlesin’s application for enrolment as an attorney was thus declined.
While judges had been willing to admit black attorneys, they would however refuse to do the same for women.
In Wookey, the full bench of the Cape Supreme Court, led by Chief Justice Rose Innes, refused Wookey’s application for registration of her articles of clerkship, holding that the term ‘person’ excluded women. The law had to be interpreted in a manner consistent with the practice in England and Holland, where the court’s view was that women were not allowed to practise law.
Such views were prevalent in the legal profession too. In 1914, the South African Law Journal published an article titled ‘Women as Advocates and Attorneys’ written by RPB Davis, who would later be appointed judge of the Supreme Court in the Cape. Davis referred to an American court decision which found that women were temperamentally unsuitable for the legal profession: ‘nature has tempered women as little for the juristical conflicts in the courtroom as for the physical conflicts of the battlefield.’
Davis concluded that women should not ‘mix professionally in all the nastiness of the world which finds its way into courts of justice; on the unclean issues, all the collateral questions of sodomy, incest, rape’. Deepening the negative stereotype, M De Villiers argued that women were ‘conspicuously unfitted’ for the law because they ‘have no idea of relevance, or analogy, or evidence.’
Clearly, racism and sexism filtered into the courtroom, which in turn reinforced negative stereotypes. In relation to the status of women as legal practitioners, change would emanate not from the judiciary, but from the legislature.
On 26 March 1923, South Africa passed the Women Legal Practitioners Act 7 of 1923. In section 1, the statute proclaimed that ‘women shall be entitled to be admitted to practise and to be enrolled as advocates, attorneys, notaries, public or conveyancers … subject to the same terms and conditions as apply to men.’
Three years later, Constance Mary Hall became the first woman to be admitted as an attorney in South Africa, and Gladys Steyn became the first female advocate to be admitted to the Bar. The position of black women, however, remained unchanged. While there was no statutory bar to their admission as attorneys or advocates, it was only in 1962 that Zainunnisa Gool was admitted as an advocate at the Cape Bar.
Gool was the daughter of Dr Abdullah Abdurahman, champion of coloured people’s rights in the Cape. Having been admitted late in life, at the age of 64, Gool died the following year after only a few months of practise. Three years later, in 1967, Desiree Finca of Mthatha became the first African female to be admitted as an attorney after serving her articles under Godfrey Pitje, one of the few black attorneys practising in Johannesburg at the time.
The Land Is Ours: South Africa’s First Black Lawyers and the Birth of the Constitution by Tembeka Ngcukaitobi