Image: Freepik Whilst there has been a steady increase in the number of female legal practitioners and improvements have been made to ensure female representation in the profession, more is needed. To address this need, there should be an emphasis on the development of women to attract complex work and to service large institutional clients. The views of female legal practitioners should be taken into consideration in all matters, but more specifically, those with which they can relate.
The transformation of the legal profession has been a contentious issue in South Africa. Judge Motha raised the issue, in respect of the briefing of counsel, in the judgment of Peri Formwork Scaffolding Engineering (Pty) Ltd v Broad-Based Black Economic Empowerment Commissioner and Others. Motha J requested the parties to deliver submissions wherein they addressed the question of why there was not a single African counsel representing any of the seven litigants in a matter concerning an alleged fronting practice and conducts that purportedly undermine the objectives of the B-BBEE Act.
In expressing his concerns, Motha J asserted that he chose not to shut his eyes to ‘this patent and palpable iniquity to the great expense of the court”. When explaining his concerns, Motha J recorded that:
- This conduct is inconsistent with the objectives of the B-BBEE Act which are, amongst others to advance economic transformation and enhance the economic participation of black people in the South African economy. Further, the parties’ conduct impairs the spirit, purport and objects of the Bill of Rights, and makes a mockery of the preamble of the Constitution.
- It is in the interest of justice for a presiding judge in a B-BBEE matter involving the State or organs of the State to insist on the involvement of at least one African counsel. This would assist a court in arriving at a just decision. The perspective of an African counsel would address the nuances involved in cases of black people’s struggle for empowerment, as opposed to the monochromatic submissions that he was provided with in this case.
- The same is true for an all-male team making submissions on a gender equity matter in the absence of a female counsel’s submissions, where the State or an organ of the State is involved.
Motha J held that the position he adopted in this matter was in line with section 173 of the Constitution which grants superior courts the powers to regulate their process, taking into account the interests of justice. This power enables the courts to lay down processes to be followed in a particular case, even if that process deviates from what its rules prescribe. The Judge further recorded that he was not dictating who the State must have on brief. However, in pursuit of justice, our courts do sometimes insist on the presence of specific legal representatives.
Motha J expressed his displeasure with the parties’ conduct by not awarding costs in favour of either party and instead, the parties were ordered to pay their own costs.
The Judiciary Annual Report for 2022/2023 records that the judiciary consists of 113 females which equates to 46% of judges. Whilst this is encouraging, a concern remains that 45% of female law students in Africa elect not to pursue legal practice.
There also appears to be a significant dominance of male legal practitioners in complex commercial matters. This suggests that we are not at the place yet where we can confidently assert that there are equal opportunities for female and male legal practitioners.
For this to be remedied, meaningful change must be effected. In addressing the issue of meaningful change in the profession, Dr Tamlynne Meyer, in her PhD thesis, said:
“We will have to engage with subjective experiences of female lawyers, gender, racial and class regimes, how they interact with professional cultures and practices, and the societal perceptions and expectations placed on different groups. We also need to engage innovatively and address the perceptions and attitudes of legal practitioners, management, clients and women themselves, as they are central in fostering the transformation project of the profession.”
Engagements of this nature will address the reasons why female legal practitioners do not feel welcomed and do not remain in the legal profession. The legal profession should be implored to have ongoing discussions addressing these issues. Doing so will result in a culture shift, which is necessary for the true transformation that the profession, and female legal practitioners, desperately require. DM