Women at the coalface of the legal profession – academia, paralegal and legal practice, judiciary and the prosecution – will tell you that women in the legal profession have for years struggled against anti-women attitudes among legal practitioners in both the courts and law firms, and with adapting the workplace to address both macro and microaggressions against women legal practitioners here and abroad.

Senior women legal professionals in South Africa have even written to  President Cyril Ramaphosa and Justice Minister Ronald Lamola to express discontent with the fact that they are not respected. They complained about the State briefing only their male counterparts to “assist the National Prosecuting Authority (NPA) with its State Capture prosecutions”. These contestations must be understood broadly from the challenges women legal professionals are faced with daily, in particular the scourge of gender-based discrimination (GBD) and gender-based violence (GBV) in the legal profession. 

Harassment and carpet interviews rife in the legal profession

Allegations of harassment in a complaint lodged by Cape Deputy Judge President Patricia Goliath against her line manager, Western Cape Judge President John Hlophe, and a subsequent complaint by Hlophe against Goliath, read like a thriller movie. Chief Justice Mogoeng Mogoeng seems dismayed at the allegations that Hlophe called Goliath “rubbish and a piece of shit” in one of their altercations.

“To have it established that someone who occupies the exalted office of the Judge President said to a woman DJP that she is ‘rubbish’ and ‘a piece of shit’, in an era when women abuse even at the workplace is reportedly on the rise, is likely to result in a finding that the JP is guilty of gross misconduct, unless lip service is being paid to fight against women abuse,” said the Chief Justice. Mogoeng has motivated for Hlophe to face a misconduct tribunal as he has a case to answer. 

Delving deeper into the Goliath vs Hlophe issue is for another day. For now, we can only say that these and similar allegations are just the tip of the iceberg of the plight of women in the South African legal profession.

Consider, for example, some complaints lodged by the Democratic Governance and Rights Unit (DGRU) and Sonke Gender Justice (Sonke) with the Commission for Gender Equality dated October 2012 [Discussion Document on Gender Transformation in the Judiciary and Legal Sector, (GG No.71666, 13 July 2018)] which locates a slow pace in gender transformation within the legal fraternity.

To date, gender inequality and harassment in the legal profession persists. Women legal professionals face both GBD and GBV. GBV manifests in various ways, including the so-called “carpet interviews”, a veil for a horrific practice called “sex-for-jobs” which has become a norm, especially against recent graduates trying to secure positions in the legal profession. 

It is alarming that women are coerced into exchanging sexual favours for opportunities which they have worked hard to qualify for. This constitutes sexual harassment, a grave concern as it comes at the hands of legal professionals who are entrusted with finding solutions for gender inequality, sexual harassment within the workplace, and other gender-based grievances.

Studies show that the majority of GBD and GBV cases are not reported by the victims due to the culture of tolerance of such behaviour within law firms. This is not comforting given the number of law graduates produced by the 23 law faculties in South Africa, and the over-saturated market for legal positions. It can only translate into “carpet interviews” going unreported. 

So prevalent is the harassment of women legal professionals, it would seem, that a suggestion has been made for establishing a hotline: “The legal profession needs a helpline where sexual harassment can be reported,” according to a report by Kgomotso Ramotsho in the attorney’s journal, De Rebus. This was followed by a women’s talk session under the theme, “#TIMESUP – Sexual Harassment in the Legal Profession: It’s Time for Change,” on 3 August 2019, under the auspices of the National Association of Democratic Lawyers (Nadel).

The deliberations revealed that female legal practitioners were sexually harassed by their male principals. Also, that they suffer workplace bullying by their female principals. More disturbing was the claim of the so-called “carpet interviews” trend, in terms of which young female legal practitioners were required to sleep with their senior male legal practitioners or law firm directors to get a job.

There are cases where female candidates are excluded from employment due to pregnancies, and of female candidates often being asked personal questions during interviews as to whether they have family responsibilities (such as being married or having children) on the grounds that nothing is supposed to disrupt one’s articles of clerkship.

Studies show that the majority of GBD and GBV cases are not reported by the victims due to the culture of tolerance of such behaviour within law firms. This is not comforting given the number of law graduates produced by the 23 law faculties in South Africa, and the over-saturated market for legal positions. It can only translate into “carpet interviews” going unreported. 

For example, the 2017/2018 statistics released by the Law Society of South Africa shows that first time, first-year registration totals of LLB degrees in 2018 across all faculties (excluding information from Rhodes University Faculty of Law) stood at 7,239. Of this total, 5,816 were black African, 470 coloured, 306 Asian, and 647 white. 

In terms of gender, there were 3,758 female first-time entrants in the LLB degree and 3,525 males. This is a large number for the profession to absorb, should they all graduate at the end of 2021. Already, the number of LLB graduates in 2017 was 5,185. Consider these numbers with statistics received from individual provincial law societies with regard to practising lawyers. In 2018 the legal profession had 26,120 practising attorneys. This is an exponential increase compared to the 18,086 in 2008.

The domination of males, which is said to be at the heart of GBD and GBV against females, was apparent according to the 2018 statistical information. The ratio of male:female legal practitioners remains skewed in favour of a man in the Cape (4,107 : 2,622), the Free State (690 : 341), the northern provinces (9,142 : 5,907) and KwaZulu-Natal (1,869 : 1,439). 

Articles registered per gender between 2017-2018 were made up of 1,670 females and 1,193 males. Permanent judges as at 30 April 2018 across all the courts stood at 249. Of these, females numbered 36.14% compared to 63.86% males. The numbers of magistrates per gender as at 30 April 2018 were also interesting. Males accounted for 56% and females, 44%.

Women legal professionals taking the bull by its horns

On 1 July 2020, an open letter sent to the Attorney-General and Chief Justice of the High Court of Australia, by women legal professionals from across Australia, sought changes “to the way judges are disciplined and appointed”. The trigger for this letter was an independent investigation finding that High Court Judge Dyson Heydon, one of Australia’s preeminent legal minds, had sexually harassed six young female associates of the court. As reported by The Sydney Morning Herald, allegations also surfaced from senior legal figures that Heydon was a sex pest who was in the habit of sexually assaulting women.

The letter, parts of which are cited below and discussed in the context of South Africa, should, in our view, be sent to every Chief Justice around the world as part of a frontal attack against GBD and GBV in the judiciary and the legal profession. 

That such a resolute stand against the suppression of women in the legal profession has been taken by so many women is an unprecedented move in the legal profession globally. About 500 women, across the length and breadth of Australia, signed the open letter – legal eagles in their own right and some highly decorated for their distinguished service in the legal profession as law lecturers and professors, attorneys and advocates, and former judges (including The Hon Catherine Branson AC QC, a former judge of the Federal Court of Australia (1994-2008) and former President of the Australian Human Rights Commission (2008-2012), Julia Bravis).

The letter began by applauding the strong response of the Chief Justice, and supporting “recommendations about providing better protections to associates during their time employed at the Court, recognising their particularly vulnerable professional position”. Relevant to the South African position is the following paragraph in the letter:

“We believe the abuse the allegations raise provides an important opportunity to implement wider reforms to address the high incidence of sexual harassment, assault and misconduct in the legal profession. Deep cultural shifts in how men treat women in the law are required, as well as reforms to prevent the manifestations of what many fear may be institutionalised sexism that has allowed this culture to continue. 

“We must reach a position where all people, regardless of their sex, sexual orientation, gender identity, intersex status, age, race, ethnicity, or disability are treated with equal professional dignity. Of course, no single reform can achieve these shifts, and we understand many different forms of change must be pursued.”

In the main, the women legal professionals asked for two important judicial institution reforms, namely: (1) “the establishment of an independent complaints body and (2) the introduction of a transparent appointments process.” An important point in the letter is that women legal professionals must be involved in the crafting and implementation of these reforms.

“An oversight institution such as this must be carefully designed so as to meet expectations of accountability for judicial misconduct, while protecting judges from unfounded allegations and not placing the judiciary in a subordinate position to any other branch of government,” read the letter. 

With regard to GBV, the letter requested that any standard to be established must “specify that workplace harassment and bullying, including sexual harassment, constitute judicial misconduct”.

It is scandalous for a jurisdiction such as Australia that these issues are not mentioned as constituting misconduct in the existing guides. As we stated earlier in this opinion, many of the violations against women legal professionals are not reported, and sometimes those who do report them are victimised. 

Australian women legal professionals have taken note of that and requested that the oversight body to be established “must adopt a robust, fair and transparent process”, have the appropriate investigative powers and be able to “protect the privacy of complainants and provide them with guarantees against recrimination, including defamation proceedings”.

The letter by the Australian women lawyers must be seen as catalytic to addressing the plight of women legal professionals in South Africa. 

“Almost half of the female legal professionals in South Africa say they have been sexually harassed – and 73% have been bullied,” states a report by Phillip De Wet in Business Insider SA on 15 May 2019. 

This observation was made by the International Bar Association (IBA), in the report titled, “Us Too? Bullying and Sexual Harassment in the Legal Profession”. The report surveyed 7,000 legal professionals from across 135 countries. A total of 126 South African legal professionals completed the survey, with the majority of respondents being women. Sadly, the responses revealed that sexual harassment and bullying is common in South African legal workplaces and are above global averages – “73% of South African female respondents had been bullied” and “43% of women reported being sexually harassed,” said the IBA report [p.93-94].

Is law becoming a shameful profession? 

We would like to conclude by posing a direct question to the Southern African Law Deans Association (SALDA), (of which, as Executive Dean of the University of Limpopo Faculty of Management and Law, Omphemetse Sibanda is a member), the Southern African Law Teachers Association (SALTA), South African Legal Practice Council (SALPC), four provincial law societies, the Judicial Services Commission – particularly its Judicial Conduct Committee (JCC) – the South African Human Rights Commission, the Department of Justice and Constitutional Development, the Commission for Gender Equality, the National Prosecution Authority (NPA), and others.

The question is borrowed from the IBA’s reflection on its 130-page Us Too? report: “A year on, is progress being made? What are legal workplaces, regulators and representative bodies doing to improve professional culture and better respond to misconduct? What needs to be done? And what does Covid-19 mean for efforts to promote diversity and inclusion within the profession?”

It is time to decisively eradicate GBD and GBV in the profession. It is rightly said by IBA president Horacio Bernardes Neto that: “It is deeply shameful that our profession, predicated on the highest ethical standards, is rife with such negative workplace behaviours. Bar associations, law societies and law firms must lead by example and expose unacceptable behaviour. The IBA is working to ensure that eradicating bullying and sexual harassment is prioritised. We must work for positive change.”

As noted by Mark Ellis, IBA executive director: “These types of behaviours are insidious and must be confronted. The legal profession has been called upon regularly to advise other industries on bullying and sexual harassment. However, our ability to drive broader change is undermined if our own house is not in order…”’

There must be some honourable men in the legal profession who see the indignity and inhumanity women legal professionals face. If not, we implore South African women professionals, as a collective, to take the fight against GBD and GBV in the profession directly to the men. DM