What was it like to be a woman in the early days of the constitutional court? Kate O’Regan on raising the bar

It was not an auspicious start. At the end of my first job interview, after I had graduated with my LLB, the senior lawyer at the distinguished Johannesburg firm of attorneys told me: “Well, the truth is we don’t like women at this firm.” And that was that. I did get a job as an articled clerk at another large Johannesburg firm where it was noticeable that in every intake of clerks (and this was in the early 1980s) there was a good sprinkling of blacks and women. In fact, at that firm I met one of my future colleagues on the bench, Justice Sisi Khampepe. If you had told the two of us then that we would serve as judges of the Constitutional Court in a democratic South Africa we would have roared with laughter.

It was there that I had one of the first of the strokes of extraordinary good fortune that have blessed my career. Shortly after I began my articles a highly respected attorney, who was committed to acting for trade unions and other anti-apartheid organisations, rejoined the firm and so I found a mentor. Perhaps there is no more important moment in any young professional’s life than finding an experienced professional whom you respect to teach you the ropes. A good mentor is a rare thing and young professionals should seek them out.

The start of women in the profession generally was also not auspicious. Until 1923 women were excluded from the profession by law. That exclusion resulted from a 1912 Appellate Division decision, Incorporated Law Society v Wookey, in which the court held that Madeline Wookey, who had applied to the Law Society in Cape Town for admission as an attorney, could not be admitted.

A distinguished bench of the Appellate Division (ACJ Innes, J Solomon and JP De Villiers) held that the legislature had not intended to include women when it said that “persons” could be admitted to the profession. After his review of the classes of persons who had been excluded by the rules of Roman law and the Roman Dutch law from practising as lawyers, JP De Villiers held that:

“Some of these restrictions are undoubtedly obsolete. It would be difficult to maintain that a blind person duly qualified in other respects cannot be admitted as an attorney on the ground that he cannot see and therefore cannot pay proper respect to the magistrate. The prohibitions, too, based on race or religion, are notoriously obsolete. Can the same be said of the prohibition based on sex? I am of the opinion the answer is in the negative. No doubt many of the disabilities under which women have laboured in the past have been abolished…But we cannot ignore the fact that from the time that Carfania vexed the soul of some too nervous praetor with her pleading down to our own day, the profession of an attorney has been exercised exclusively by men; and this applies not only to Holland, but also to England.”

The Appellate Division was by no means alone in this conclusion. Courts throughout the Anglo-American world reached similar conclusions.

Wookey’s case gave rise to considerable discussion in the pages of the South African Law Journal. One contribution by RPB Davis (who was acting judge of appeal for several years) cited a judgment in an American case concerned with the admission of women, in which the judge, CJ Ryan, had propounded as follows:

“We cannot but think that the common law is wise in excluding women from the profession of the law. The profession enters largely into the wellbeing of society; and to be honourably filled and safely to society exacts the devotion of life. The law of nature destines and qualifies the female sex for the bearing and nurture of the children of our race and for the custody of the world, and their maintenance in love and honour. And all lifelong callings of women, inconsistent with these radical and sacred duties of their sex, as is the profession of law, are departures from the order of nature; and when voluntary, treason against it. … it is public policy … not to tempt women from the proper duties of their sex by opening to them duties peculiar to ours.”

One should not laugh too quickly at CJ Ryan’s reasoning. The challenge of the double shift remains a real one for women in the profession. In the large firms and at the Bar, successful lawyers expect to work more than 10 hours a day: a burden that is not easily compatible with child-rearing responsibilities. A second obstacle for women in the profession is one I encountered not long before I was appointed to the Constitutional Court. A respected member of the Cape Bench, who had come to the University of Cape Town to judge a moot I had organised, told me that women simply do not make good advocates as they lack “the killer instinct”. This view was expressed not in 1912 but in 1993. Leaving aside the questionable statement that a “killer instinct” is a necessary item in a lawyer’s toolkit, what this statement discloses is the view that women cannot excel in the law. Not surprisingly, I think this view is mistaken, but it is probably not rare. And without a doubt it makes it hard for women to succeed at the Bar, in particular. Although women are now beginning to make strides, the number of women silks remains tiny and this is probably at least in part because there are still many lawyers who think that women are not as good as men.

Yet despite the initial difficulty in my career I have been extraordinarily fortunate. I was, of course, one of the very first affirmative action appointments to the Bench. If it had not been for the Constitution’s insistence on the relevance of race and gender to judicial appointments, I should never have been a judge. Indeed, I am not quite sure now how I let myself be nominated for the position in the first place. But 1994 was an extraordinary year and what would, I imagine, at any other time have seemed an utterly ridiculous suggestion did not seem quite as ridiculous then. I do recall being persuaded by the proposition that if no women were willing to let their names go forward, no female judge would ever be appointed.

It was strange to join a court as a judge of equal status with lawyers whom I considered to be my role models and very much my seniors. From the start I had to quell the natural urge to remain silent and keep contrary views to myself, given the august company I had joined. (Some of my colleagues might say that I did not seem to find quelling that urge very difficult!) What I found then, and have found ever since, is the surprising egalitarianism of reasoned and principled debate about law on a collegial court. Structurally speaking, a collegiate bench is a bench of equals. Every judge’s vote counts the same. It is only the power of argument and persuasion that can make one’s colleagues agree.

That does not mean that I did not encounter the challenges of the double shift. When I was appointed to the court my children were aged five and three. Their school years tracked my 15 years at the court almost exactly. So the double shift was a real issue for me. But in meeting its challenge I was fortunate in three ways. The first was that I was the child of a working mother, who I knew had been a wonderful mother. When I was at school I was one of the very few who had a mother who worked fulltime. Although that meant she was often not able to do things other mothers did, I did not feel distressed, partly because my close friends’ mothers were there to help out with lifts and afternoons. I am still grateful to them.

The second was that I have always had a supportive team of people around me. My husband, Alec, who managed with grace and good humour the deep contradiction of being a junior member of the Bar while his wife was suddenly catapulted to the Constitutional Court; my own family and Alec’s family, all of whom helped out often when things were difficult; friends and the parents of my children’s friends, who also did. And, of course, the women who worked for me both at the court and at home were mainstays of my managing of the double shift. I think this is probably true for most women: we are not on our own managing life’s demands; we are surrounded by a community of people who help.

And the third was that my colleagues on the court were understanding of the challenge of the double shift. In meeting this challenge it was a great blessing not to be the only woman on the court and to have colleagues such as Yvonne Mokgoro and Bess Nkabinde. Yvonne and I were not the only parents of young children on the court in my early years. Johann Kriegler also had a school-age daughter. Moreover, many of my colleagues had grandchildren. As a result, my colleagues were willing to eschew Saturday-morning meetings and to recognise that sometimes I needed to slip off to do a school lift or take a child to the doctor. I was very fortunate to have colleagues who were so understanding of the importance of my mothering role.

I am conscious that in at least two ways I skipped the hard yards. It is a lot easier to be a member of a senior appellate court, whose equal status is determined by law, than to fight for your status every step of the road. I have watched many outstanding women withdraw from the profession because they have not had the strokes of luck I had, or because they have found the battles too hard, or because their desire to spend more time at home and with children was too strong.

I am also conscious of the special advantages that my experience as a white English-speaking middle-class woman from a professional background gave me. Books and debate were part of our daily lives. It was expected that I would go to university and pursue a career, just like my brothers. There were no apartheid barriers in my path. The apartheid barriers erected against black women were high and wide. And their aftermath is with us still.

As my career has progressed it has been a delight to see the careers of other women in the law also progress. Women are still under- represented in the profession and on the Bench, but increasingly they are making a valuable contribution. Perhaps we are at last overcoming the inauspicious start.

Having had the advantage of working closely with a very diverse group of people at the Constitutional Court, I have learnt that we must always remind ourselves that our identity is complex and is not constituted by one characteristic, such as our gender. Gender is important in constituting identity, but so are language, culture, ethnic background, race, religion, sexual orientation, parental status, age and many other qualities. As the Nobel prize-winning economist Amartya Sen has observed, we must be careful not to limit our identity to one characteristic only. For if we do, we shall diminish ourselves, and be at risk of diminishing everyone else as well.

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BIOGRAPHY
Kate O’Regan served as a judge of the Constitutional Court from 1994 to 2009. She studied law at the University of Cape Town as well as at the University of Sydney and the London School of Economics and Political Science. In the mid-1980s she worked for a firm of attorneys in Johannesburg, where she specialised in labour law. Towards the end of the 1980s she joined the law faculty at the University of Cape Town. Since her term of office at the Constitutional Court ended she has, among other activities, served as chairperson of the United Nations Internal Justice Council and as an ad hoc judge of the Namibian Supreme Court.