It has been a long standing requirement that to practice law whether as an attorney, advocate, magistrate or judge, one has to be a “ fit and proper person” https://www.judgesmatter.co.za/jsc-judicial-criteria-for-appointment/; M Slabbert – The Requirement of Being A Fit and Proper Person For the Lega Profession PER/PELJ 2011(14)4. A Fit a Proper Person was described by Judge Legodi in the case of General Council of the Bar of South Africa v Jiba (2017 (2) SA 122 (GP)) as a person that possessed integrity, objectivity, dignity, capacity for hard work, respect for legal order and sense of equality and fairness. Virtues reiterated in the Legal Practice Act Code of Ethics, applicable to all legal practitioners, candidate attorneys and juristic entities that are required to maintain the highest standards of honesty and integrity while simultaneously behaving toward their colleagues, whether in private practice or otherwise, ….. with integrity, fairness and respect and to avoid behavior which is insulting and demeaning.
Given these virtues and the obligations placed on legal professionals to uphold the honourable, noble and admirable legal profession, it is surprising that reports of sexual misconduct within the legal profession have more than doubled over the last 5 years and that that over one third of women practicing law have been victims of sexual harassment. A shocking statistic from the recent #MeToo survey on sexual harassment within the legal industry conducted by the International Bar Association together with the market research company, Acritas, whose survey was conducted over 135 countries, including South Africa. (Kathryn Rubino – “ A Look At The Staggering Sexual Harassment Numbers In The Legal Profession” 15 May 2019 – https://abovethelaw.com/2019/05/a-look-at-the-staggering-sexual-harassment-numbers-in-the-legal-profession/ – accessed 16 July 2020) ( https://www.ibanet.org/bullying-and-sexual-harassment.aspx)( Thomas Connelly – Reports of Sexual Misconduct at law firms hit all time high in wake of #MeToo” – 20 Jan 2020 – https://www.legalcheek.com/2020/01/reports-of-sexual-misconduct-at-law-firms-hit-all-time-high-in-wake-of-metoo/ – accessed 22 July 2020)
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Apart from confirming that 1 in every 3 women in law have been victims of sexual harassment, the survey additionally revealed that 75% of sexual harassment incidents were not reported due to the perpetrator’s status, out of fear of the consequences that may arise and that the incident may be deemed too pervasive at the work place. The survey further confirmed that only 53% of workplaces were deemed to have adequate workplace policies and regulations in place dealing with bullying and sexual harassment and that only one in five workplaces provided training on recognising and resolving sexual harassment and bullying problems, with most respondents believing that more could and should be done. (Kgomotso Ramotsho – The legal profession needs a helpline where sexual harassment can be reported – 26 August 2019 – De Rebus 2019 – http://www.derebus.org.za/the-legal-profession-needs-a-helpline-where-sexual-harassment-can-be-reported/ – accessed 16 July 2020) (Kieran Pender – Us Too? Bullying and Sexual Harassment in the Legal Profession – International Bar Association – 2019)
Sexual harassment, bullying and discrimination is nothing new in the legal profession. In fact, prior to the enactment of the South African Legal Practitioners Act (7 of 1923), which permitted women to enter and practice as legal practitioners, women were deemed to be non-persons in so far as the law was concerned. This was confirmed by the full bench of the Cape Supreme Court, led by Chief Justice Rose Innes, in the appeal case of Incorporated Law Society v. Wookey. The court held that section 20 of the Cape Charter of Justice which provided that any person suitably qualified could apply for admission as an attorney to practice law, excluded women, reasoning that the law and its statutes had to be interpreted in a manner consistent with law and legal practice in Holland and England, where it had long been the view that women should not practice law. https://mg.co.za/article/2018-08-09-let-the-world-know-that-women-were-once-not-persons-in-the-eyes-of-the-law/
In fact, the legal profession was deemed too “ …selfish and extortionate, knavish and criminal, coarse and brutal, repulsive and obscene…” to permit women to practice law, with consensus being that women were to innocent, timid and delicate, lacking an understanding of relevance, or analogy, or evidence, rendering them conspicuously unfitted for the practice of law. (Cited in Morello, 1986) The general view was that just as women were ill equipped to deal with physical conflict during battle, so too were they ill equipped, too soft natured and innocent to deal with judicial conflicts and related courtroom dramas. (Chief Justice C. J. Ryan of the Wisconsin Supreme Court opposing admitting Lavinia Goodell to the bar, 1895, cited in Epstein, 1993, p. 269) https://mg.co.za/article/2018-08-09-let-the-world-know-that-women-were-once-not-persons-in-the-eyes-of-the-law/. Even when women were permitted to study law and enter practice, they were often subject to significant ridicule. It was common practice within the law schools to ask female students questions designed specifically to embarrass them, such as having to describe and detail rape cases. Further female law students and practitioners were frequently humiliated with comments of returning to the kitchen or sticking to raising babies, specifically where their legal opinion was deemed contrary to legal writings and male opinions. (Anonymous – Chapter 5 – Women Entering the Legal Profession – Change and Resistance – 2006 – https://www.sagepub.com/sites/default/files/upm-binaries/12634_Chapter5.pdf – accessed 23 July 2020)
Today the situation is different and significant progress has been made by female legal practitioners, who are well represented with the legal filed. As at 2018, a total of 9268 first year students registered to study law of which 53% were female law students, with 56% of LLB graduates in 2017 being female graduates. Additionally of the 6,669 registered candidate attorneys performing their articles within South Africa today, 57% of those candidates are female, with female legal practitioners representing 39% of the 27,200 admitted attorneys currently practicing within South Africa. https://www.lssa.org.za/about-us/about-the-attorneys-profession/statistics-for-the-attorneys-profession/
Despite the momentous advancements made by female law graduates and legal practitioners, obstacles and glass ceilings remain a reality for many aspiring female professionals. (Lara Bazelon – What It Takes to Be a Trial Lawyer If You’re Not a Man – September 2018 – https://www.theatlantic.com/magazine/archive/2018/09/female-lawyers-sexism-courtroom/565778/) The fact is that law firms are still being managed and run as they were several years ago, run by men for male employees, reflective of what has been called second generation gender bias. These biases are described as work traditions, cultures and practices that appear prima facie neutral however reflect masculine values and the traditional lives of men, representing subtle barriers to women . A good lawyer is deemed to be available day and night, committed only to their work and client. Something men can easily do given they do not need to take on the challenge of collecting children from school and extra mural activities while making it back to the office in time to meet appalling billable hour targets nor are men required to find the perfect balance between the very fine line of being too ‘soft’ or too ‘strident,’ too ‘aggressive’ or ‘not aggressive enough.’ ”. (WOLELA – Womens Role in the Western Legal System – August 2017 – https://www.golegal.co.za/celebrate-women-lead-law/ – accessed 23 July 2020) (Lara Bazelon – What It Takes to Be a Trial Lawyer If You’re Not a Man – September 2018 – https://www.theatlantic.com/magazine/archive/2018/09/female-lawyers-sexism-courtroom/565778/)(Anonymous – Chapter 5 – Women Entering the Legal Profession – Change and Resistance – 2006 – https://www.sagepub.com/sites/default/files/upm-binaries/12634_Chapter5.pdf – accessed 23 July 2020)
Men are additionally far less likely to be subjected to what has been termed “ red-carpet interviews” , which entails being approached with a sexual proposition by a more senior male legal practitioner to get a job or promotion. Nor are men required to answer questions regarding their marital status, the number of children they have, the age of their children or where there are no children as yet, when they are planning to start a family. Questions often raised during female candidate attorney interviews and factors taken into account in determining promotion of female legal practitioners.
The prevalence of sexual harassment within the South African legal industry was clearly highlighted in the #MeToo survey on sexual harassment, with a female advocate confirming that upon requesting the implementation of a sexual harassment policy she was met with extensive backlash which included sexist comments, jokes and derogatory comments directed at her personally. Another female legal practitioner confirmed that one specific incident left her with very low self esteem, resulting in her even thinking about hurting herself on some occasions. Another female advocate stated during the survey – “ Most Bars are still male dominated and male controlled. The group retaliation against any women who call for an environment free from harassment is disgusting. It drives women from the Bar. There is solid wall, not a glass ceiling, and it is constantly reinforced by the men in charge.” Kieran Pender – Us Too? Bullying and Sexual Harassment in the Legal Profession – International Bar Association – 2019 – Pgs.93-94)
The survey and the prevalence of sexual harassment it confirm was rampant within the legal profession struck a cord within South Africa.
A group of well respected senior legal professionals have written a letter to President Ramaphosa and Justice Minister Ronald Lamalo, expressing their outrage at several female advocates that had been honoured with silk status for a number of years prior to the male advocates that were selected in assisting the state in their state capture prosecutions, emphasising that clearly the senior, female counsels and practitioners were not respected as their male counterparts, demanding a change. (Franny Rabkin – Women Lawyers: We Are Not Respected” Mail & Guardian – October 2019 – https://mg.co.za/article/2019-10-25-00-women-lawyers-we-are-not-respected/ – accessed 23 July 2020)
Further the National Association of Democratic Lawyers (NADEL) hosted the “ #TIMESUP – Sexual Harassment in the Legal Profession: It’s Time for Change,’ on 3 August 2019, providing a safe and peaceful space for open, conversational discussions on sexual harassment and the anonymous sharing of personal experiences. “ Kgomotso Ramotsho – The legal profession needs a helpline where sexual harassment can be reported – 26 August 2019 – De Rebus 2019 – http://www.derebus.org.za/the-legal-profession-needs-a-helpline-where-sexual-harassment-can-be-reported/ – accessed 16 July 2020) The legal practitioners and secretary generals of the constituent organisations that were present, including representatives from NADEL, the Black Lawyers Association (BLA), the South African Women Lawyers Association (SAWLA), the Law Society of South Africa (LSSA), Advocates for Transformation, the Pan African Bar Association of South Africa (PABASA) and the General Council of the Bar (GCB) acknowledged that sexual harassment was extensive within the legal field, especially where there were power imbalances, patriarchy and ingrained prejudices against women.
Despite no solution being found at the event itself to address the horror of sexual harassment and its prevalence within the legal industry, suggestions raised to deal with same included : the creation of an anonymous helpline to report sexual harassment, the drafting and implementing of mandatory policy and guidelines within the legal industry that comprehensively deals with sexual harassment, specifically penalty to be imposed on a perpetrator, ensuring a culture of zero tolerance throughout the legal field where consequences for sexual harassment are strictly imposed and regular education campaigns to educate all on sexual harassment, what it constitutes and how it should be dealt with, so that no one can claim ignorance. “ Kgomotso Ramotsho – The legal profession needs a helpline where sexual harassment can be reported – 26 August 2019 – De Rebus 2019 – http://www.derebus.org.za/the-legal-profession-needs-a-helpline-where-sexual-harassment-can-be-reported/ – accessed 22 July 2020)
Sexual harassment is primarily an HR matter and is thus primarily dealt with internally by law firms, ensuring that their dirty laundry is not hang outside for all to see. This means that the true of extent of sexual harassment may never be known with absolute certainty. Additionally, while sexual harassment could be reported to the Law Society of South Africa and the provincial Legal Practice Councils on the basis of misconduct, the LSSA and LPC’s do not have specific departments nor taskforces that deal with sexual harassment. Furthermore, if recent reports are anything to go by, it would appear that the LSSA and LPCs do not consider sexual harassment a matter that falls within their jurisdiction, deeming same to be more appropriately dealt with by the police and our criminal justice system, as evidenced by a young female candidate attorney who filed a complaint of sexual harassment against her male principal to the Law Society of the Northern Province, who refused to investigate the allegation as they allegedly did not have jurisdiction to investigate allegations of rape and/or sexual assault. (Athandiwe Saba – Rape Claim Tarnishes Legal Profession – September 2017 – https://mg.co.za/article/2017-09-22-00-rape-claim-tarnishes-legal-profession/ – accessed 23 July 2020)
From the research conducted, it is evident that there is currently no organisation, institution or association that specifically deals with educating, supporting and reporting of sexual harassment within the legal industry in South Africa. Some institutions, organisations or associations that may offer some assistance and comfort are provided hereunder. They are however not specifically aimed at assisting female legal practitioners who have been sexually harassed by a colleague in the legal field and are more aimed at providing assistance and help to the public in general.
Notwithstanding the reverberating repercussions the #Us Too survey has had worldwide and numerous local and international research publications and articles recognising the hardship still faced by female legal practitioners, it would appear that only lip service is being paid to addressing sexual harassment within the legal industry. Despite recognition of a need to bring about a change and to provide a means to report sexual harassment and ensure a zero tolerance culture, very little has been done to make this a reality. A change is clearly needed. Be part of shaping the law of tomorrow, bringing about a change by taking part in the anonymous survey on sexual harassment in the legal industry – whether male or female – to demand that a change be made.
Head of Futures Law Faculty and Director at ILPDR