South Africa: Women in the Legal Profession

Some time ago I was disturbed when I read an article in an American magazine which detailed just how many of the best law students (who happened to be women), after they had graduated from the Ivy League Colleges in the United States of America, were not remaining in private practice.

In fact the magazine article confirmed that, over the years, the statistics showed that women were becoming less successful at attaining the position of partner in the big law firms! The reasons were apparently very fundamental: the women lawyers complained about discrimination, isolation and a feeling that law firms experienced a discomfort with their presence. Although individual women lawyers had reached the top in their profession, they had reported that "something pernicious – a gradual, almost unconscious process by which women and law firms reject each other – has settled like a pall on the profession" in the United States.

It is well known that law firms do breed lawyers to have a single-minded focus on loyalty, not sensitivity, to the subtleties in the workplace. The magazine concluded that it was clear that differences, whether femininity, family or even passion for anything else, simply did not fit into law offices' one-dimensional ethos.

American women lawyers are apparently still downbeat because there is no foreseeable event, which will force firms to staunch the flow of women out of the profession.

It is worrying that these basic issues are still so problematic, and of such concern to women practitioners, that many of these brilliant lawyers in the United States of America are being forced out of the profession. While one expects to be confronted with obstacles and discrimination in a complex and patriarchal society, such as South Africa, the frightening trend described in the American article continues to worry me.

Having practised since 1987 in South Africa, I have been aware of and encouraged by the strides that women lawyers have been making in this part of the world. The number of women practising as attorneys has increased over the past 30 years from two per cent at the end of the 1960s to some 19 per cent in 1998. Our figures will appear under-represented in the profession when compared to England and New Zealand where women make up 34 per cent and 32 per cent of the legal practitioners respectively. However, after having endured the undemocratic 40 "apartheid" years, the contribution that has and continues to be made by women lawyers, both in private and in Government, is eventually being recognised. It was therefore with concern that recent surveys have uncovered that South African women law graduates are not going into private practice, they are not remaining there; a trend very similar to that which I had read about in the American magazine some years before.

The picture in South Africa at candidate attorney level still appears to be encouraging with universities in South Africa having between 36 per cent and 50 per cent females in their classes. Even at Practical Legal Training Classes (which take place after candidates have finalised their academic requirements and attend the schools as part of their articles of clerkship), the number of female attendees is reported to be around 50 per cent. According to a recent media report, a telephonic survey of the top tend Gauteng legal firms revealed that about 40 per cent of their candidate attorneys serving articles were women. Why is it then that when it comes to partnership level, the figure drops to 14 per cent?

The statistics become even more worrying: in 1998, the number of women practising at the Bar in South Africa showed a downward trend. The number of women advocates had increased (as with the women attorneys) from two per cent in the late 1960s to 12.7 per cent in 1997 but the figure has now started to drop. Only two per cent of silks in the country are women, with no women silks practising at certain Bars in the country.

It is therefore very evident from the above mentioned figures that women are simply better represented at student and entry level than they are as practising attorneys, or as partners of legal firms. Certain universities and the Law Society (which represent attorneys in South Africa) are taking an interest in this continuing and disturbing negative trend. What seems to be accepted is that women entering the profession are still faced with hidden "barriers", and that cultural and sexist values lead to these barriers. It has also been identified that, especially in the African communities, it is very difficult for women to break from the traditional customary roles. It is also suspected that most South African law office environments, as with firms in the USA, have gender barriers that affect the participation of women at all levels of the firm.

It has to be accepted in South Africa that factors that inhibit or undermine the advancement of women must be identified as soon as possible. Policies on sexual harassment have to have a place in law firms and it must be recognised that Affirmative Action not only includes race, but gender too. It has been good news to hear that a study may be done to determine what happened to all those women who never made it into practice.

After reading the rather disturbing figures above, I was recently greatly encouraged when I attended my new firm's Partnership Conference, where a comprehensive presentation was given on, inter alia, the recruitment and retention of female attorneys in the firm.

I share the statistics and information with you not only because I am proud of the positive developments within my firm, but also as a concrete example to other law firms, especially in South Africa, as to what can be done. These pleasing results, however, have only been realised through dedicated and committed efforts over many years by the Partnership and Management Team at the firm.

The tables and commentary below really speak for themselves, and I end my article with a statement from the partners of my firm which succinctly summarises their view:

1. It is a strategic necessity of the firm to systematically achieve greater diversity of background and ethnic/gender mix of partners, professionals, management and support staff in the firm.
2. In terms of the firm's policy on investment in human capital, a mentorship programme is being implemented with the specific objective to improve retention of black and female attorneys and to achieve professional staff diversity at all levels.
3. The firm has introduced flexible work arrangements for working mothers and continues to consult with female staff who have family commitments, regarding innovative ways to retain their skills."