FSAL Women Cases Flashcards
Facts : Wookey
Ms Wookey was an articles clerk in the hopes of becoming an attorney. The articles were tendered to the secretary of the Law Society for registration under s4 of Act 27 of 1883. The Incorporated Law Society refused to accept the articles on the grounds that she was a woman.
The court a quo held that she was entitled to be a practitioner on the grounds that neither the Roman nor the Dutch law contained positive provisions disqualifying women from practicing as attorneys. Thus the custom could be departed from and the word “persons” in the Cape Charter of Justice included women as well as men. The Incorporated Law Society appealed and won.
legal issue of Wookey
Did the word “persons” in s20 of the Charter of Justice include women or did it refer to males only?
Appellants argument Wookey
Appellants (Inc. Law Society): Roman-Dutch Law prohibits women from occupying the office of an attorney and there has been no recorded case of women holding this position in English legal history. While women may hold private offices, attorneys are public servants therefore, they should be disqualified.
Respondents Wookey
Respondents (Wookey): The Roman law on the topic is obsolete and Voet leaves it up to the discretion of the court as to whether women may hold office as attorneys (though they cannot be on the official roll).
Ines ACJ Wookey Judgement
- Roman law excluded women from acting in legal proceedings
- Dutch law protected women’s’ rights but only because they were “weaker vessels” and weren’t deemed as equal
- Therefore, the appeal must succeed
Solomon J Wookey Judgement
- In neither Holland nor England has there been a single female in the legal occupation
- Therefore, the legislature would not allow women into the profession without clear language
- The Charter of Justice uses the word ‘persons’ when referring to men only.
De Villiers Judgement Wookey
- Some of the restrictions on certain professions in legal history are no longer applicable
- But to be an attorney, there has to be direct and clear statutory provisions allowing it
R v Detody facts
Mrs Detody was convicted of contravening s3 of the Transvaal Ordinance 43 of 1902. She, as a native woman, was caught on the streets of Pretoria at night without a written pass from her employer.
legal issue Detody
Does the Ordinance apply to native women in Detody’s situation in the same way that it applies to men?
Appellants Detody
Appellants (Detody): If the law ever did apply to women, it has become obsolete or abrogated by disuse. Secondly, s3 of the Ordinance never did apply to women in the first place, as the lawgiver’s intention was to impose obligations to carry night passes upon males alone.
Respondents Detody
Respondents (Rex):
Statutes cannot be abrogated in part, only in whole. Secondly, the law had not been in disuse long enough for it to be considered obsolete. Thirdly, the plain reading of the legislation does not disqualify women.
Judgment Innes CJ Detody
[majority]
- Detody’s first argument was invalid as the South Africa Act provided that all laws in force before the establishment of the Union shall continue unless amended or repealed by Parliament.
- Detody’s second argument was valid as the legislation did not apply to women due to precedent set by Wookey thus the word ‘persons’ was restricted to ‘men’
- If it had been the intention of the legislature to include women then they would have done so in express terms therefore, Detody’s conviction was set aside.
Judgment Solomon JA Detody
Majority
1. If the legislature intended women to be included, they would have been so expressly.
De Villiers JA Detody
[majority]
1. He agreed with the two above judgments
Innes and Solomon
Kotze judgement Detody
Kotze JA: [minority]
- The generalisation of the pass laws from “male person” in 1901 to “every person” in 1902 seems to suggest that the legislature’s intention was to include females in the pass laws as well as males.
- There is no good reason why women should be allowed to walk the streets of Pretoria at night. The legislature would have purposely changed the law to ‘every’ native in an attempt to protect women from the dangers of military presence on the streets at night.
