FSAL: 9 COMPULSORY CASES
DISTRIBUTION OF THIS DOCUMENT IS ILLEGAL
**These are key points taken from Word documents and PowerPoint presentations. SOME parts are directly quoted, others have been simplified
by me. I do not take credit for any knowledge expressed in this document, only the summary of notes and easy access to key points that I found
important** Full bibliography at the end
- Baase, Mathabo. (2021). Week 1-6 Shorthand notes. Unpublished manuscript, PVL1003W, University of Cape Town, South Africa.
CASES COVERED:
1. Incorporated Law Society v Wookey
2. R v Detody
3. R v Padsha
4. Minister of Posts and Telegraphs v Rasool
5. R v Abdurahman
6. Loza v Police Station Commander, Durbanville
7. Rossouw,NO v Sachs
8. Schermbrucker v Klindt NO
9. Minister of Law and Order v Hurley
,Incorporated Law Society v. Wookey, 1912 AD 623
Facts:
Medline Wookey attempted to have her articles registered with the Law Society however
the secretary refused to register them on the grounds that Ms Wookey was a woman. Ms
Wookey applied to the Provincial Division to compel the judge to register her articles and
the judge granted her request. The Incorporated Law Societies appealed to the Appellate
Division where all three judges held that women are not permitted to be admitted to the
bar.
Legal Issue:
- Is Ms Wookey a “person”? Did the word “persons” in s20 of the Charter of Justice
include women or did it refer to males only?
Law:
- Sec. 20 of the Cape Charter of Justice provides that “such "persons" as may be instructed
in the knowledge and practice of the law, etc., may be enrolled as attorneys.”
Arguments:
- Wookey: word “persons” not gender specific
- Law Society: weren’t any female practitioners, 1912 reality inform interpretation
- The appellants relied on Roman-Dutch law which excluded women from
occupying the office of an attorney, as well as English legal history where there
was no recorded case of women being admitted as attorneys. They argued that
women can hold private offices but not public offices, attorneys are public
services and women are therefore prohibited from acting as attorneys. Women
holding public positions in other professions are able to do so through an
implemented statute. The respondents argued that Roman law on the issue is
obsolete and Voet leaves the issue to the discretion of the courts. If a person is
deemed to be fit and proper and completes their articles they should be admitted
as an attorney.
Appellants (Inc. Law Society): RDL 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): The RL 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)
Decision:
- Law Society’s Appeal unanimously upheld, women not considered “persons”.
Reasoning:
The Judges looked at the common practices of Holland where women were not allowed
to become attorneys and argued that this is essentially the common law on the matter.
Innes ACJ, held that the courts alone could not make such an important interference with
the language of the statute. This case perfectly illustrates the “I’m sorry, but my hands are
tied” approach to adjudication, where although purporting to express reluctance (and
even regret) the judge still orders the full (and unjust) effect of the law. The Wookey case
illustrates the court’s reluctance to interfere with the wording (and derived intention) of
the legislature.
The respondent argued that under strict law she could be enrolled because the word
“person” was not exclusive of women; it stated without any reference to gender. She also
argued that Voet left the admission of women as attorneys was at the Court’s discretion
and Roman law was obsolete regarding this subject. She also argued that according to
Voet, women could act as attorneys although they could not be enrolled officially; further
arguing that her gender is trivial
Importance:
This case is important because it shows how the rule of law was used to advance
patriarchy in the legal system; by extension advancing injustice.
Today, this is in violation of section 9 of the Constitution of the Republic of South
Africa; her right to be treated as an equal to men. The Court’s positivist approach to the
law is ascertained by the statement it makes about being unable to change what it
conceived to be the meaning of an Act of Parliament. This shows the effect parliamentary
sovereignty had on the justice system. The rule of law, through parliamentary sovereignty
and positive law practice, was undermined. Parliament was not accountable to the public
and the rule of law.
DISTRIBUTION OF THIS DOCUMENT IS ILLEGAL
**These are key points taken from Word documents and PowerPoint presentations. SOME parts are directly quoted, others have been simplified
by me. I do not take credit for any knowledge expressed in this document, only the summary of notes and easy access to key points that I found
important** Full bibliography at the end
- Baase, Mathabo. (2021). Week 1-6 Shorthand notes. Unpublished manuscript, PVL1003W, University of Cape Town, South Africa.
CASES COVERED:
1. Incorporated Law Society v Wookey
2. R v Detody
3. R v Padsha
4. Minister of Posts and Telegraphs v Rasool
5. R v Abdurahman
6. Loza v Police Station Commander, Durbanville
7. Rossouw,NO v Sachs
8. Schermbrucker v Klindt NO
9. Minister of Law and Order v Hurley
,Incorporated Law Society v. Wookey, 1912 AD 623
Facts:
Medline Wookey attempted to have her articles registered with the Law Society however
the secretary refused to register them on the grounds that Ms Wookey was a woman. Ms
Wookey applied to the Provincial Division to compel the judge to register her articles and
the judge granted her request. The Incorporated Law Societies appealed to the Appellate
Division where all three judges held that women are not permitted to be admitted to the
bar.
Legal Issue:
- Is Ms Wookey a “person”? Did the word “persons” in s20 of the Charter of Justice
include women or did it refer to males only?
Law:
- Sec. 20 of the Cape Charter of Justice provides that “such "persons" as may be instructed
in the knowledge and practice of the law, etc., may be enrolled as attorneys.”
Arguments:
- Wookey: word “persons” not gender specific
- Law Society: weren’t any female practitioners, 1912 reality inform interpretation
- The appellants relied on Roman-Dutch law which excluded women from
occupying the office of an attorney, as well as English legal history where there
was no recorded case of women being admitted as attorneys. They argued that
women can hold private offices but not public offices, attorneys are public
services and women are therefore prohibited from acting as attorneys. Women
holding public positions in other professions are able to do so through an
implemented statute. The respondents argued that Roman law on the issue is
obsolete and Voet leaves the issue to the discretion of the courts. If a person is
deemed to be fit and proper and completes their articles they should be admitted
as an attorney.
Appellants (Inc. Law Society): RDL 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): The RL 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)
Decision:
- Law Society’s Appeal unanimously upheld, women not considered “persons”.
Reasoning:
The Judges looked at the common practices of Holland where women were not allowed
to become attorneys and argued that this is essentially the common law on the matter.
Innes ACJ, held that the courts alone could not make such an important interference with
the language of the statute. This case perfectly illustrates the “I’m sorry, but my hands are
tied” approach to adjudication, where although purporting to express reluctance (and
even regret) the judge still orders the full (and unjust) effect of the law. The Wookey case
illustrates the court’s reluctance to interfere with the wording (and derived intention) of
the legislature.
The respondent argued that under strict law she could be enrolled because the word
“person” was not exclusive of women; it stated without any reference to gender. She also
argued that Voet left the admission of women as attorneys was at the Court’s discretion
and Roman law was obsolete regarding this subject. She also argued that according to
Voet, women could act as attorneys although they could not be enrolled officially; further
arguing that her gender is trivial
Importance:
This case is important because it shows how the rule of law was used to advance
patriarchy in the legal system; by extension advancing injustice.
Today, this is in violation of section 9 of the Constitution of the Republic of South
Africa; her right to be treated as an equal to men. The Court’s positivist approach to the
law is ascertained by the statement it makes about being unable to change what it
conceived to be the meaning of an Act of Parliament. This shows the effect parliamentary
sovereignty had on the justice system. The rule of law, through parliamentary sovereignty
and positive law practice, was undermined. Parliament was not accountable to the public
and the rule of law.
