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Incorporated LAW Society Appellant v Wookey Respondent

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South African Appellate Division Reports (1910 to date)/SA APPELLATE REPORTS 3 CHRONOLOGICAL LISTING 1910 to July 2022/1912/October ­ December,
1912/INCORPORATED LAW SOCIETY Appellant v WOOKEY Respondent 1912 AD 623

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INCORPORATED LAW SOCIETY Appellant v WOOKEY Respondent 1912 AD 623

Citation 1912 AD 623

Court Appellate Division, Bloemfontein, Cape Town

Judge Coram Innes ACJ, Solomon J and J De Villiers JP

Heard September 6, 1912

Judgment October 22, 1912

Flynote : Sleutelwoorde
Attorney ­ Admission of Woman ­ Charter of Justice (C.) sec. 20.
Headnote : Kopnota
A woman cannot be enrolled as, an attorney in the Province of the Cape of Good Hope.

1912 AD p624

By sec. 20 of the Cape Charter of Justice it is provided that such "persons" as may be instructed in the knowledge and practice of the law, etc.,
may be enrolled as attorneys.
Held, that the word "persons" included only pale persons, and that the respondent Miss W was not entitled to be enrolled.
(Per INNES, A.C.J.): That, as the common law at the date of the passing of the statute did not permit the enrolment of a woman as an
attorney, it was impossible to infer from the use of the word "persons" an intention to effect so important an alteration, and that by the word
"persons" male persons only were denoted.
(Per SOLOMON, J.): That as from time immemorial men only had been admitted and enrolled as attorneys, and as the legislature had made use
of the ambiguous word "persons" which in the same statute was used of various officers who could be males only, the word "persons" must be
construed as meaning male persons.
The decision of the Cape Provincial Division in Wookey v Incorporated Law Society (1912 CPD 263) overruled.
Case Information
Appeal from the decision of the Cape Provincial Division (MAASDORP, J.P.) on motion. The appeal was taken direct to the Appellate Division under
sec. 5 of Act 1 of 1911.
Miss Wookey, the respondent, had entered into articles of clerkship with a attorney in the Cape Province. The secretary of the Cape
Incorporated Law Society, however, refused to register the articles, under Act 27 of 1883, sec. 4, and accordingly the Registrar of the Supreme
Court was unable to accept and register the same. Miss Wookey applied, to the Provincial Division for an order to compel the Law Society to
accept and register her articles of clerkship, and obtained the following Order: The Court directs that the applicant is entitled to

1912 AD p625

enter into articles of clerkship as an attorney's clerk, under the Rules of Court, and upon attaining the required qualifications, to be enrolled as
an attorney. From this order the Law Society now appealed.
J. A. Greer, for the appellant society: The judgment below (1912, C.P.D at p. 266) exhausts the Roman Dutch law on the subject. Digest (50,
17, 2) excludes women from civil and public offices. The office of attorney is public and is a civil office. Civil disabilities of women are not
obsolete. Digest (3, 1, 5) uses the phrase virilia officia. See also Digest (1, 5, 9) and Code (2, 13, 18). It is clear that Roman­Dutch common
law excluded women from the office of an attorney, See Voet (1, 3, 5 1, 5, 1 3, 3, 4), Van Leeuwen R.D.L. (1, 6, 1), and Schlesin v Inc. Law
Society (1909, T.S. 363). In ex parte Flather (13 S.C. 476) a woman was admitted as a translator. That is very different, as a translator works
in privacy. Interpreters in Court hold public office. See Rule of Court (C.) 140. Rules 149 to 152 deal with attorneys. They use the word "person"
and "he" and "his." In Great Britain women cannot vote for Parliament: see Nairn v Univ of St. Andrews (1909, A.C. 147), Chorlton v Lings (L.R. 4
C.P. 374), they cannot be elected to County Councils, Beresford Hope v Sandhurst (23 Q.B.D. 79), or enrolled as law agents in Scotland, Hall v
Incorp. Society of Law Agents (38 Scot. L. Reporter 776). To admit women as doctors a statute (39 & 40 Vic. c. 41 s. 1) was passed. Similarly
a statute would be necessary to admit them as attorneys. See Encycl of Laws of England s.v. Women (2nd ed., p. 822, vol. 14).
D. M. Buchanan, for the respondent: The respondent is entitled in strict law to be enrolled. If not, it is at all events in the discretion of the
Judge and he has exercised his discretion in our favour. The Roman Law on the subject is obsolete. Before and after the case of Carfania women
could appear in the Roman Courts. See Tacitus (Annals. 3, 33). Voet (3, 3, 4) leaves the admission of women to the discretion of the Court,
and (3, 3, 5) shows that women can act as attorneys though they cannot be put on the official roll. See also Van Leeuwen R.D.L. (1, 6, 6).

1912 AD p626
[INNES, A.C.J.: How can a married woman appear for another and not for herself?]
That is due to the peculiarity of her legal status. If she is admitted now and afterwards marries she will not be allowed to practise. The privilege
extended to women who are public traders should apply to a woman attorney. The word person includes females. See Van Zyl's (Jud. Pract.,
2nd ed., pp. 710, 711), Charter of Justice (C.), secs. 19, 20, Rules of Court (C.), 151, 293.
[SOLOMON, J.: I suppose we may take it as notorious that no woman has been admitted here or in Holland?]
Yes, but as far as I know no application has been made or refused. See also the Cape Acts 12 of 1858, sec. 3, 16 of 1873, secs. 19, 21, Act 27
of 1883, secs. 18, 19, the Cape Interpretation Act 5 of 1883, sec. 14, and the Union Interpretation Act 5 of 1910, secs. 2 and 7. The English
Solicitor's Act of 1843, sec. 48, leaves the profession open to women, but as far as I can ascertain there has been no application for admission
by a woman. See Encyclop of Laws of England, vol. 13, p. 439 s.v. Solicitor.
The cases have decided that the admission of women is in the Court's discretion and the old practice is obsolete. The discretion has been
exercised in favour of the respondent and this Court will not interfere.
[INNES, A.C.J.: The discretion must be exercised judicially in accordance with the law of the Province.]
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Unless the office is a public or political one, the Roman­Dutch
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MABANGWE is now obsolete in the Cape Province. Schlesin's case is not
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 by a woman. See Encyclop of Laws of England, vol. 13, p. 439 s.v. Solicitor. lOMoARcPSD|35474838

The cases have decided that the admission of women is in the Court's discretion and the old practice is obsolete. The discretion has been
exercised in favour of the respondent and this Court will not interfere.
[INNES, A.C.J.: The discretion must be exercised judicially in accordance with the law of the Province.]
Unless the office is a public or political one, the Roman­Dutch law on the subject is now obsolete in the Cape Province. Schlesin's case is not
supported by authority.
[Have you looked at Roman­Dutch books on practice, e g., Van der Linden?]
No. My position is that if there was a custom in Holland it has been abrogated. Women can be doctors in the Cape Province (Act 34 of 1891,
sec. 33), they serve on Government Commissions and School Boards, and certain positions in the Civil Service, e.g., typists and telephone
operators, are open to them.

1912 AD p627

Greer, in reply, referred to Encyclop of Laws of England (vol. 14, p. 826 s.v. Women) as to the refusal of an application by a woman for
enrolment.
Cur. adv. vult.
Postea on October 22.
Judgment
INNES, A.C.J.: On the 28th February last the applicant, Madeline Una Wookey, indentured herself as a clerk to Reginald de Beer, an attorney,
practising at Vryburg. Her object was to qualify in the ordinary way for admission as a practitioner. The articles were in due course tendered to
the secretary of the Law Society for registration in terms of Act No. 27 1883. That official, however, acting under instructions, refused to
accept them, on the ground that the indentured clerk was a woman. Application was thereupon made to a Judge of the Provincial Division for an
order compelling the society to register the articles. The order was granted and the matter now comes before this Court on appeal from that
decision.
The object of the society's opposition is to test the applicant's right of admission to the profession after a completed service as articled clerk.
And it is on every ground desirable that the matter should be settled now, and not be allowed to remain in uncertainty during the currency of
the indenture. So that the real point at issue is whether a woman is disqualified from being enrolled as an attorney. It is hardly necessary to
point out that the question is one of the utmost importance not only to the applicant herself, and to others who may be desirous of following
her example, but to the profession and the public. If it was rightly answered in the Court below, the result will be materially to widen the area of
women's economic activities, though that be done by opening to a host of new competitors the doors of an already congested profession. If it
was wrongly answered, then the law of the country will be denying to one­half of its citizens, on the mere ground of sex, the right of employing
their natural abilities in the pursuit of an honourable calling. And the matter acquires an additional

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INNES, A.C.J.
interest from the circumstances that in considering an exactly similar application a Judge of the Transvaal Supreme Court (BRISTOWE, J.),
arrived at an exactly opposite conclusion. (Schlesin v Law Society, 1909, T.S. 363.)
The learned JUDGE­PRESIDENT dealt with the question on the following lines. On a consideration of the authorities, he came to the conclusion
that the Dutch law had materially modified the Roman disqualification of women in regard to agency in the conduct of legal proceedings and
that though it prohibited them from filling public offices, the position of an attorney was not such an office. The Courts of Holland, he found,
admitted only men as enrolled practitioners but that was not a positive law, but a mere rule of practice which might be departed from. Under
these circumstances he felt justified in refusing to follow it, and in giving effect to the wide language of the Charter of Justice. That statute, as
well as the rules made under it and the subsequent legislation which modified it, used the term "persons" in describing those who, on proof of
due qualification, were entitled to be enrolled as attorneys. The word in its ordinary sense included females as well as males, and he decided,
therefore, that the applicant might in due course be qualified for admission.
It is with real regret that I feel constrained to differ from that view and I propose to state my reasons as briefly as the nature and importance
of the subject will permit. By the 20th section of the Charter of Justice the Supreme Court was authorised to admit and enrol such "persons"
duly instructed in the knowledge and practice of the law as should be approved in terms of any rule of Court made in that behalf. Appropriate
rules were thereafter promulgated, and special qualifications were laid down in subsequent statutes but, as already indicated, such legislation
dealt only with the "persons" referred to in the Chapter. And the point upon which this dispute turns is whether that expression should be
construed as meaning "male persons" or as meaning "any persons." That it may be used in either sense is clear and a reference to the statute
itself discloses

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INNES, A.C.J.
actual instances of its employment in the restricted as opposed to the general sense. Thus section 4 empowers the Governor, in case of the
death, resignation, or incapacity of the Chief Justice or any of the Puisne Judges, to appoint some fit and proper "person or persons" to act in
their stead. But when the Charter was promulgated, the appointment of a woman to be Chief Justice would have been illegal so that by
"persons" as used in the section referred to, the Legislature must have meant "male persons." The question is what it meant by that term in
section 20. Now, narrow though the compass of that inquiry may at first sight seem, it really involves an investigation of the law, as it existed
at the passing of the statute. For I agree with the JUDGE­PRESIDENT that if the then Common Law did not permit the enrolment of a woman as
an attorney, it would be impossible to infer from the general language of the Charter an intention to effect so important an alteration.
A reference to the authorities shows that there was a considerable difference between the Roman procurator and the Dutch procurator. The
former term denoted any agent appointed to carry on legal proceedings for another. This, during the earlier stages of Roman law, he could only
do by becoming himself the principal in the action. The "condemnatio," or as we should call it the prayer of the declaration, was drawn in his
own name, and not in that of his "mandator." He became, in a sense, the litigant and hence the rule that after the "litis contestatio" the
principal could not change his agent at will (see Hunter, p. 868, and "leges" there cited). The civil law consistently prohibited women from
transacting this branch of agency. In Digest 3, 1, 1, the various classes are enumerated whose rights to conduct legal proceedings ("postulare")
had been either taken away or abridged by the Praetor's edict. Among them, women were prohibited from taking charge of law suits for others,
lest contrary to the proper modesty of their sex they should mix themselves up in the affairs of others, and lest they should take upon
themselves the discharge of duties appropriated only to men ("ne virilibus officiis fungantur"). To similar effect is Digest 50, 17, 2,

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INNES, A.C.J.
which reads as follows: "Women are entirely excluded from rendering civil or public services" ("feminae ab omnibus officiis civilibus vel publicis
remotae sunt") they can, therefore, neither be "judices," nor exercise a magisterial office, nor bind themselves for another, nor hold the
position of "procuratores." The learned JUDGE­PRESIDENT seemed to be of opinion that the word "civilibus" in the above text was practically
synonymous with "publicis" but I venture to think that that is not so. In Godefroy's edition of the "Corpus Juris," the following note occurs
against "civilibus": "Id est virilibus." In other words, the "civilibus officiis" of the last quoted passage is equivalent to the "virilibus officiis" of the
earlier lex. If that be the true meaning, then the ground upon which women were prevented from becoming "procuratores" was not because the
office was at that time considered a "public" one, but because its duties were such as were reserved exclusively for men, and could not be
discharged by females. There were, under the Roman system, many such activities. Thus in regard to, guardianship we find in Code, 2, 13, 18,
the following: "To undertake the defence of another is the duty of a male" ("virile est officium"), "and is outside the function of the female sex."
And Digest, 2, 13, 12, declares that women ought not to be bankers, because that is work allowed only to men ("cum ea opera virilis sit"). (And
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earlier lex. If that be the true meaning, then the ground upon which women were prevented from becoming "procuratores" was not because the
office was at that time considered a "public" one, but because its duties were such as were reserved exclusively for men, and could not be
discharged by females. There were, under the Roman system, many such activities. Thus in regard to, guardianship we find in Code, 2, 13, 18,
the following: "To undertake the defence of another is the duty of a male" ("virile est officium"), "and is outside the function of the female sex."
And Digest, 2, 13, 12, declares that women ought not to be bankers, because that is work allowed only to men ("cum ea opera virilis sit"). (And
see also Digest, 16, 1, 1, and Digest, 26, 1, 18).
So much for the position under Roman law. The status of a "procurator" in Holland during the 16th century and onward was in several respects
very different. In place of the office being one of small account, for which no very special qualifications were required, we find it considered
highly honourable and filled only by qualified men, carefully selected and specially enrolled. Instead of any suitor, principal, or agent being
allowed to plead his own cause if he so desired, we have a system by which every litigant was compelled to present his case through an
advocate and an attorney in the higher Courts, or through an attorney alone in the lower ones. Each Court enrolled a fixed number of
procureurs, and the limit, though subject to enlargement, was in practice never ex­

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INNES, A.C.J.
ceeded. Thus, in the time of Merula there were only sixteen attorneys on the roll of the Court of Holland, and the number remained the same for
many years: see Groot Placaat Boek (Vol. 7, p. 852). Professional rights thus fostered and protected acquired a high value, and we find that an
enrolled procurator could sell his interest in his position to any qualified person approved by the Court, and could even pledge it: Merula (4, 18,
7, n.). Now these privileged practitioners were the predecessors of the much larger class to which the present applicant seeks admission. And
their office was by the Dutch law considered to be of a public character. For this proposition there is a mass of authority. Thus Groenewegen
(Inst., 4, 10, 1) has the following: "Formerly (i.e., under Roman Law) the office of an attorney was private. . . . But with us it is public: in every
Court certain persons are selected and sworn, and these alone exercise that function in judicial matters." And Voet (3, 3, 1) is to this effect:
"Nor is the office (of an attorney) a private one, as it was among the Romans, but rather a public one. So much so that in every tribunal a
certain number of attorneys is found skilled in Court practice, after the example of the Romans in regard to advocates, beyond whom other
persons were not allowed to assist litigants." See also Vroman de Foro Competenti (II, 4, 1, n.), Huber (Vol. II, 1, 17, 4), Cens. Forensis (Pt. II,
1, 5, 2 and 11). The enrolled procureurs of Holland were, in short, officers of the Court (as in a sense modern attorneys also are), and the Groot
Placaat Boek contains many quaint and interesting examples of the discipline to which they were subjected. And their duties, being of a public
nature, could not legally be discharged by women. Upon this point Voet (3, 3, 4) is perfectly definite. "It is the clear practice of our Courts," he
says, "that no woman can be entered in the solemn and fixed number of Court procurators but on the other hand there is nothing forbids that a
woman should he appointed under a general power including an authority to carry on law suits, or under a special power to recover something in
Court, provided she avails herself of the vicarious aid of an enrolled attorney, in regard to matters which have to be publicly done in

1912 AD p632
INNES, A.C.J.
Court, just as a man would have to do." In other words, there was nothing to prevent a woman instituting legal proceedings as the agent of
another, and instructing an attorney in the action, just as a man might do. But the difference between them was this: the man might, if
otherwise qualified, become an attorney himself, but the woman never could. And Huber (1, 19, 3) is to the same effect. "Women," he remarks,
"are excluded from the office of attorney, as they are from all public offices." The learned JUDGE­PRESIDENT attached great importance to a
passage in Van Leeuwen's Roman­Dutch Law (1, 6, 1), which in Kotzé's translation of that work is rendered as follows: "Likewise, owing to the
same natural peculiarity, it happens that, inasmuch as nearly the whole of womankind by reason of an inborn weakness is less suited for matters
requiring knowledge and judgment than men, women are excluded from holding any office or dignity relating to the government of a people and
its affairs. The office of an attorney, did not, he thought, relate to the Government of a people, and its affairs, and therefore could not fall
under the common law prohibition. I find that the words of the original text relevant to the present inquiry are these: "De vrouwen van de
bedieninge van alle ampten en waardigheden, tot bestier van luyden en saken behorende, zyn uitgesloten." I venture to suggest that the words
"tot bestier van luyden en saken behorende" may also be correctly rendered as "relating to the management of men and affairs." The words
"government of a people and its affairs" tend to confine the disability spoken of to public in the sense of State or political offices, an idea which
can hardly be gathered from the original. If Van Leeuwen was of opinion (as opposed to Voet and Huber) that the office of an attorney was not
one from which women were by common law excluded, one would have expected some reference to the matter when he came to discuss the
legal practitioners. Yet neither in his main work (Book V, c. 4, sec. 3 et seq.) nor in his "Censura Forensis" (Part II, 1, 5) nor in his "Paratitula"
(Book II, c. 6) does any such reference occur.
It comes then to this: that under the Roman­Dutch system women could not be enrolled and admitted as at­

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INNES, A.C.J.
torneys. The learned JUDGE­PRESIDENT considered that this was a mere question of practice. Even so, and even if there were no statute on
the point, one would think that a practice observed by the Courts of South Africa and their predecessors for 400 years would require a Rule of
Court duly promulgated to change it. But I do not think it was a mere rule of practice. It is not so referred to in any authority which I have
consulted. And it would seem rather to have been a consequence of the general position which women occupied under Roman­Dutch
jurisprudence. The law of Holland was indeed astonishingly broad and liberal on this subject it dealt with certain aspects of the conjugal
relationship, for instance, with an even­handed justice to which the law of England has, even now, not attained. But it certainly did not place
men and women in a position of equality. It went out of its way to protect women, but it protected them as being the weaker vessels, and
subject to natural and legal disabilities. So soon as a woman married, she fell under the guardianship of her husband, and, unless she was a
public trader, could not sue or be sued without his assistance. Her rights of guardianship over her children were subordinated to those of her
husband. And she could not legally witness a will, as opposed to a codicil. In this connection, it is interesting to note that it is only since 1876
in the Cape Province, and since 1903 in the Transvaal, that women have been by statute declared competent testamentary witnesses Various
privileges were accorded to women, such as those relating to suretyship, and some of them remain in force in South Africa to this day but they
were devised because women were considered to be less capable than men of engaging in and transacting business affairs. It is not necessary
to discuss this aspect of the matter in further detail. Rightly or wrongly, that was the point of view of the Roman­Dutch Law and the inability
of women to be enrolled as attorneys seems to me not to have been a mere point of practice, but to have had its origin much deeper in the
general position which the sex occupied tinder that legal system.
Such was, in my judgment, the law, so far as it affects the point before, us, which the first settlers brought with

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INNES, A.C.J.
them to South Africa. And it is safe to say that it remained unaltered during the whole of the eighteenth century. For the old Raad van Justitie
followed the Civil and Criminal Procedure Ordinances of Holland, and were guided by Dutch writers on practice: see Wessels (p. 362). Following
on the British occupation there was promulgated the Charter of Justice of 1827 this in its turn was superseded by the existing Charter, which
took effect in 1834. As the provisions of the two documents with regard to the admission of attorneys were identical, it will be necessary to
refer only to section 20 of the later statute. So that we are now in a position to deal with the inquiry upon which, as already pointed out, this
matter really depends namely, what meaning should be given to the word "persons" in that section.
In Hall v Society of Law Agents (38 Scottish Law Reporter, p. 776) the word "persons" where it occurred in an Act dealing with the qualifications
of law agents was by the full Scotch Court held to denote male persons only. The term being ambiguous, that meaning was assigned to it which
was shown to be in accordance with inveterate usage. Can there be any doubt that the same word was intended to bear the same meaning in
section 20 of the Charter? The statute was framed in England, where at that time and thereafter no woman had ever been enrolled as an
attorney. It was grafted upon a system of law under which not only had a similar condition for centuries prevailed, but which by express
provision declared a woman incapable of filling such an office. And to any mind it is not possible, under such circumstances, to come to the
conclusion
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was shown to be in accordance with inveterate usage. Can there be any doubt that the same word was intended to bear the same meaning in
section 20 of the Charter? The statute was framed in England, where at that time and thereafter no woman had ever been enrolled as an
attorney. It was grafted upon a system of law under which not only had a similar condition for centuries prevailed, but which by express
provision declared a woman incapable of filling such an office. And to any mind it is not possible, under such circumstances, to come to the
conclusion that the Legislature intended to amend the law of the new Colony in so important a respect, and to introduce at the Cape a rule
which was unknown in England. Such an intention surely would not have been indicated by the mere use of an ambiguous term it would have
been expressed in clear and definite language. So that one is forced to the conclusion that by the word "persons" male persons only were
denoted.
The result is a hard one for the applicant, and for others who may find themselves in like case with her.

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INNES, A.C.J.
But, however much one may sympathise with their position, it is impossible for a Court of Law to help them contrary to what it conceives to be
the meaning of an Act of Parliament. For that is the position The question is not whether this lady is likely, adequately, and satisfactorily to
discharge the duties of a legal practitioner. If it were, then its solution would present few difficulties. The inquiry is simply whether she belongs
to the class to which the terms of the section in question refer. If she does, then she is entitled to be indentured, if she does not, she has no
such right, and the Court can give her none. And that being so, assistance must be sought elsewhere. The Legislature of the country is the
only source from which relief in a case of this kind can be obtained and to that quarter alone can representations be effectually addressed for
the bestowal of that equality of opportunity in regard to the practice of the legal profession which the applicant desires.
In my opinion the appeal must succeed. The decision of the Trial Court must be set aside, and an order entered dismissing the application.
Judgment
SOLOMON, J.: The substantial question raised in this appeal is whether a woman can be admitted and enrolled as an attorney of the Cape of
Good Hope Provincial Division of the Supreme Court of South Africa. The answer depends upon the meaning which is to be given to the word
person, as used in certain statutory enactments regulating the admission of attorneys in that Court. The word is an ambiguous one, which,
prima facie, includes women as well as men, but which is often used with reference to one sex only. And the whole question in this appeal is
narrowed down to this point, whether in these statutes we should give the word the wider meaning as including women or the narrower one as
excluding them. The learned Judge in the Court below, after examining the Roman­Dutch law on the subject, was of opinion that under that
system there was no positive law disqualifying women from following the profession of attorneys, but that the Courts of Holland had laid down a
rule of practice that men only should be admitted in the roll of at­

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SOLOMON, J.
torneys who were entitled to practise in the Courts. He, therefore, came to the conclusion that this rule of practice could not affect the
provisions of the Acts of Parliament on this subject, and that in those Acts the word person should be construed in its ordinary sense as
including women as well as men.
I regret that I am constrained to differ from the learned Judge in this conclusion. In the first place, an investigation of the authorities satisfies
me that by our law women were disentitled by, reason of their sex from practising the profession of attorneys of the Court. On this part of the
case I do not, however, propose to add anything to the judgment which has been delivered by the Acting Chief Justice, which I have had the
opportunity of reading, and with which I entirely agree. But apart from this, even if the learned Judge were right in his view that women were
disentitled to be admitted on the roll of attorneys merely by virtue of the practice which had been laid down by the Courts of Holland, I should
still have come to the conclusion that on the construction of the statutes the word person as there used meant men only and did not include
women. The whole question really is one of interpretation, and as the word person is an ambiguous one, we must, in order to determine its
meaning in the Acts on the subject, place ourselves as far as possible in the position of those by whom the laws were made, and try to discover
their intention by reading the Acts in the light of the subject matter, the context, and the law and practice existing at the time.
Now the first provision on the subject is that contained in section 20 of the Charter of Justice, which is as follows:­
"And we do further authorise our said Supreme Court to approve, admit, and enrol as such attorneys, solicitors or proctors as aforesaid, such
and so many persons as may be instructed within our said Colony in the practice and knowledge of the law, by any barrister, advocate,
attorney, solicitor, or proctor duly admitted to practice in the said Court, and which persons shall be so approved, admitted, and enrolled
according to and in pursuance of any general rule or rules of Court, to be for that, purpose made in manner hereinafter directed."

1912 AD p637

SOLOMON, J.
In connection with this we must read the 149th Rule of Court, which was made under that section, and which it is unnecessary to set out at
length. Lastly, reference must be made to section 3 of Act No. 12, 1858, which reads as follows:­
"Every person who shall, previously to the time of his application to be approved, admitted and enrolled an attorney of the Supreme Court, have
obtained either of the certificates in law and jurisprudence in the sixteenth section of the said Act mentioned, shall, upon having actually served
as an apprentice or clerk, by contract in writing, to any advocate, attorney, solicitor, or proctor, throughout the term of three consecutive
years, be eligible to be approved, admitted and enrolled an attorney of the Supreme Court, as fully and effectually, to all intents and purposes,
as any person having been bound and having served for five years is eligible to be approved, admitted and enrolled an attorney, by virtue of the
20th section of the said Charter of Justice and the 149th rule of the Supreme Court."
These are the important laws on the subject of the admission and enrolment of attorneys, and it is upon the construction of them that the
decision of this appeal depends. Now it appears to me that the central fact which we have to bear in mind in approaching the consideration of
these enactments, is that from time immemorial men only had been admitted and enrolled as attorneys of the Court. It matters not whether it is
the Courts of England or of Holland with which we are concerned, the same fact meets us at the very threshold of the inquiry. For it is not open
to doubt, and was not questioned in argument, that in neither country is there a single case on record where a woman has been admitted as an
attorney. That is a fact which must have been well known to those who made the laws in question, to the King in Council by whom the Charter
of Justice was enacted, as well as to the Parliament of the Cape Colony by whom Act No. 12, 1858, was passed. In both cases the Legislature
was dealing with the same subject, the admission of attorneys, and laying down rules as to the qualifications which should in

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SOLOMON, J.
future be required of those who applied for such admission. And in my own mind, trying to place myself as far as possible in the position of those
by whom the laws were made, and in view of the central fact that at that time the invariable practice for centuries had been to admit men only
to the profession, I feel not the least doubt that the Legislature was contemplating men only, was legislating for men only, and had no thought
of introducing any change into the well­established practice of the Courts. What they had in mind was not to alter the description of the
persons who were thereafter to be entitled to admission as attorneys but merely to deal with the qualifications which in future would be
required of those men who applied for admission. It is inconceivable to me that if the Legislature had intended to introduce so great a change
and to throw open the doors of the profession to women that it would not have done so in clear and unambiguous language, instead of leaving
it as an inference to be drawn from the use of the word person, which might or might not include women as well as men. No doubt, if a word is
capable of only one meaning, we should have to give effect to the language used by the Legislature, even if we felt serious doubts as to
whether it really intended what it had said but when a word is capable of bearing equally well more than one meaning, then we are bound to
enter as far as we can into the mind of the Legislature, and so determine in which sense the word was really used. And if I do that, I feel not
the least doubt that when the Legislature used the word person, it meant male person, for it was thinking only of men, and was merely laying
down the qualifications which in future would be required of men desiring to be admitted as attorneys.
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MABANGWE of the Charter of Justice, where it is quite clear that the
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capable of only one meaning, we should have to give effect to the language used by the Legislature, even if we felt serious doubts as to
whether it really intended what it had said but when a word is capable of bearing equally well more than one meaning, then we are bound to
enter as far as we can into the mind of the Legislature, and so determine in which sense the word was really used. And if I do that, I feel not
the least doubt that when the Legislature used the word person, it meant male person, for it was thinking only of men, and was merely laying
down the qualifications which in future would be required of men desiring to be admitted as attorneys.
And this impression is strengthened by reference to some of the preceding sections of the Charter of Justice, where it is quite clear that the
word is employed in its narrower, and not in its wider sense. Thus in section 15, which provides for the appointment of a Registrar and a Master
of the Court, there can be no doubt that the word person there means males only. So also in section 18, which empowers the Court to admit
any per­

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SOLOMON, J.
sons to practise as barristers, who had previously been actually admitted to practice as advocates in the Supreme Court, it is manifest that the
word in that section means men, seeing that no woman had ever been admitted to practise as a barrister. And the same may be said of the use
of the word in section 19, which provides for the admission as attorneys of any persons, being attorneys of the Courts at Westminster or Dublin,
or proctors in any Ecclesiastical Court in England or Ireland, or writers to the Signet in Scotland, or proctors or notaries in the former Supreme
Court of Justice of the colony for here again no woman had ever been admitted to practise in any of those capacities. When, therefore, we
find that in sections 18 and 19 the word person undoubtedly means male person, it makes it all the more probable that in the very next section,
the 20th, with which we are concerned in this case, the word was used in the same sense. And if that be so, it follows, I think, as of course,
that in Rule 149, which was framed under the provisions of the aforesaid section, the same meaning must be given to the word. Nor can I see
any reason for thinking that in the subsequent Act, No. 12 of 1858, the Legislature had any thought of opening the door of the profession to
women, their whole object being to make further regulations regarding the qualification required of men who in future might apply for admission
as attorneys.
Apart then altogether from the question whether or not women are by common law eligible to practise the profession of attorneys, and mainly
on the ground of the immemorial practice of centuries, I am of opinion that the word person in these enactments must be construed in
accordance with that practice, and must, therefore, be taken to mean men only and to exclude women.
This is the view which was taken by BRISTOWE, J in the Transvaal in the case of Schlesin v Incorporated Law Society (1909, T.S., p. 363) in
construing section 11 of the Administration of Justice Proclamation. The section is not identical with the provisions in the Cape Colony on the
same subject, but substantially the question which he had to determine was the same as that which is now before us. He came to the
conclusion that women

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SOLOMON, J.
were not included under the term person, and in his judgment he relies mainly upon the long established practice not to admit them. A similar
question came before the Scottish Law Courts in the case of Hall v The Incorporated Society of Law Agents (38 Sc. L.R. 776) upon the
application by a woman to order the society to enrol her for the first examination, which has to be passed by persons who intend to become law
agents. In that case, also, the decision turned entirely upon the question whether women were included in the meaning of the word "person," as
used in the 7th section of the Law Agents Act, 1873. Four of them held that the word "person" being an ambiguous term, must be construed in
accordance with inveterate usage. "Accordingly," they say, "we interpret the word as meaning male person, as no other has ever been admitted
as a law agent." Five of the judges expressed the following opinion: "We think that before the Act of 1873 women were not eligible to be
appointed law agents, and that they are not made eligible by that Act."
This case is a strong authority in support of the opinion which I have expressed, as the question to be considered was substantially the same
as that which is raised in the present appeal. My view, therefore, on the whole case is that even assuming the Judge to be right in his view of
the law, the immemorial practice of the Courts for many centuries was not intended to be changed, and has not been changed, by the statute
on the subject in the Cape Colony that an important change of this nature is a matter for, the Legislature to deal with, and that, until the
Legislature has clearly and unequivocally made provision for the admission of women as attorneys, we are bound to follow the established
practice. I therefore agree that the appeal should be allowed.
Judgment
DE VILLIERS, J.P.: The question for the Court to decide is what the law is, not what the law ought to be. Now it may at once be conceded
that when the statute says, "no person . . . . shall be admitted as an attorney or notary" the word "person" is wide enough to embrace women
as well as men. Whether it does must be de­

1912 AD p641
DE VILLIERS, J.P.
termined by ascertaining the intention of the Legislature. For in employing the word "person" it must have been the intention of the Legislature
either to confine the exercise of these professions to men only or to include women as well. The statute itself does not throw away light upon
the matter, and in the absence of any other or further indication of its intention on the part of the Legislature, we have to look at the history of
the subject. It will serve no useful purpose for me to trace the history of legislation and practice in this regard at any length from earliest times.
Suffice it to say that all the writers on Roman­Dutch Law base the practice of the Dutch Courts largely on the Edict of the Praetor. (Digest, 3,
1, de postulando.) Accordingly we find that inter alios boys under 17 years of age were excluded from the profession of attorneys or advocates,
as also women, the deaf, and the blind. The later Christian Emperors introduced further restrictions, which were also adopted into Dutch
practice: pagans, Jews, pronounced heretics, persons, for example, who deny the Trinity. (Huber Hed. R. 1, XIX, 3, 4, 5 & 6.) 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 the 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 opinion that the answer must be in the
negative. No doubt many of the disabilities under which women have laboured in the past have been abolished. The onward march of civilisation,
new needs of society and of women, fresh burdens upon all alike women as well as men, have called for remedial legislation in various directions.
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. Bearing this
outstanding fact in mind, with which the Legislature must be considered to have been acquainted, it is not unreasonable to

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DE VILLIERS, J.P.
expect that if the Legislature had meant women as well as men in future to be admitted as attorneys and notaries, it would have said so in plain
language. And while our law as daily administered in our Courts imposes disabilities upon certain classes of women, and holds others privileged, it
is impossible to say that the prohibition on the ground of sex has become obsolete. For these reasons I agree that the appeal ought to be
allowed.
Appeal allowed accordingly.
Appellant's Attorneys, VAN ZYL & BUISSINNE. Cape Town.
Respondents Attorneys, FAIRBRIDGE ARDERNE & LAWTON, Cape Town.

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