Notes from South Africa: Reflections on Judge Kaye & Legal Reform

Today we are launching a new feature on our blog. Penelope (Penny) Andrews, our Trustee (2013-2016) and continuing Trustee Emeritus, has moved back to her homeland of South Africa to assume the position of Dean, Faculty of Law, University of Cape Town. Penny is the school’s first black dean, This follows another “first” for her; prior to assuming this position, Penny was the first female Dean of NY’s Albany Law School. She is a true pioneer with a fascinating story of how she rose in the era of apartheid to become a distinguished lawyer and educator. Here are her thoughts on another noble “first,” Hon. Judith S. Kaye.

Marilyn Marcus Executive Director

(NOTE: This article first appeared in South Africa’s Business Day)

I assumed the position of dean of the University of Cape Town (UCT) faculty of law earlier in January, the school’s first dean who is black. In this capacity, as a woman, I am joining an ever-increasing number of women and people of colour who have the status of being “a first”.

I came of age as a lawyer in SA during the dark days of apartheid. I left SA during the 1980s, an inexperienced, concerned yet optimistic young lawyer. I return to SA with three years of experience as the first female president and dean of New York’s Albany Law School (founded in 1861), and decades of experience as a professor of law at law schools in the US, Australia and Canada.

I am honoured by the position UCT’s law faculty has bestowed on me. I am especially excited by the opportunities the deanship affords me, esteemed colleagues, students, alumni and legal professionals in SA, to work together to improve our legal system and to join forces with others here to aid the country as it grapples with unmet and unfulfilled promises of our democracy and Constitution.

Two days after assuming my current position, Judith Kaye, the first female chief judge of the New York Court of Appeals, the highest state court in New York and one of the most prestigious courts in the US, died. The start of my new position and Judge Kaye’s death have made me pause to reflect on the intertwining of these two seemingly distant events and what they may forecast on the never-ending quest to reform the legal system, pursue justice and open up our country to all of its citizens.

After leaving SA, the focus of my legal work centred primarily on issues of human rights, racial equality, gender equality, and helping the poor to redress grievances, secure legal rights and obtain a fairer share of their country’s resources. These concerns and priorities were reflected in the work of Judge Kaye on her ascension to the New York Court of Appeals, and more dramatically when she became the chief judge of that court.

One of the first speeches I gave in Cape Town on arriving in November last year was at an annual dinner of the Western Cape chapter of the International Association of Women Judges. This was an especially impressive array of judges and magistrates. My remarks were directed to the role and status of women judges in the courts, the difference women judges make in the courts, and obstacles women face on the bench. These perennial questions, faced by Judge Kaye as well, are being addressed in the SA of today, and, I believe, will be addressed even more forcibly in future.

Judge Kaye was a formidable jurist in the US. I came to know and admire her, especially during the past three years when we both served on the board of the Historical Society of the Courts of New York, an institution she formed, whose mission is to preserve and promote the legal history and courts of New York.

Judge Kaye was instrumental in instituting reforms throughout the New York legal system, including the ethical training of lawyers, increased access for the poor in obtaining legal representation, legal education, establishing specialised courts and spearheading the creation of Adoption Now — a joint initiative of New York’s courts and child welfare system to eliminate barriers to the adoption of children. The scale of her influence is evidenced by many innovations she promoted, which have altered how courts in New York currently serve citizens of the state.

My acquaintance with Judge Kaye was part and parcel of my contacts with numerous other women judges in the US, including the other women judges who sat on Judge Kaye’s Court of Appeals. I should note that this court is rather unusual in having a majority of women. The incoming chief judge is also a woman.

While working with these women jurists, I noted that legal reforms were a principal preoccupation of theirs. This is a preoccupation I share with them. I also learnt that opening the legal system to women and to members of groups previously excluded goes hand-in-hand with instituting legal reform, promoting democracy and seeking justice.

In short, women and “minority” judges make a difference in our legal system.

Both in the US, under the able leadership of such judges as Kaye, and in SA, through the exceptional work of former Constitutional Court judges such as judges Yvonne Mokgoro and Kate O’Regan, and Judge Shehnaz Meer on the Land Claims Court, we see women judges joining many male judges in making substantial contributions in areas as diverse as family law, criminal law, employment law, property and land law, and constitutional law. These contributions have been especially visible for the general public with respect to sexual harassment, marital rape, marital property and unpaid work.

These developments and my experiences here and abroad shape my vision of the necessity of reforms throughout the legal system. First and foremost is continuing reform to realise the transformative vision set forth in SA’s Constitution, especially in the Bill of Rights. Reforms in the areas of legal education, legal training, the practice of law, advancing diversity in the legal system, increasing access to the courts, securing equality across the country and protecting democratic rights and values are the keys to achieving this overarching goal.

The contributions of women judges and respect for Judge Kaye’s legacy are, for me, sources of inspiration, or points of light. They stimulate me to practice, and preach, the need for continuing reform of the legal system. Judge Kaye’s death, sad as it is, provides an important moment of reflection.

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