Offices of the state attorney around the country paid more than R100m to six private law firms between 2019 and end-March 2024, justice minister Mmamoloko Kubayi has revealed.
The minister provided the information in a written reply to a parliamentary question by EFF MP Vuyani Pambo, who wanted to know how much was paid to each of the list of law firms he provided.
Black lawyers have complained bitterly over many years about the slow pace of transformation in the legal sector that is dominated by the big five law firms: Bowmans; Cliffe Dekker Hofmeyr; ENSafrica; Webber Wentzel; and Werksmans Attorneys.
Kubayi said the office of the state attorney in Pretoria, which handles most of the litigation on behalf of national government departments, paid six privately owned law firms between 2019/20 and 2023/24 as follows: Werksmans (R51m), Webber Wentzel (R23.8m), Norton Rose Fulbright (R11.5m), Bowmans Gilfillan (R6.8m) Cliffe Dekker Hofmeyr (R5m) and ENSafrica (R1.3m).
The Cape Town office of the state attorney paid R226,174 to Bowmans Gilfillan in 2023/24 and the Mthatha office paid R19.3m to Norton Rose Fulbright between 2019/20 and 2021/22.
There are 13 state attorneys offices in the country but Kubayi said the remaining 10 had reported that no matters were outsourced to the list of privately owned law firms provided.
A broad-based BEE (BBBEE) code of good practice was issued last year by the department of trade, industry and competition to address the slow pace of transformation in the sector and ensure black practitioners have enhanced ownership of law firms. In terms of the new policy, which replaces the generic BEE code, large firms will be required to meet targets to increase black ownership, management control and procurement.
Firms must achieve 30%-50% voting rights for black practitioners, the same range for executive management roles, in the next five years and source 40%-60% of legal services from black advocates.
A government gazette about changes to the policy highlighted the challenges faced by black lawyers, including being handed inferior work assignments, facing discrimination in procurement, inconsistent briefing patterns and being overlooked for senior roles.
Norton Rose Fulbright SA (NRFSA) is contesting the BBBEE legal sector code in the Pretoria high court, arguing it is unlawful and unconstitutional. After discussions with the ministry of trade, industry and competition, it relinquished its bid for an interim interdict to have the implementation of the code suspended until the outcome of the case.
The firm says the legal sector code “imposes targets that are unreasonable, impractical and unrealistic, given the nature of large law firms”. They would also dramatically reduce NRFSA’s BBBEE scorecard from level one to level six, which would “severely affect its ability to attract local clients and all but extinguish its ability to obtain work directly from the state”, NRFSA director Brent Botha said in his affidavit.
Botha said the code “changes the manner in which ownership, management control, enterprise development and skills development are measured”.
Moreover, it imposed higher targets on black ownership, which have increased from 25% under the generic code to 30% under the legal sector code in year one, and 50% in year five; and black women ownership has increased from 10% to 15% in year one, and 25% in year five.
Botha warned the firm’s relationships with major banks could take a hit, saying NRFSA was required to keep a specific rating to remain on the legal panel of major banks. He added that if it failed to do so, it must inform the bank and submit an improvement plan. “In addition, 20% of the bank’s scorecard rating is based on the law firm’s BBBEE level,” he said.
Business Day has reported that Black Business Council (BBC) CEO Kganki Matabane described NRFSA’s legal challenge as a “right-wing opposition”. The council is an independent membership-based organisation for lawyers.
“The legal sector code is an important intervention to transform the legal sector, which, like other sectors in the economy, is still characterised by structural inequality inherited through apartheid. Economic transformation, at its heart, is about ensuring equality for black people,” he said.
“Opposing transformation is effectively arguing for the status quo — structural inequality to remain. Norton Rose and AfriForum’s opposition to the legal sector code should be seen in this light and must be condemned. We urge ministers Parks Tau and Mmamoloko Kubayi to defend the right of black lawyers to access the same work as white law firms.”
With Sinesipho Schrieber
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