One of SA’s top law firms has accused trade, industry and competition minister Parks Tau of acting unreasonably by not addressing his predecessor’s concerns before he signed the government’s policy on the transformation of the legal sector into law.
Tau promulgated the broad-based BEE legal sector code, which replaces the generic BEE code policy, in September 2024 and triggered a legal battle with large law firms.
Law firms Bowmans, Webber Wentzel and Werksmans, which applied to the high court in Pretoria this week to intervene in the legal challenge initiated by Norton Rose Fulbright SA (NRF), contend that Tau, in promulgating the policy, turned a blind eye to his predecessor Ebrahim Patel’s concerns.
The law firms want the implementation of the legal sector code to be reviewed and declared unconstitutional.
Under the new policy, large firms have been handed targets to increase black ownership. The legal sector code requires law firms to have 30%-50% of black legal practitioners as equity directors in five years.
The legal sector code has been in the making since 2020, and Patel left office without signing it because he had concerns, which he briefed the Legal Practice Council about in June 2024.
“Until he was replaced by Tau as the minister, Patel had declined to promulgate the legal sector code until various pointed queries and areas of concern were addressed,” the law firm court papers read.
The firms argue that Patel queried whether the deviations from the generic codes were suitably justified. They said the legal sector code, unlike the generic codes, did not consider employees who were not legal practitioners in the ratings. That could result in them having poorer BBBEE ratings, they said.
“Minister Tau acted unreasonably and/or irrationally by taking no steps to satisfy himself that his predecessor’s concerns relating to the legal sector code had been addressed.
“Shortly after assuming office, [Tau] was presented with an updated deviations memorandum, which purported — but did not in fact — address his predecessor’s concerns about the lawfulness of the legal sector code.
“It appears from the record that minister Tau took no steps to satisfy himself that these queries had been properly addressed and that the legal sector code could, in fact, lawfully be issued.”
The law firms have said they find the policy problematic and fear it could cause them to lose contracts with big banks and the public sector because of possible poor BBBEE ratings.
They argue that it would be impossible to meet the legal sector code requirements within the set timelines.
“The timeline for the achievement of the code’s black ownership targets is problematic, with the legal sector code doubling black ownership targets to 50% by year five.”
The contentious policy was one of the first Tau has had to deal with within his first few months into the job because organisations representing African lawyers took the department and Patel to court accusing of stalling the government’s transformation agenda.
Department spokesperson Bongani Lukhele defended Tau's actions, saying transformation was one of the key priorities of the GNU and the minister was determined to implement the legal sector code.
“Transformation is one of the key priorities of the GNU, and therefore the minister is still defending the position to implement the legal sector code,” he said.
“It is important to note that the legal sector code aims to address transformation challenges in the legal profession, which also promotes the objectives of the BBBEE policy.”
Pan African Bar Association of SA (Pabasa), led by former deputy director of public prosecutions Nomgcobo Jiba, the Black Conveyancers Association and the Black Lawyers Association have opposed the application.
The policy is important to address the injustices of apartheid policies, which created inequalities in the country’s socioeconomic landscape, BLA has argued.
“The vision of the [code] is to transform the legal sector to give effect to the objectives of the constitution of promoting effective and sustainable economic participation in the general economy of SA and in particular, the legal profession,” BLA court papers read.
The law firms Bowmans, Webber Wentzel, Werksmans and Norton Rose Fulbright SA fall under the large firms’ criterion because they generate more than R25m annually and due to their employment base.
Webber Wentzel has more than 850 staff members, Bowmans has more than 750 and Werksmans has 127 partners, 73 senior associates and associates, as well as 47 candidate attorneys and professional nonlawyers with a range of qualifications.
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