The Legal Practice Council (LPC) has defended the new government policy aimed at transforming the legal sector, saying top law firms fighting it want to preserve a status quo that favours a privileged minority.
The broad-based BEE legal sector code, which replaces the generic BEE code policy, was implemented in September 2024 and triggered the biggest legal battle within the legal fraternity.
Top law firms Norton Rose Fulbright SA, Bowmans, Webber Wentzel and Werksmans initiated the legal challenge at the Pretoria high court to have the policy reviewed and declared unconstitutional.
The LPC, one of the drafters of the policy, this week was scathing in its opposition to the application.
“The applicants’ position, while couched in constitutional language and technical points, is in substance an attempt to preserve a status quo that favours [a] privileged minority and works heavily against [the] marginalised majority,” said LPC chair Pule Seleka in court papers supporting the policy shift.
The firms argue the policy targets would be “impossible” to meet and could cause them to lose billions in contracts with big banks and the public sector.
The legal sector code requires firms to increase black ownership, management, control and procurement.
Seleka said the legal sector in the past 30 years has done little to reverse apartheid’s unfair discrimination against black professionals.
“SA’s legal profession today still bears the imprint of an exclusionary past. By the applicants’ own admissions, the country’s largest commercial firms remain approximately 72% white-owned,” he said. “Despite the constitutional imperative to achieve substantive equality, not to mention the LPC’s statutory obligation to promote transformation, the top six law firms have failed to take meaningful steps to advance transformation.”
While the large firms have top scores under the generic codes policy, Seleka argues the generic policy did not transform the legal sector.
“The applicants profess to be at the ‘forefront of transformation’ and point to their level 1 certificates as proof. However, those certificates reveal more about the generic scorecard’s inadequacies than about genuine transformation,” he said.
“Upon review of the generic codes, it was determined that a metric that allows a firm to remain 72% white-owned while awarding the highest empowerment status is not sustainable for the advancement of transformation.”
Seleka dismissed in his arguments the notion that the legal sector code was “drastic and had impossible targets”.
“The applicants frame the LSC as drastic and impractical. In truth, its principal innovators are modest,” he said. “These are not shortcuts, but concrete steps required for advancement of meaningful and substantive transformation of the legal profession.”
The generic code had several faults, he argued.
“The generic scorecard treats salaried partners as owners, counts non-legal managers towards management control and allocates 40 points to procurement in a sector whose supply chain is modest and whose real economic lever is the briefing of counsel.
“The result is a framework in which a firm may score full points without altering the demographic reality of ownership or the distribution of a high-value legal work both within the firm and in the briefing of counsel. The legal sector was created to be developed precisely to correct those distortions.”
Seleka was adamant the legal sector code would track actual power and opportunity within the legal practice.
He argued the firms were aggrieved because some of their submissions during the drafting process were not accepted, adding they were “attempting to force their will on the entirety of the legal profession through judicial intervention”.
He said some of the submissions were incorporated into the legal sector code — for example, the targets for management control were lowered and the period was extended from three to five years. “The provisions of the legal sector code were negotiated and drafted by the legal sector as a whole.”
Trade, industry & competition minister Parks Tau in defending the application is backed by the Pan African Bar Association of SA, led by former deputy director of public prosecutions Nomgcobo Jiba, the Black Conveyancers Association, National Association of Democratic Lawyers and the Black Lawyers Association.
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