The Legal Sector Code: A Necessary Step Towards Transformation

By Thabo Masombuka

The allegations, insinuations, and propositions made by the SA unit of Norton Rose Fulbright (NRF) in their court papers while seeking to challenge the gazette by the Minister of Trade, Industry & Competition are not only absurd, but point to the increasing culture of opposition of government's pro-transformation policies by the beneficiaries of the status quo, that simply are opposed to the inclusion of black people in the mainstream economy of this country.

Sadly, these beneficiaries of the prevailing status quo continue to be white and male dominated businesses.

It therefore comes as no shocking surprise that the likes of AFRI FORUM – renowned for their protection of minority racist interests – would be the first to come out in support of the attempt to set aside what is otherwise a progressive policy code that will serve as an instrument to promote transformation that is envisaged in the Legal Practice Act (LPA).

The LPA was promulgated as early as 2014, yet no such challenge was mounted and initiated by the likes of NRF. Yet the LPC is merely an instrument to advance Section 3 (a) - (b) of the LPA, in so far as it promotes transformation and restructuring of the legal profession.

In their court papers, not only do NRF, as the main applicants, make factual and legal errors of arguments, they also imply that Minister Parks Tau – supported by the Ministry of Justice & Constitutional Development – in signing and publishing the gazette on the 20th September 2024, acted irrationally without fully applying his mind.

They continue implying and suggesting that the LSC is unconstitutional and discriminative in its contents. They want the courts to declare a transformation policy/code as invalid, unlawful, and unconstitutional. If this were to happen, then it would be a sad day for economic transformation in this country.

This absurd proposition is often the trend and attributed to those who are not committed to changing the access to justice, ownership, and briefing opportunities for black practitioners and people.

The LSC is not a product of a thumb-sucked process. It was gazetted as a result of a robustly extensive process (of over three years) of drafting, engagement, and consultation with legal practitioners across the length and breadth of the country, with Norton Rose included.

It therefore cannot be correct that the LSC introduces, as alleged and argued by Norton Rose, "unreasonable and impractical" requirements that will be "impossible for legal practitioners and firms" to implement, when it is these very firms, through their industry associations, that have advocated for its (the LSC) promulgation and gazette.

The LSC will facilitate the change in the ownership patterns of the sector, increasing representation in the skewed briefing patterns, compelling state owned enterprises to use black practitioners, increasing skills, enterprise and supplier development in exclusive legal areas of practice, in a manner that is suitable for law firms and advocates.

The resistance and opposition to these initiatives, can only be made by those who are not only opposed to broad transformation, but also seek to tick the box, do only the bare minimums which are provided for in the Generic BBBEE Codes – which the LSC justifiably departs from.

In essence, Norton Rose and 6 other so-called top law firms, whose business model and structure are designed along corporate models, are, in fact, looking to receive the benefit of empowerment recognition (BBBEE points) without committing to, spending and embracing substantive transformation initiatives that result in the long-term benefit of black practitioners and the sector.

These are the real and true reasons behind the intended court application by Norton Rose and the opponents of economic transformation. Nothing more.

It is by now common cause that the LSC, as gazetted by the Minister last year, is largely intended to radically introduce a number of measures aimed at levelling the playing field in the legal profession. These includes, but are not limited to, the provision of financial assistance and support – through the Legal Sector Transformation Fund (The LSTF) – to black candidate legal practitioners during their training and pupillage, including the provision of training allowances and stipends – such will inadvertently extend to rural women who are new entrants, and those on maternity. The support for legal start-up firms, the broadening of the briefing patterns by the state and its entities. These are amongst other important new provisions that Norton Rose is opposing through their intended court application.

The public needs to understand and appreciate that this review and set aside application is, in fact, not really about the technical measurement and verification implications that Norton Rose is raising, but about the attempt to derail transformation, refusal to allow entrance of more black lawyers in the profession and enable equitable opportunities to legal work. That is what this court application is about. The transformation of the legal profession as a whole, including the equitable allocation and distribution of commercial work by corporate clients and state departments alike, is a non-negotiable imperative for the country's deracialisation of the economy and the promotion of access to justice for the poor. These are values already espoused in the country's constitution that Norton Rose and their AFRI FORUM counter-parts purport to be relying on.

It is for this reason and many others, that the Legal Practice Council (LPC) who is the custodians of LPA, with the responsibility to drive transformation, and creating an enabling environment for inclusive growth in the sector, had to be in the forefront of drafting and requesting the Minister to gazette the LSC.

The Legal Sector Code is therefore a full demonstration of the commitment by the industry and the state towards transformation, inclusive growth, and access to justice.

* Thabo Masombuka is a legal practitioner and technical adviser in the drafting of the LSC and part of the Steering Committee that drafted the LSC.

** The views expressed do not necessarily reflect the views of IOL or Independent Media.