Illustration of a hammer used once a judge has reached a verdict in a case.
LAW firm Norton Rose Fulbright’s (NRF) court challenge of the Legal Sector Code has been described as an attempt to preserve the “devastating effect of the persistence of racial discrimination” suffered by Black legal practitioners.
This is according to non-profit organisation, Basadi Ba Molao which trains female lawyers, as NRF prepares for a court order setting aside the Legal Sector Code as it relates to Broad-Based Black Economic Empowerment (B-BBEE), a piece of legislation created to promote transformation that is envisaged in the Legal Practice Act (LPA).
The matter before the Gauteng High Court has been brought in two parts. Part A seeks to suspend the operation of the Legal Sector Code, pending the final determination of part B which seeks to review and set aside the Legal Sector Code and have it declared invalid.
The Legal Sector Code, according to the Legal Practice Council (LPC), is important in addressing the structural challenges faced by black practitioners, especially black women, as a result of historical inequalities.
Basadi Ba Molao condemned NRF’s application, saying: “We have first-hand knowledge about the devastating effect of the persistence of racial discrimination suffered by black legal practitioners. Black women legal practitioners are especially affected.
“Even though apartheid ended in 1994, it continues to pay dividends to the white community in all areas of the economy including the legal profession. Conversely its legacy continues to impoverish and disadvantage black people, including black lawyers. Black Economic Empowerment legislation is designed to stop racial discrimination and exclusion of black people. Transformation is therefore a mechanism for promoting equality for black people. It is a Constitutional imperative.”
The organisation said the legal profession currently consisted of a few large majority white-owned law firms who monopolise “lucrative, specialised work from an untransformed private sector as well as from large state-owned entities”.
“On the other hand, most black attorneys and advocates struggle to survive. At the bar, young black female advocates constitute the highest number of advocates forced to leave due to the lack of a sustainable flow of work. The Legal Sector Code was developed by the profession to remedy this injustice and secure equality for black practitioners.”
The LPC said that it would oppose Norton Rose’s application, as it held the view that the Legal Sector Code “represents an important milestone in the advancement of the legal profession”.
LPC Legal Sector Code Steering Committee chairperson, Christine Qunta said: “The LPC, as regulator of the legal profession, is enjoined by section 5 of the Legal Practice Act 28 of 2014 to promote transformation to achieve the goal of a transformed legal profession. The LPC facilitated the Legal Sector Code which was drafted and developed by the Steering Committee that consisted of representatives of key stakeholders in the legal profession.
“There is inadequate access to a sustainable flow of quality work from the private sector; discrimination by the private sector in terms of procurement of specialised work; inconsistent briefing patterns from organs of state and SOEs; unequal access to senior positions in racially mixed law firms, in particular in large law firms; and a lack of skills resulting from limited access to quality and specialised areas of work.
“Black Economic Empowerment is a policy by the government to reverse the effects of apartheid in all areas of the economy including the legal profession. Transformation is necessary to ensure that Black lawyers enjoy equality. They presently do not.”
Norton Rose CEO Brent Botha said while they recognised the importance of transformation in South Africa, their application sought for a “practical” Legal Sector Code to be implemented.
“As a Level 1 BBBEE contributor Norton Rose Fulbright South Africa recognises the critical importance of transformation in South Africa and we are committed to making a meaningful difference in our communities and the country at large.
“Our application seeks to advocate for the adoption of a practical, workable, and lawful Legal Sector Code that can be implemented effectively and equitably by all law firms. To be clear: we support the adoption of a workable and lawful Legal Sector Code. We remain steadfast in our dedication to playing a pivotal role in the transformation of South Africa’s legal sector and will continue to engage with key stakeholders to ensure that this shared goal is achieved,” said Botha.
In its court papers, the law firm argues that from the day the code is implemented they will drop from a Level One B-BBEE contributor to a Level Six B-BBEE.
“This will severely affect its ability to attract local clients and all but extinguish its ability to obtain work directly from the state.
“The black ownership targets in the Draft Legal Sector Code were not achievable or rational because they exceed the proportion of black people in the profession. The absence of any transitional period for the Legal Sector Code was punitive,” court papers read.
They also note the lack of an alleged strategy for B-BBEE and irrational specialised scorecards, among others.
Cape Times