The Legal Sector Code Is A Tool For Substantive Equality In Sa’s Legal Profession

As South Africa enters its 31st year of democracy, it’s useful to assess the transformation of the legal profession, a bastion of apartheid’s legacy. 

The profession’s structural conservatism has been well-documented, often perpetuating whiteness as an unexamined privilege. Joel Modiri in his PhD thesis, The Jurisprudence of Steve Biko: A Study in Race, Law and Power in the “Afterlife” of Colonial ­Apartheid, conceptualises whiteness not just as skin colour identity, but a position of entrenched unreflexive racial privilege, economic advantage and cultural dominance. 

Against this milieu, the Broad-Based Black Economic Empowerment (BEE) Legal Sector Code of Good Practice (LSC), issued in terms of section 9(1) of the Broad-Based Black Economic Empowerment Act 53 of 2003, as amended by Act 46 of 2013, must be evaluated. This legal measure marks a significant step towards aligning the profession with the constitutional imperative of substantive equality, constituting a profound act of constitutional restoration.

Under apartheid, the legal profession served as a bulwark of white privilege, with access to legal education, practice opportunities, and leadership roles predominantly reserved for white males. Decades later, these patterns of inequality persist, with black professionals, particularly women, facing systemic barriers to entry and advancement in the legal profession. Despite some demographic shifts, ownership disparities, skewed access to high value commercial work and biased briefing patterns endure.  The LSC’s objective of transforming the legal profession thus raises critical questions about substantive equality in our democracy.

Before delving into a nuanced analysis of the LSC, we should heed Steve Biko’s cautionary words about white privilege. Biko said: “We believe that the white liberals do not really understand what they are talking about. We believe that they are not really fighting for the kind of emancipation that we are envisaging. They might be genuinely motivated in thinking they are fighting for freedom, but we do not believe that their freedom is our freedom, and that the type of freedom they are fighting for is not necessarily the same as what we are fighting for.

“[T]he liberals are playing their old game. They are claiming a ‘monopoly on intelligence and moral judgement’ and setting the pattern and pace for the realisation of the black man’s aspirations [writers’ emphasis]. They want to remain in good books with both the black and white worlds. They want to shy away from all forms of ‘extremisms’, condemning ‘white supremacy’ as being just as bad as ‘Black Power!’. They vacillate between both the  black and white worlds, verbalising all the complaints of the blacks beautifully while skilfully extracting what suits them from the exclusive pool of white privileges. But ask them for a moment to give a concrete meaningful programme that they intend adopting, then you will see on whose side they really are.”

Following the enactment of the LSC, major law firms, namely Norton Rose Fulbright, Bowmans, Webber Wentzel,and Werksmans, approached the high court to challenge the enactment. Norton Rose contended that the LSC imposes unreasonable and impractical targets on law firms. Notably, the implementation of the LSC would significantly affect Bowmans, Webber Wentzel and Werksmans who hold Level 1 Broad-based BEE ratings under the Generic Codes and would drop to Level 6 or lower under the LSC. This raises questions about the firms’ vested financial interests in delaying the LSC’s implementation, as a lower rating would render them ineligible for state legal briefs.

Bowmans, Webber Wentzel, and Werksmans challenge to the LSC, as stated in their joint statement, centres on the argument that the code should be evidence-based, practical and tailored to the unique nature of the legal profession. They claim that the LSC disregards established principles of the generic codes that benefit black lawyers and fails to appreciate the vital role these firms play in training black professionals. Specifically, the firms argue that the 51% black ownership within five years is unrealistic, given the lengthy process of becoming an equity partner in a law firm (typically 10 to 11 years). They propose extending the implementation timeline to ensure stability and proper training of junior lawyers. 

But Webber Wentzel’s own data raises questions about the reasonableness of this argument, as they claim they achieved a 12% increase in black ownership in six years. It is curious that they deem a 14% increase in five years to be unachievable. Is this what Biko cautioned against regarding “setting the pattern and pace for the realisation of the black man’s aspirations”? The constitutional court’s answer, in a different context, in National Coalition for Gay and Lesbian Equality v Minister of Justice is “equality delayed is equality denied”.

The LSC should be viewed as a remedial measure under section 9(2) of the Constitution, which provides that “Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.” Moreover, it is the state’s obligation under section 7(2) of the Constitution to respect, protect, promote and fulfil the rights in the Bill of Rights. As former deputy chief justice Dikgang Moseneke in the constitutional court judgment of South African Police Service v Solidarity obo Barnard noted that affirmative action alone is insufficient; the state must intervene decisively to allocate resources fairly, and design effective, accountable and transformative measures.

Recently, in Peri Formwork Scaffolding Engineering (Pty) Ltd v B-BBEE Commissioner the high court was seized with a B-BBEE matter and the Office of State Attorney was the instructing attorney and there was not a single African lawyer. Judge Mandlenkosi Motha noted that it was disconcerting and inexcusable for organs of state to display such lack of appreciation of the imperative to have an African counsel. The presence of African counsel is not a favour, but an imperative for justice. It is clear that the learned judge was calling for substantive equality.

The constitutional court has consistently recognised that substantive equality requires more than just formal equality. Sachs J concurring with the majority in Minister of Finance v Van Heerden held that, “A substantive approach to equality eschews preoccupation with formal technical exactitude. It is algebraic rather than geometric, relational rather than linear. Its rigour lies in determining in a rational, objective way the impact the measures will have on the position in society and sense of self-worth of those affected by it. The critical factor is not sameness or symmetry, but human dignity, a quality which by its very nature prospers least when caged.” In the context of the LSC, this jurisprudence underscores the importance of urgent transformative measures to address the lingering effects of apartheid-era discrimination and promote meaningful change in the legal profession.

In Van Heerden, the constitutional court established a three-part test to evaluate whether restitutionary measures fall within the ambit of section 9(2). The test requires that the measure must: (i) specifically target a class of persons who have suffered disadvantage as a result of unfair discrimination; (ii) be designed in a manner that actively protects or advances the interests of such persons; and (iii) exhibit a rational and proportionate connection to the constitutional goal of achieving substantive equality. The constitutional court in Barnard held that “once the measure in question passes the test, it is neither unfair nor presumed to be unfair”. This framework provides a crucial guide for assessing the validity of the LSC.

The first question is whether the LSC is designed to protect and advance a disadvantaged class. The LSC was enacted to level the playing field between black lawyers and white people. Clause 7 of the LSC cites a 2014 research by the Centre for Applied Legal Studies and the Foundation for Human Rights, Statistics from the Legal Practice Council as of April 2023, and a 2021 LexisNexis study, which reveals the unadulterated inequality gap between white males and black people. These studies show that in most racially mixed law firms, or big law firms, above 72% partners/directors are white males and they own more than 75% of these firms. Contrastingly, black lawyers were restricted to 25% ownership in these firms. What also emerges is that limited access to a sustainable flow of quality instructions prevents black practitioners from building firms that can compete with large majority white-owned law firms. It is therefore appropriate for the LSC to direct its efforts toward black people (Africans, coloureds and Indians) who have been historically disadvantaged and who continue to face unfair exclusion from the legal profession, to the benefit and advantage of their white counterparts.

The second question, applying the Van Heerden test, is whether the LSC is “designed to protect or advance” those disadvantaged by unfair discrimination. According to the constitutional court in Van Heerden, this second question is satisfied if the measure is reasonably likely to achieve the end of advancing or benefiting the interests of those who have been disadvantaged by unfair discrimination. The studies cited above reveal a lack of diversity in large law firms, with white males continuing to dominate the profession, particularly in senior and top management positions. Black lawyers, especially black women as per clause 6 of the LSC, face significant challenges, including: limited access to quality work from private sector; discriminatory procurement by the private sector in terms of specialised work; inconsistent briefing patterns from the state; unequal access to senior positions; and limited skills development due to restricted access to specialised work.

The LSC seeks to, inter alia, ensure that black lawyers have both an economic interest in the legal profession and gain knowledge of specialised work. Specialised areas of law means those areas of law from which black people have historically been excluded, and remain largely excluded, or have limited exposure to, including, but not limited to: corporate and commercial law; intellectual property law; aviation law; insolvency and business rescue; business and corporate tax law; asset restructuring; mergers, acquisitions and takeovers; construction and engineering law; and, ironically, Broad-based BEE transaction advisory and related services. 

The final question, applying Van Heerden, is whether the LSC “promotes the achievement of equality” despite having casualties. Madlanga J writing for the minority in Minister of Constitutional Development and Another v South African Restructuring and Insolvency Practitioners Association (SARIPO) noted that avoiding these casualties will lead to pursuit of substantive equality proceeding at a glacial pace, rendering the goal of equality a mere chimera. The LSC must be assessed as a whole, considering the lasting effect of apartheid on black people. The LSC aims to promote equality by promoting transformation in ownership, control and management of legal practices, addressing underrepresentation and skills shortages, increasing procurement from black-owned and black women-owned LSMEs, enhancing enterprise and supply development, and monitoring progress through qualitative and quantitative methods. To curb manipulation of the system, the LSC criminalises initiatives which split, separate or divide an LSME with the intent of ensuring eligibility as an LSME or a new entrant enterprise.

Put differently, the LSC advocates for preferential procurement, as permitted by section 217(2) of the Constitution, and for enterprise development programmes aimed at benefiting all black lawyers.  Therefore, resistance to it stems from a desire to maintain white privilege and racial hubris infused with ignorance. As Biko noted, white liberals often claim to support change but are comfortable with the status quo. Biko said: “As a testimony to their claim of complete identification with the blacks, white liberals, call a few ‘intelligent and articulate’ blacks to ‘come around for tea at home’, where all present ask each other the same old hackneyed question ‘how can we bring about change in South Africa?’… Yet at the back of his mind is a constant reminder that he is quite comfortable as things stand and therefore should not bother about change … This is why blacks speak with a greater sense of urgency than whites.”

As we embark on the 31st year of our constitutional democracy, it is arrogant and ignorant to say “we have trained and employed X number of black lawyers”. Now the focus must be on the substance of equality. It is important to note that many legal racists self-identify as politically progressive and anti-racist. The “I have black friends” defence turns to “we have trained black lawyers”. This is racist denialism whereby whiteness sees itself non-responsible instead of irresponsible, and ignores that apartheid is the main cause of African poverty and the chasm in life chances experienced by Africans in comparison to the whites.

It must be viewed as an act of racial arrogance when, like in the case of case of Peri Formwork Scaffolding Engineering (Pty) Ltd v B-BBEE Commissioner, white counsel, when requested by a black judge to submit heads of argument blatantly refused and instead opted to file a memorandum, and goes on to write such in the following troubling tone: “You will note from the heading of this document that I do not intent submitting heads of argument as ordered/requested by yourselves, but, instead, will deal with the matter in this memorandum … ” [writers’ emphasis]. Unsurprisingly, Judge Motha viewed this as a perfect display of the deep-seated racial divisions still prevalent in South Africa.

The LSC unequivocally acknowledges the historical and systemic marginalisation of black legal practitioners, particularly in accessing high-value legal work. Through carefully crafted remedial interventions, the LSC seeks to rectify these disparities by enhancing black professionals’ entry into specialised legal fields, promoting sustainable economic empowerment through enterprise development, and ensuring equitable procurement opportunities. Rather than being mere window dressing or impermissible reverse discrimination, the LSC embodies a constitutionally grounded and necessary intervention giving practical effect to the transformative vision of section 9(2) and the broader egalitarian principles underpinning South Africa’s constitutional democracy. Justice Johann van der Westhuizen, in Barnard, reminded us that the benefits of injustice do not vanish simply because the direct wrongdoers are gone. Many today continue to benefit from systems of exclusion they did not create, but from which they continue to draw advantage. That, he said, cannot be ignored. And the writers agree, the true measure of our commitment to equality is not whether we claim not to discriminate, but whether we act to dismantle structures that continue to entrench the discrimination of the past. The LSC is one such act: nihil de nobis, sine nobis.

Sello Ivan Phahle is a lawyer and legal scholar. Thabo Mhlanga is an independent legal analyst