Advocates bodies to defend Legal Sector Code

The General Council of the Bar (GCB) and the Pan African Bar Association (Pabasa) will intervene in a court case to defend the Legal Sector Code – a B-BBEE code dubbed a transformation game-changer for the legal profession, says the Sunday Times. As reported in Legalbrief Today, heavyweight law firm Norton Rose Fulbright SA (NRF) has gone to court to challenge the code as unlawful and unconstitutional. ‘The outcome of the application will have a profound impact on the legal industry or profession as a whole,’ said Pabasa’s national deputy chair Nomgcobo Jiba in an affidavit filed in January. The code, which came into effect in September, sets ambitious empowerment targets for the legal sector, including a 50% ownership target by year five – the highest ownership target in any sector code, said NRF in its court papers. With legal bodies pulling in different directions, the case is likely to lay bare existing fractures in the legal community on the contentious issue of transformation in the sector. While there has been progress, big firms remain majority white-owned, though they have managed to shore up their BBBEE status through other measurables, such as skills development, enterprise and supplier development and socioeconomic development. Under the code, the status of big firmscould drop. In court papers NRF said its status would drop from a level one contributor to a level six contributor. ‘This will ... severely affect [the firm’s] ability to attract local clients and all but extinguish its ability to obtain work directly from the state,’ said NRF’s CEO Brent Botha in his affidavit to the Gauteng High Court (Pretoria).

The GCB has also struggled with transformation, particularly at the top. A majority of senior counsel at GCB-constituent Bars remain white men. The GCB’s most recent stats show that out of 590 senior counsel, 412 are white men. However, GCB chair Ahditya Kissoon Singh SC confirmed last week that the GCB had resolved to intervene in the case to defend the code. It was not a unanimous decision, he said. The Sunday Times notes the president of the National Association of Democratic Lawyers (Nadel), Mvuzo Notyesi, said Nadel would also intervene. SA’s legal sector had long been marked by structural inequality and the code was a ‘crucial mechanism to correct this legacy,’ he said. The Black Lawyers Association has also been reported as intending to enter the fray. The Minister of Trade & Industry, the Minister of Justice and the Legal Practice Council are yet to file their papers. Law firm ENS said it would not intervene in the NRF litigation, though the firm was of the view that some provisions in the code were ‘inconsistent with certain of the laws and rules that regulate our profession’. ENS said it preferred ‘a consensual revision of the code without the need for litigation. Should this not be possible, then a judicial review may be required’. Webber Wentzel said the firm was ‘closely monitoring developments’ and would ‘continue to assess the situation and consider appropriate steps as matters unfold’.