The need for legal sector change is at the core of the Legal Sector Code (LSC), and it is a legitimate exercise of statutory power to achieve it, Justice Minister Mmamoloko Kubayi's lawyer told the Gauteng High Court, Pretoria.
Lawyer Zinzile Matebise SC on Wednesday asked the court to dismiss the application by the country's four biggest law firms seeking to overturn the LSC.
The firms Denys (formerly Norton Rose Fulbright), Bowmans, Weber Wentzel & Werksman are asking the court to Review Sector-Specific B-BBEE (Broad-Based Black Economic Empowerment) Framework for the South African Legal Profession Gazetted by Park Tau, Minister of Trade, Industry and Competition in September 2024.
According to him, this is irrational, impractical and illegal and will not bring about change.Matebise argued that the bid to delegitimize the LSC is not because it is unlawful, but because it imposes meaningful and necessary targets that challenge the applicants' slow pace of change within their structures and seek to ensure that they are intentional about achieving the transformation of the legal profession.
“The applicants' challenge is not rooted in any legitimate process or genuine concern for rational policy. It is a self-interested attempt to maintain the status quo that benefits the applicants commercially”.
He said that under the existing common code of good practice, applicants have been awarded and have maintained Level 1 B-BBEE status; Highest possible rating. This demonstrates little or no change, particularly with respect to participation by Black women and specific, lucrative areas of law.
Matebise said the minister feels strongly that transformation of the legal profession is a constitutional imperative. “The LSC is the product of an extensive, multi-year consultation process involving the entire legal sector. It was developed to address unique and persistent inequalities within the legal profession – an area where generic codes have proven wholly inadequate”.
Matebiz argued that “the fact that applicants can obtain Level 1B-BBEE status under the generic code despite clearly poor changes in senior ownership and management is the most powerful evidence justifying the need for a new, sector-specific code.”
“The mere fact that the impact of the LSC will weigh more heavily on some law firms than others is not a basis for review. It is to be expected that any transformation measure will have negative consequences on those entities that have not adequately transformed,” he told the court.
He accused the applicants of failing to provide the court with necessary data on their own conversion. “They disclose global figures for black ownership but withhold details for black women. They say nothing about how many of their black peers practice in particular commercial sectors compared to traditional sectors”.
Matebiase said that without this, his claims that the LSC's goals are unattainable are imaginary and self-serving. “The The legal profession is a major gateway to the judiciary and the economy. The continued lack of change at senior levels, especially in large commercial companies, undermines the constitutional project. LSC is a rational and proportionate instrument Talk about it”.
Arguing on behalf of Minister Tau, lawyer Fana Nlane said the Minister is empowered and mandated by law to take certain steps to promote economic transformation. “The LSC was developed to achieve the objectives of the B-BBEE Act within the legal sector or the legal profession. It aims to address the inequalities resulting from the systemic exclusion of black people from meaningful participation in the economy to access South Africa's productive resources, economic growth, job creation and poverty alleviation in the legal sector”.
According to him, there are enough common commercial and business characteristics across the legal sector to make it feasible and appropriate to develop a sector-specific code to address the unique characteristics of the legal sector.
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