1
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
In the matter between:
DENEYS REITZ t/a DENEYS
BOWMAN GILFILLAN INCORPORATED
WEBBER WENTZEL
WERKSMANSINCORPORATED
and
MINISTER OF TRADE, INDUSTRY AND COMPETITION
SOUTH AFRICAN LEGAL PRACTICE COUNCIL
MINISTER OF JUSTICE AND
Case No: 2024-149523
Case No: 2025-033365
Case No: 2024-149523
First App licant
Second Appl icant
Third Applicant
Fourth Applica nt
First Respond ent
Second Respondent
Third Respondent
CONSTITUTIONAL DEVELOPMENT
ADVOCATES FOR TRANSFORMATION
AFRICAN LEGAL PROFESSIONALS ASSOCIATION
BASADI BA MOLAO EDUCATION AND TRAINING
SERVICES (PTY) LTD
BLACK CONVEYANCERS ASSOCIATION
BLACK LAWYERS ASSOCIATION
GENERAL COUNCIL OF THE BAR OF SOUTH AFRICA
NATIONAL ASSOCIATION OF DEMOCRATIC LAWYERS
PAN AFRICAN BAR ASSOCIATION OF SOUTH AFRICA
SOUTH AFRICAN WOMEN LAWYERS ASSOCIATION
and
JOHANNESBURG SOCIETY OF ADVOCATES
AND
In the matter between:
SOLIDARITY TRADE UNION
and
MINISTER OF TRADE, INDUSTRY AND COMPETITION
SOUTH AFRICAN LEGAL PRACTICE COUNCIL
2
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
Eighth Respondent
Ninth Respondent
Tenth Respondent
Eleventh Respondent
Twelfth Respondent
Amicus Curiae
Case no: 2025/033365
Applicant
First Respondent
Second Respondent
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
JUDGMENT
THE COURT
Introduction
3
Third Respondent
[1] This is a legal challenge to the Legal Sector Code of Good Practice ("the Legal
Sector Code"), promulgated by the Minister of Trade, Industry and
Competition ("the Minister") under section 9(1) of the Broad-Based Black
Economic Empowerment Act1 ("B-BBEE Act"), pursuant to his decision dated
20 September 2024.
[2] Two applications are before this Court in which the applicants seek an order
reviewing and setting aside the Minister's decision to publish the Legal Sector
Code and declaring the Legal Sector Code invalid, unconstitutional and of no
force or effect, together with costs.
[3] The first application, under case number 149523/2024,2 was instituted by
Deneys Reitz Inc t/a Deneys; Bowman Gilfillan lncorporated;3 Webber
Wentzel and Werksmans Incorporated ("the Deneys application").4 The
second application, under case number 2025-033365, was instituted by
Solidarity Trade Union ("the Solidarity application"). The Deputy Judge
1 Act 53 of 2003.
2 The application initially comprised Part A and Part B. Part A sought interim relief suspending the
operation of the Legal Sector Code pending the final determination of Part B. Part A has since been
withdrawn. Part B is the application to review and set aside the Legal Sector Code and to declare it
unconstitutional, invalid and of no force and effect.
3 Following a formal application, the citation of the first applicant (Norton Rose Fulbright South Africa
Inc) was varied in terms of Rule 42(1 )(b) and Rule 32 to Deneys Reitz Inc t/a Deneys.
4
President directed that the two applications be heard together because they
arise from the same decision and raise substantially the same issues. Save
for certain issues raised specifically by Solidarity, the relief sought in both
applications is materially the same.
The parties
Applicants
[4] The first applicant is Deneys Reitz Inc tla Deneys ("Deneys"). The second to
fourth applicants are Bowman Gilfillan Incorporated ("Bowmans"), Webber
Wentzel ("Webber Wentzel") and Werksmans Incorporated ("Werksmans").
They subsequently joined as intervening applicants.
[5] The applicants are all law firms duly registered in terms of the laws of South
Africa. They are prominent commercial law firms with substantial local and
international operations. Each law firm employs more than 100 partners in
South Africa. They fall within the category of Large Legal Sector Measured
Entities ("Large LSMEs") as defined in the Legal Sector Code and are among
the six largest law firms in South Africa, commonly referred to in the record as
the "top six". As such, the applicants form part of the 5% of law firms that are
targeted by the Legal Sector Code.
[6] Before turning to the Legal Sector Code, it is necessary to note that the Broad
Based Black Economic Empowerment ("B-BBEE") framework does not
compel legal practitioners or law firms to participate in B-BBEE or to achieve
a particular B-BBEE status level. Participation in this framework and, more
particularly, the Legal Sector Code remains entirely voluntary. Nevertheless,
a decision not to participate may have significant commercial consequences
for a law firm, as organs of state, public entities, and private-sector clients
frequently take B-BBEE status levels into account when making procurement
decisions. Deciding not to participate in the framework, or non-compliance,
may therefore place a law firm at a competitive disadvantage and exclude it
from opportunities where a particular B-BBEE level is prescribed.
5
[7] The four applicant law firms operate within the legal sector. Should they elect
to be measured for B-BBEE compliance, such measurement must be
undertaken in accordance with the Legal Sector Code, issued in terms of
section 9 of the B-BBEE Act. The Legal Sector Code is binding on organs of
state and public entities in terms of section 10 of the B-BBEE Act. As a sector
specific code, it prescribes the criteria against which law firms are assessed
for B-BBEE purposes and requires measured entities to report annually on
their compliance with the relevant sector council, which may be established in
terms of sections 10(3) and 10(4) of the B-BBEE Act.
[8] Solidarity (in case number 2025-033365) is a registered trade union. It
instituted these proceedings in its own interest; in the interests of its members;
and in the public interest. The three respondents in the Solidarity application
are: the Minister of Trade, Industry and Competition; the South African Legal
Practice Council and the Minister of Justice and Constitutional Development.
The South African Women Lawyers Association also opposed the application
and filed an answering affidavit.
Respondents (in case number 2024-149523)
The first respondent
[9] The first respondent is the Minister of Trade, Industry and Competition ("the
Minister"). In his representative capacity as head of the Department of Trade,
Industry and Competition ("the DTIC"), the Minister is authorised to issue
sector codes and is ultimately responsible for their promulgation under the B
BB EE Act. Section 9(1) of the B-BBEE Act authorises the Minister to issue
codes of good practice by notice in the Government Gazette. Section 9(5)
requires draft codes to be published for public comment before promulgation.
[1 0] As will appear more fully later in this judgment, although the applicants
pleaded nine grounds of review, the issues narrowed considerably during oral
argument. The principal challenge ultimately centred on the contention that
argument. The principal challenge ultimately centred on the contention that
the Minister failed to exercise a proper discretion in publishing the Legal
6
Sector Code. Because that challenge concerns the lawfulness of the Minister's
decision to publish the Legal Sector Code, the Minister is central to these
proceedings.
The second respondent
[11] The second respondent is the Legal Practice Council ("the LPC"), a statutory
body established in terms of section 4 of the Legal Practice Act5 ("the LPA")
to regulate the affairs of legal practitioners and candidate legal practitioners.
Although Deneys initially cited the LPC merely as an interested party and
sought no relief against it, this characterisation understates the LPC's role in
developing the Legal Sector Code. Because the Legal Sector Code was
developed to further the LPC's statutory transformation mandate, the LPC
played a central role in the process that culminated in its publication.
[12] The LPA establishes the LPC as the regulatory body for the legal profession.
Its objects extend beyond regulation and include the transformation and
restructuring of the profession in accordance with constitutional imperatives.
In particular, the LPA seeks to promote a legal profession that broadly reflects
South Africa's demographics, ensure equal opportunities for entry into the
profession, and advance the empowerment of historically disadvantaged legal
practitioners.
[13] Consistent with these objectives, section 5(a) of the LPA identifies, as one of
the LPC's principal objects, the facilitation of a transformed and restructured
legal profession, while section 6(1 )(b)(v) requires the LPC to develop
programmes aimed at empowering historically disadvantaged legal
practitioners. Against this statutory backdrop, the LPC became involved in
developing the Legal Sector Code.
The other respondents
5 28 of 2014.
7
[14] The third respondent is the Minister of Justice and Constitutional Development
("the Minister of Justice"). The Minister is cited in her representative capacity
as the head of the Department of Justice and Constitutional Development and
because of her interest in the outcome of these proceedings. No relief is
sought against this Minister, save for costs in the event of opposition.
[15] The fourth respondent is Advocates for Transformation , an organisation
established to advance transformation within the advocates' profession. The
fifth respondent is the African Legal Professionals Association, which did not
file a substantive answering affidavit but made common cause with the
position adopted by the first respondent. The sixth respondent is Basadi Ba
Molao Education and Training Services (Pty) Ltd ("Basadi"), a non-profit
organisation dedicated to advancing the interests of women legal
practitioners. Basadi's submissions focused principally on the slow pace of
transformation within the legal profession, particularly with reference to
women.
[16] The seventh respondent is the Black Conveyancers Association , a voluntary
professional association representing Black conveyancers and practitioners in
the property and commercial law sectors. This association advocates for the
advancement of Black-owned legal firms and contends that these areas of
legal practice remain among the least transformed in the profession. The
eighth respondent is the Black Lawyers Association, a long-established
professional association committed to promoting the interests of Black legal
practitioners and advancing transformation in the legal profession.
[17] The ninth respondent is the General Council of the Bar of South Africa ("the
GCB"), the representative body of the organised advocates' profession. The
GCB supports the Legal Sector Code as an important mechanism for
promoting transformation, particularly through equitable briefing patterns and
promoting transformation, particularly through equitable briefing patterns and
advancing Black advocates, especially Black women advocates. The tenth
respondent is the National Association of Democratic Lawyers ("NADEL"), a
professional association whose membership consists predominantly of Black
legal practitioners. NADEL's support for the Legal Sector Code is informed
8
mainly by its members' lived experiences and the practical need to address
structural inequalities within the legal profession.
[18] The eleventh respondent is the Pan-African Bar Association of South Africa
"PABASA"), a professional association representing Black advocates and
committed to transforming the legal profession.6 The twelfth respondent is the
South African Women Lawyers Association ("SAWLA"), an organisation
established to advance the interests of women in the legal profession.
SAWLA's submissions provided valuable insight into the position of women in
the legal profession, highlighting both the progress achieved and the
challenges that continue to impede substantive equality, particularly in the
allocation of legal work. The Johannesburg Society of Advocates was
admitted as amicus curiae.
[19] Before turning to the issues for determination, it bears emphasising that the
Court has considered all the submissions advanced on behalf of the parties.
Given the number of parties in these proceedings, many of the factual and
legal contentions converged. To avoid unnecessary repetition, the Court does
not attribute every submission to a particular party. Unless the context
indicates otherwise, references to the respondents' submissions should be
understood as encompassing arguments advanced by one or more
respondents. Where a submission is material to the issue under consideration,
specific reference is made to the relevant party. Greater emphasis has been
placed on the submissions of the applicants, the Minister and the LPC, given
their particular relevance to the issues for determination. The LPC played a
central role in formulating and developing the Legal Sector Code, but the
ultimate statutory power to decide whether to approve and promulgate the
Code vests in the Minister under section 9 of the B-BBEE Act. The Court has,
however, also derived considerable assistance from the submissions of the
remaining respondents, particularly in understanding the factual context in
remaining respondents, particularly in understanding the factual context in
which the Legal Sector Code was developed and the broader issues
concerning transformation within the legal profession.
6 PABASA, however , filed a notice to withdraw on 4 May 2026.
9
Preliminary points
[20] Two preliminary points were raised. The first concerns Solidarity's locus
standi, and the second concerns the non-joinder of the Charter Council.
Locus standi of Solidarity
[21] The three respondents in the Solidarity application challenged Solidarity's
legal standing to bring these proceedings. The LPC submitted that the Legal
Sector Code regulates ownership, management control, skills development
and procurement within the legal profession, rather than labour relations, and
therefore falls outside the scope of Solidarity's functions and interests as a
trade union. The LPC contended that Solidarity had failed to identify any
members who are legal practitioners and directly affected by the Legal Sector
Code, or to establish that it falls within any of the categories of litigants
recognised by section 38 of the Constitution. It further contended that
Solidarity is not itself a regulated entity subject to the Legal Sector Code.
According to the LPC, Solidarity's challenge amounts to no more than a
disagreement with the policy choices reflected in the Legal Sector Code,
rather than the vindication of any legally protected right. It accordingly
submitted that Solidarity has failed to establish standing in its own interest, on
behalf of its members, or in the public interest.
[22] Solidarity disputes the respondents' contention that it lacks standing to
challenge the Legal Sector Code. It submits that the objection is misconceived
both in fact and in law. According to Solidarity, a significant number of its
members are employed in the legal sector and are directly affected by the
Legal Sector Code, which affects their conditions of employment, opportunities
for promotion and ownership, and the legal services market in which they
operate. It explains that its Legal Network comprises more than 850 members
whose rights and interests are directly implicated by the impugned Legal
Sector Code. Solidarity further contends that the Legal Sector Code affects its
10
own interests as a registered trade union by limiting its ability to engage in
collective bargaining and consultation with employers on matters regulated by
the Employment Equity Act. It also submits that the Legal Sector Code limits
constitutional rights, including freedom of association and the right to freely
choose legal representation, thereby raising constitutional issues that extend
beyond the interests of entities directly regulated by the Code. In those
circumstances, Solidarity argues that it has a sufficient and direct interest in
the legality of the impugned decision to publish the Legal Sector Code and that
the respondents' restrictive approach to standing would improperly insulate
exercises of public power from judicial scrutiny and undermine the
constitutional principles of legality, accountability and the rule of law.
[23] Solidarity also relies on its position within the statutory framework established
by the B-BBEE Act. It submits that the Act expressly recognises organised
labour as a legitimate stakeholder in the development and implementation of
codes of good practice through its representation on the Broad-Based Black
Economic Empowerment Advisory Council, which advises on draft codes
(section 6(2)(b) of the B-BBEE Act). Solidarity further refers to its participation
in the public consultation preceding the promulgation of the Legal Sector Code,
during which it submitted written comments in response to an invitation
extended to legal practitioners, stakeholders and users of legal services. It
argues that the statutory recognition afforded to organised labour, together
with its participation in the consultative process, is difficult to reconcile with the
respondents' contention that it lacks a sufficient interest to challenge the
lawfulness of the Legal Sector Code once promulgated. It accordingly submits
that the preliminary objection to its standing should be dismissed.
[24] Legal standing is not a mere formality. Although section 38 of the Constitution
[24] Legal standing is not a mere formality. Although section 38 of the Constitution
adopts a broad approach to standing, an applicant must still establish that it
falls within one or more of the categories recognised by that section. In Giant
Concerts CC v Rinaldo Investments (Pty) Ltd and Others7 the Constitutional
Court emphasised that, while constitutional standing must be generously and
broadly construed, a litigant must nonetheless demonstrate a sufficient interest
7 2013 (3) BCLR 251 (CC) paras 35 - 42.
11
in the relief sought. The Court cautioned that an own-interest litigant cannot
establish standing merely by asserting that an exercise of public power is
unlawful: the unlawfulness complained of must affect the litigant's own
interests or potential interests. The enquiry is therefore not simply whether a
constitutional or legality issue has been raised, but whether the applicant has
established the requisite interest to invoke the Court's jurisdiction.
[25] The LPC's objection focuses primarily on whether Solidarity has demonstrated
that it represents legal practitioners directly regulated by the Code. However,
that approach overlooks the broader constitutional and statutory context in
which the present challenge is brought. This is not private litigation concerning
the enforcement of contractual or proprietary rights. Rather, it is a challenge to
the exercise of public power under the B-BBEE Act. The relief sought includes
declarations of constitutional invalidity, together with the review and setting
aside of the impugned decision. The challenge is grounded in the principle of
legality, the rule of law, and compliance with the constitutional and statutory
framework governing the exercise of public power.
[26] This distinction is significant. Section 38 of the Constitution was deliberately
enacted to broaden access to courts in constitutional matters. The Constitution
adopts a broader approach to standing than that recognised at common law.
Constitutional standing is therefore to be approached generously to ensure
that constitutional rights receive the full measure of protection afforded by the
Constitution. 8
8 See Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 ( 1) SA 984
(CC) para 165, where Chaskalson P stated: '1 can see no good reason for adopting a narrow approach
to the issue of standing in constitutional cases. On the contrary, it is my view that we should rather
adopt a broad approach to standing. This would be consistent with the mandate given to this Court to
uphold the Constitution and would serve to ensure that constitutional rights enjoy the full measure of
the protection to which they are entitled." See also O'Regan J at para 229: "There can be little doubt
that section 7(4) provides for a generous and expanded approach to standing in the constitutional
context. The categories of persons who are granted standing to seek relief are far broader than our
common law has ever permitted." O'Regan J further emphasised at para 231 that standing nevertheless
remains a factual enquiry and that '\he facts necessary to establish standing should appear from the
record before the court."
12
[27] Whether a litigant has standing depends on the particular category of standing
relied upon and the requirements applicable to that category. Where a litigant
claims to act in the public interest, the Court must be satisfied that the
proceedings are genuinely brought in the public interest. That enquiry is
objective and depends on the circumstances of the particular case. Relevant
considerations include whether there is another reasonable and effective
manner in which the challenge can be brought; the nature of the relief sought;
the extent to which it is of general and prospective application; the range of
persons affected; their opportunity to place evidence and argument before the
Court; their degree of vulnerability; the nature of the right alleged to have been
infringed; and the consequences of the alleged infringement.9 The present
matter concerns the validity of a sector code promulgated under national
legislation and the lawfulness of the decision by which it was adopted. These
issues extend beyond the immediate interests of individual legal practitioners.
They implicate broader constitutional concerns relating to legality,
accountability and the proper exercise of public power. The challenge therefore
raises issues of manifest public importance.
[28] The LPC's objection sits somewhat uneasily with the statutory framework on
which the Legal Sector Code itself is founded. Parliament expressly
recognised organised labour as a legitimate participant in the structures
responsible for advising on and monitoring the implementation of the B-BBEE
framework. Although participation in the consultative process does not, without
more, confer standing, Parliament's recognition of organised labour as a
legitimate participant in the formulation and development of codes of good
practice is a relevant contextual consideration when determining whether such
an organisation has a sufficient interest to challenge the legality of measures
adopted under that very framework.
adopted under that very framework.
[29] The Constitution also recognises the importance of meaningful public
participation in governmental decision-making. Although Doctors for Life
International v Speaker of the National Assembly and Others10 concerned the
9 See Lawyers for Human Rights v Minister of Home Affairs and Another 2004 (4) SA 125 (CC) paras
16-18 , approving the approach proposed by O'Regan J in Ferreira.
10 2006 (6) SA 416 (CC). ("Doctors for Life")
13 •
constitutional obligation resting upon legislatures to facilitate public
involvement in the legislative process, the Constitutional Court emphasised
that South Africa's constitutional democracy is founded not only on
representative democracy but also on participatory democracy. Public
participation enhances the legitimacy, accountability and responsiveness of
public decision-making, although it does not require that every view advanced
during the consultative process ultimately be accepted. While Doctors for Life
was not concerned with legal standing, it nevertheless underscores the
constitutional significance attached to participation in public decision-making
processes. 11
[30) In the present matter, Solidarity not only asserts an interest in the outcome of
the Legal Sector Code but also actively participated in the consultation process
preceding its promulgation. As already pointed out, it made submissions during
the public participation process relating to the Legal Sector Code and raised
several concerns about the constitutional validity of the proposed Legal Sector
Code. It further contends that the Legal Sector Code directly affects both its
members' interests and its own institutional interests. Its challenge is therefore
directed at the legality of a process in which it participated and the lawfulness
of the resulting regulatory instrument.
[31] In the light of these considerations, the respondents' objection cannot be
sustained. This matter concerns the legality of the exercise of public power
under national legislation and raises constitutional issues extending beyond
the interests of entities directly regulated by the Legal Sector Code. Having
regard to the statutory framework, Solidarity's participation in the process
leading to the promulgation of the Code, and the interests it asserts on behalf
of itself and its members, we are satisfied that Solidarity has established
standing to pursue the challenge.
(32) The point in limine is accordingly dismissed.
standing to pursue the challenge.
(32) The point in limine is accordingly dismissed.
11 /bidparas 115- 129.
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Non-joinder of the Charter Council
[33] The Minister contended that the Charter Council ought to have been joined to
these proceedings because it had already been established to oversee and
implement the Legal Sector Code and therefore has a direct interest in its
continued operation. According to the Minister, any order reviewing and setting
aside the Legal Sector Code would necessarily affect the Charter Council's
powers and functions.
[34] NADEL advanced a similar submission. It argues that the Charter Council
monitors compliance with the Legal Sector Code; provides guidance on its
interpretation; and oversees future revisions. On that basis, the respondents
submit that the Charter Council has a direct and substantial interest in the relief
sought and that its non-joinder is fatal to the application.
[35] Deneys disputes those contentions. It submits that these proceedings concern
the lawfulness, rationality and constitutionality of the Minister's decision to
publish the Legal Sector Code. The decision was the Minister's alone, and it is
the lawfulness of that decision that lies at the heart of these proceedings.
Deneys further contends that the Charter Council neither made nor
participated in the impugned decision. Its legal interest, if any, lies in
implementing a lawfully promulgated Legal Sector Code, and its constitution
presupposes the existence of such a Code. Deneys accordingly submits that
the Charter Council does not have a direct and substantial legal interest in the
logically antecedent question whether the Minister lawfully exercised the
statutory power to publish the Code.
[36] Deneys further submits that the Charter Council was established only on 22
April 2025, after the applicants delivered their founding papers on 7 April 2025.
Deneys accordingly contends that it could not have joined the Charter Council
when these proceedings were instituted. It further submits that the Charter
Council has no separate juristic personality and cannot sue or be sued in its
15
own name. Finally, although members of the Charter Council, including
representatives of the Legal Practice Council and Advocates for
Transformation , have deposed to affidavits in these proceedings, the Charter
Council itself has neither sought leave to intervene nor asserted that it
possesses a legal interest requiring its joinder.
[37] The principles governing joinder are well established. A party must be joined
only where it has a direct and substantial interest in the subject matter of the
litigation that may be prejudicially affected by the order sought. In
Amalgamated Engineering Union v Minister of Labour12 the Appellate Division
held that a party whose rights may be affected by a judgment is a necessary
party and must be joined to the proceedings. The required interest is a legal
interest in the subject matter of the litigation itself, not merely a financial,
commercial, administrative, or practical interest in the outcome. In Gordon v
Department of Health, KwaZulu-Natal , 13 the Supreme Court of Appeal
confirmed that the decisive enquiry is whether the absent party has a legal
interest in the proceedings that the Court's judgment may prejudicially affect.
(38] In Judicial Service Commission v Cape Bar Council, 14 the Supreme Court of
Appeal reaffirmed that joinder is required only as a matter of necessity, not
convenience, and cautioned that "the mere fact that a party may have an
interest in the outcome of the litigation does not warrant a non-joinder plea."
The Constitutional Court's decision in Snyders and Others v De Jager15 is to
the same effect. There, the Court held that the decisive enquiry is whether the
absent party has a direct and substantial legal interest in the proceedings,
namely whether the order sought will directly affect that party's rights or
interests. If so, the party ought to be joined, because a judgment affecting
those rights or interests may not properly be granted in its absence without
affording it an opportunity to be heard.
affording it an opportunity to be heard.
(39] Applying those principles, we are not persuaded that the Charter Council has
a direct and substantial legal interest in the subject matter of these
12 1949 (3) SA 637 (A).
13 2008 (6) SA 522 (SCA) para 9.
14 2013 (1) SA 170 (SCA) para 12. ("Judicial Services Commission").
15 2017 (5) BCLR 604 (CC) para 9.
16
proceedings. As mentioned earlier in this judgment, although the applicants
pleaded numerous grounds of review, the issues ultimately crystallised during
oral argument. The central question for determination is whether the Minister
lawfully, rationally and constitutionally exercised the statutory power conferred
upon him by section 9 of the 8-BBEE Act when he published the Legal Sector
Code. The Minister took that decision solely in the exercise of statutory public
power. The Charter Council did not take it, and no relief is sought against it.
The lawfulness of the Minister's decision can therefore be determined fully in
the Charter Council's absence.
[40] The respondents' submissions further conflate an interest in the continued
operation of the Legal Sector Code with a legal interest in the validity of the
Minister's decision to publish it. The distinction is significant. As the Supreme
Court of Appeal observed in Judicial Service Commission v Cape Bar
Council:16 a party's interest in the outcome of litigation does not, without more,
establish the direct and substantial legal interest required for joinder. The
Charter Council is a creature of the Legal Sector Code. It derives its powers,
functions and very existence exclusively from the Code and has no
independent statutory source of authority. Moreover, the decision under review
preceded the establishment of the Charter Council. Its existence is therefore
both logically and legally dependent on the validity of the Legal Sector Code
itself. While the Charter Council may have an operational or administrative
interest in the Legal Sector Code's continued existence, that does not amount
to a direct and substantial legal interest in the Minister's antecedent decision
to promulgate it. Significantly, the Minister of Justice, who bears the
responsibility for establishing the Charter Council and is best placed to identify
any prejudice arising from its absence, has not suggested that these
proceedings suffer from non-joinder.17
proceedings suffer from non-joinder.17
[41] In conclusion: the respondents have identified no legal right, obligation or
interest of the Charter Council that may be prejudicially affected by the relief
sought. The Charter Council can contribute nothing to the question whether
16 Judicial Services Commission para 12
17 Paragraph 13.2 of the Legal Sector Code.
17
the Minister lawfully exercised the statutory power conferred by section 9 of
the B-BBEE Act; whether the impugned decision was rationally connected to
the information before him; or whether the publishing of the Legal Sector Code
complied with the constitutional and statutory requirements governing the
exercise of public power. If the Minister's decision is found unlawful or
unconstitutional, it must be reviewed and set aside. The fact that such an order
may have practical consequences for the Charter Council's continued
existence or functioning does not elevate its operational or administrative
interest to the direct and substantial legal interest required for joinder.
[42) The point in limine based on the alleged non-joinder of the Charter Council
must accordingly fail.
State of transformation in the legal sector
[43] The South African legal profession continues to bear the imprint of an
exclusionary past. For much of South Africa's history, the profession operated
as a largely closed institution, dominated by White men and largely
inaccessible to Black people, especially women. Although the advent of
constitutional democracy ushered in a commitment to equality, dignity and
transformation , the respondents contend that the profession has yet to
overcome the structural consequences of that history. In particular, it is
submitted that meaningful disparities persist in ownership, leadership, access
to high-value legal work and economic participation, with Black practitioners,
and Black women in particular, continuing to encounter systemic barriers to
advancement.
[44] The demographic profile of the legal profession presents a disconcerting
picture of persistent disparities in representation, particularly at the levels of
ownership and leadership. According to the Law Society of South Africa's
2024/2025 Annual Report, South Africa has 33 929 practising attorneys.
Updated LPC statistics indicate that the number increased to 34 967 in 2025.
Updated LPC statistics indicate that the number increased to 34 967 in 2025.
Black practitioners now constitute the majority of practising attorneys, and
significant progress has been achieved at entry level; candidate attorneys are
18
approximately 70% Black. Black practitioners constitute approximately 59% of
associates and around 60% of senior associates. Relying on these figures, the
respondents accept that considerable progress has been made in broadening
access to the profession. They contend, however, that the principal challenge
no longer lies in entry into the profession but in progression, retention,
ownership and meaningful economic participation. According to the
respondents, the demographic profile at junior levels has not translated into
comparable representation at the levels of ownership, leadership and
economic influence.
[45] According to the LPC, the structural imbalance is most evident in the country's
largest commercial law firms, particularly the applicants. LPC statistics indicate
that the six largest firms collectively have 1 111 partners, comprising 802
White, 123 African, 92 Coloured and 68 Indian partners. White partners
therefore constitute approximately 72% of all partners, while Black partners
collectively account for only approximately one quarter. Even on the applicants'
own figures, their equity partnership structures remain between 70% and 75%
White-owned, with Black partners holding only between 21 % and 27% of the
economic interest. Oeneys acknowledges Black ownership of only 26.24%,
with Black women holding merely 7.01 % ownership. The respondents contend
that these figures reveal a persistent structural deficit at the level of strategic
decision-making, ownership and profit participation.
[46] The disparities become more pronounced when viewed through the lens of
gender. Although Black practitioners collectively constitute the majority within
the profession, the LPC points out that Black women remain significantly
underrepresented in positions of ownership and leadership. According to the
LPC, Black women number only 5 172 practising attorneys nationally,
representing approximately 15.2% of the profession. The respondents contend
representing approximately 15.2% of the profession. The respondents contend
that the demographic profile of large commercial firms shows that the pathway
from entry into the profession to positions of ownership and authority remains
particularly underdeveloped for Black women, whom the respondents identify
as continuing to experience the greatest barriers to meaningful participation in
ownership and leadership within the profession.
,
19
[47] The LPC disputes the applicants' suggestion that the lack of Black
representation at partnership level is attributable merely to the lengthy pathway
to equity partnership, the rigorous standards required for appointment, or
individual career choices. It notes that Black practitioners already constitute
approximately 59% of associates, while White practitioners account for
approximately 40%. If advancement structures were functioning equitably, the
LPC argues, that demographic profile ought to be reflected progressively at
partnership level. Instead, White practitioners continue to comprise
approximately 72% of equity partners. In the LPC's submission, this disparity
points towards institutional barriers affecting retention and advancement rather
than being explained solely by ordinary career mobility or personal preference.
[48] The LPC places particular emphasis on the attrition of Black associates shortly
before they become eligible for equity partnership. It notes that these
practitioners have already demonstrated the ability to succeed in the
demanding environment of large commercial firms and have reached the
threshold of senior ownership. According to the LPC, the disproportionate
departure of Black practitioners at that critical stage of their careers suggests
that barriers to transformation cannot be explained solely by entry into the
profession. The LPC contends that this pattern of attrition is indicative of
institutional and structural barriers affecting retention, progression and
advancement to partnership, particularly for Black women. It further criticises
the applicants for failing to identify meaningful measures to retain Black
practitioners on the pathway to equity partnership.
[49] Against this backdrop, the LPC argues that the Generic B-BBEE Codes have
failed to deliver meaningful transformation in the legal profession. The Generic
Codes provide the generally applicable framework for measuring B-BBEE
Codes provide the generally applicable framework for measuring B-BBEE
compliance across sectors of the economy, whereas the Legal Sector Code
establishes a sector-specific framework tailored to the particular characteristics
of the legal profession and the transformation challenges identified within it.
The LPC points to the applicant firms' attainment of Level 1 B-BBEE ratings
under the Generic Codes despite their overwhelmingly White ownership and
leadership. According to the LPC, this demonstrates that compliance with the
20
Generic Codes may result in a high B-BBEE status without adequately
addressing the structural barriers that, in its view, continue to impede
transformation within the profession. It therefore rejects the applicants' reliance
on their existing B-BBEE status as evidence of successful transformation and
contends that the Legal Sector Code was introduced precisely because a more
rigorous, sector-specific intervention was required.
[50] More broadly, the respondents contend that the transformation challenges
facing the legal profession extend well beyond questions of ownership. They
submit that Black practitioners continue to face structural barriers to securing
access to high-value legal work, equitable briefing patterns, progression into
leadership and ownership positions, and the long-term sustainability of legal
practice. While acknowledging significant progress in broadening access to the
profession, they maintain that meaningful transformation in economic
participation and positions of influence has not kept pace with that
demographic progress. Against that backdrop, they contend that the Legal
Sector Code was developed as a sector-specific instrument to address the
continuing structural barriers affecting the retention, advancement and
meaningful participation of Black legal practitioners, particularly Black women.
The need for transformation
[51] The imperative to transform the legal profession finds its constitutional
t
foundation in section 9(2) of the Constitution, which recognises that equality is ,
not self-executing and expressly authorises legislative and other measures
designed to protect and advance persons disadvantaged by unfair
discrimination. The provision embodies the Constitution's commitment to
substantive equality and recognises that achieving that objective requires more
than the removal of formal barriers to equality. It expressly authorises positive
measures designed to redress historical disadvantage and dismantle
entrenched patterns of exclusion.
entrenched patterns of exclusion.
[52) The Constitutional Court has consistently held that section 9(2) gives effect to
the Constitution's commitment to substantive, rather than merely formal,
21
equality. In Minister of Finance v Van Heerden18 the Court described the
pursuit of equality as "going to the bedrock of our constitutional architecture"
and emphasised that the Constitution requires measures to redress the
consequences of past discrimination. The Court thus rejected a purely formal
conception of equality and affirmed that remedial measures form an integral
part of the constitutional promise of substantive equality.
[53] The Constitutional Court explained the rationale for the Constitution's
commitment to substantive equality in National Coalition for Gay and Lesbian
Equality and Another v Minister of Justice.19 In that matter, the Court observed
that removing discriminatory laws does not, by itself, eradicate the enduring
consequences of past discrimination. Unless those consequences are
addressed, inequality may persist long after the laws or practices that
produced it have ceased to operate:
"[60] It is insufficient for the Constitution merely to ensure, through its Bill of
Rights, that statutory provisions which have caused such unfair
discrimination in the past are eliminated. Past unfair discrimination
frequently has ongoing negative consequences, the continuation of
which is not halted immediately when the initial causes thereof are
eliminated, and unless remedied, may continue for a substantial time
and even indefinitely. Like justice, equality delayed is equality denied."
[54] Ngcobo J reaffirmed that understanding of substantive equality in Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism.20 Drawing
expressly on National Coalition, he emphasised that South Africa's
Constitution differs fundamentally from constitutions founded upon
assumptions of formal equality because it recognises that the legacy of
systematic discrimination cannot be overcome without positive remedial
action. Ngcobo J observed:
"[74] The achievement of equality is one of the fundamental goals that we ,
"[74] The achievement of equality is one of the fundamental goals that we ,
have fashioned for ourselves in the Constitution. Our constitutional
18 2004 (6) SA 121 (CC) para 22 et seq.
19 1999 (1) SA6 (CC) para 60. ("National Coalition")
20 2004 (4) SA 490 (CC) para 74. ("Bato Star")
22
order is committed to the transformation of our society from a grossly
unequal society to one 'in which there is equality between men and
women and people of all races'. In this fundamental way, our
Constitution differs from other constitutions which assume that all are
equal and in so doing simply entrench existing inequalities. Our
Constitution recognises that decades of systematic racial discrimination
entrenched by the apartheid legal order cannot be eliminated without
positive action being taken to achieve that result. We are required to do
more than that. The effects of discrimination may continue indefinitely
unless there is a commitment to end it."
[55] In South African Police Service v Solidarity obo Barnard,21 Moseneke ACJ
reiterated that South Africa's constitutional commitment to substantive equality
must be understood against the backdrop of a society marked by deep
historical inequality. The Constitution therefore permits, and in appropriate
circumstances requires, measures designed to advance those disadvantaged
by past unfair discrimination in order to achieve genuine inclusion and
representivity.
[56] More recently, in Minister of Justice and Constitutional Development v South
African Restructuring and Insolvency Practitioners Association,22 the Court
again described transformation as a constitutional imperative and recognised
the legitimacy of measures designed to broaden participation in professions
historically characterised by exclusion.
[57] The thread running through these authorities is clear: the Constitution does not
treat transformation as an optional policy preference or political aspiration.
Rather, it recognises transformation as an indispensable constitutional means
of achieving substantive equality by addressing the enduring consequences of
historical discrimination. That constitutional commitment finds legislative
expression in the LPA and the B-BBEE Act. The former seeks to transform
21 2014 (6) SA 123 (CC),
21 2014 (6) SA 123 (CC),
22 2018 (5) SA 349 (CC): "[1] Restitutionary measures are a vital component of our transformative
constitutional order. The drafters of our Constitution were alive to the fact that the abolition of
discriminatory laws and the guarantee of equal rights alone would not lead to an egalitarian society
envisaged in the Constitution. Something more had to be done in order to dismantle the injustices and
Inequalities arising from the apartheid legal order. Hence the Bill of Rights, which is a cornerstone of
our democratic order, includes remedial measures."
t
23
and restructure the legal profession in line with constitutional imperatives, while
the latter promotes economic transformation and the meaningful participation
of Black people in the economy. The Legal Sector Code must be understood
against that constitutional and legislative backdrop.
The dispute before this court
[58] In these proceedings, the applicants were at pains to emphasise what this case
is not about. They expressly disavow any opposition to transformation within
the legal profession and reject the suggestion that the application is an attempt
to preserve privilege or resist transformation. They do not challenge the
legitimacy of a Legal Sector Code as a mechanism for advancing
transformation within the profession. On the contrary, they state that they
welcome the promulgation of a lawful sector-specific code that applies across
the profession and imposes realistic and equitable transformation obligations.
They further acknowledge that the Minister is entitled to promulgate a sector
specific code that departs from the Generic Codes, provided that those
departures are lawfully justified and comply with the requirements of the 8-
BBEE Act and the "Guidelines for developing and gazetting of sector codes",
also known as "Statement 003". They further accept that a lawfully
promulgated sector code may impose more demanding obligations than those
contained in the Generic Codes and may consequently reduce their existing
B-BBEE contributor status.
[59] Against that background, the applicants submitted that the issue before this
Court concerns the lawfulness of the Minister's exercise of the power conferred
by section 9(1) of the B-BBEE Act, rather than the merits of competing
transformation policies. The Court, they say, is not called upon to substitute its
own views for those of the executive, but to determine whether the Minister
lawfully exercised that statutory power. They contend that the Legal Sector
lawfully exercised that statutory power. They contend that the Legal Sector
Code departs materially from the Generic Codes without lawful justification,
was developed and promulgated in a manner inconsistent with the regulatory
framework governing sector codes, and contains targets, methodologies and
24
measurement criteria that are arbitrary, irrational and unsupported by the
information before the decision-maker.
[60] The applicants further contend that the Legal Sector Code cannot achieve its
stated transformation objectives because it exempts approximately 95% of
legal firms from its operation. According to the applicants, the Legal Sector
Code therefore regulates only a small proportion of the profession, despite •
evidence that the exempt segment is, on average, less transformed than the
firms that remain subject to the Legal Sector Code. They submit that imposing
increasingly onerous obligations on the relatively small number of firms already
subject to the Legal Sector Code, while exempting the overwhelming majority,
lacks a rational connection to the objective of accelerating transformation
across the profession.
[61] The applicants also challenge several substantive features of the Legal Sector
Code, including the exclusion of socio-economic development expenditure;
bursaries awarded to Black students; skills-development expenditure directed
at Black employees with disabilities; and Black non-lawyers from
management-control measures. They further challenge the ownership targets
and the absence of transitional arrangements following the Code's immediate
implementation. According to the applicants, these provisions are inconsistent
with the governing regulatory framework, introduce methodologies and
obligations not authorised by Statement 003, and impose targets that are, in
certain respects, unreasonable, impractical and incapable of achievement
within the prescribed timeframes. Collectively, they contend that these defects
render the Minister's decision to promulgate the Code unlawful and irrational.
[62] The respondents emphatically reject the applicants' characterisation of the
litigation. They contend that, despite the applicants' repeated protestations of
support for transformation , the application directly challenges the principal
support for transformation , the application directly challenges the principal
instrument designed to give effect to transformation within the legal profession.
According to the respondents, the applicants seek to portray the dispute as
one concerning legality and procedural compliance, when, in substance, they
seek to preserve an existing transformation framework that has failed to
dismantle entrenched patterns of ownership, control and access to high-value
25
legal work. They argue that the applicants cannot simultaneously profess
support for transformation while seeking an order setting aside, in its entirety,
the very sector-specific code intended to achieve that objective.
[63) The respondents further contend that the applicants' reliance on their existing
Level One B-BBEE contributor status illustrates precisely why the Legal Sector
Code became necessary. They submit that those favourable ratings were
achieved despite comparatively low levels of Black ownership and leadership
within the applicant firms. According to NADEL, the ratings were attained
largely through expenditure on skills development, socio-economic
development initiatives and procurement, as well as through the employment
of substantial numbers of Black non-legal support staff, rather than through
meaningful transformation of ownership, management and control. On the
respondents' case, this demonstrates the limitations of applying the Generic
Codes to the legal profession: firms may attain the highest level of B-BBEE
recognition without necessarily achieving corresponding transformation in
those areas regarded as central to participation and advancement within the
profession. The respondents contend that the Legal Sector Code was
developed to address those limitations through a sector-specific framework
directed more closely at transformation in ownership, leadership, briefing
patterns and meaningful economic participation.
[64) Against that background, the respondents contend that there is a tension
between the applicants' stated acceptance of the constitutional imperative of
transformation and the legitimacy of a sector-specific code, on the one hand,
and the challenge they advance, on the other. In their submission, the
applicants seek to impugn the very measures introduced to address the
shortcomings they themselves identify in the application of the Generic Codes
to the legal profession. That tension is, they contend, compounded by the
to the legal profession. That tension is, they contend, compounded by the
breadth of the relief sought: although the applicants characterise their
challenge as directed at particular features of the Legal Sector Code, the notice
of motion seeks an order reviewing and setting aside the Code in its entirety.
26
[65) Basadi advances a further criticism. It submits that the applicants' case pays
insufficient attention to women's position in the legal profession, particularly
Black women. According to Basadi, although the applicants invoke the
language of legality, fairness and rationality, their challenge is directed at
measures specifically designed to improve the participation of Black women in
ownership, leadership, briefing patterns and access to quality legal work.
Basadi emphasises that Black women continue to experience structural
disadvantage arising from entrenched briefing practices, limited access to
economically significant work and longstanding barriers to professional
advancement. It further contends that the applicants identify no meaningful
alternative mechanism capable of addressing those enduring inequalities. In
these circumstances, Basadi submits that the relief sought would undermine
one of the central objectives of the Legal Sector Code, namely advancing Black
women within the legal profession.
[66) The parties' submissions make it clear that there is no fundamental
disagreement about the constitutional imperative of transformation or the need
for continued transformation within the legal profession. Nor is there any real
dispute that the B-BBEE Act authorises the promulgation of sector-specific
codes to advance that objective. Those questions are therefore not before this
Court. Equally, it is not for this Court to determine whether the Legal Sector
Code embodies the optimal model for achieving transformation, or whether
different policy choices might better advance the objectives of the Act.
Parliament has entrusted those matters to the executive.
Nine review grounds
[67] The applicants initially advanced seven independent grounds of review
challenging the validity of the Legal Sector Code. After delivery of the Rule 53
record, they relied on two further grounds arising from both the contents of the
record, they relied on two further grounds arising from both the contents of the
record and, significantly, from documents they contend ought to have formed
part of it. In total, they advanced nine review grounds, each said to constitute
27
an independent basis on which the Minister's decision to promulgate the Legal
Sector Code falls to be reviewed and set aside.
[68] These grounds include alleged unlawful departures from Statement 003 and
the Generic Codes; irrational targets: methodologies and weightings; the
absence of an adequate empirical foundation for material aspects of the Code;
the lack of transitional arrangements; alleged inconsistency with section 9(2)
of the Constitution; the contention that certain provisions are ultra vires the
empowering legislation; the absence of a transformation strategy
contemplated by the B-BBEE Act; the Minister's alleged failure to
independently satisfy himself that the statutory process had been lawfully
followed; and the alleged failure to engage meaningfully with the serious
concerns identified by his predecessor, Minister Patel. The nature and
significance of the concerns raised by Minister Patel will be addressed more
fully later in the judgment.
[69] These grounds raise distinct questions of legality, rationality, procedural
fairness and statutory interpretation. During oral argument, however, the
applicants' challenge crystallised around the exercise of the Minister's
discretion before the Legal Sector Code was promulgated: whether he
independently satisfied himself that the statutory requirements governing the
adoption of the Code had been met; whether the material departures from the
Generic Codes were properly justified ; and whether the substantial concerns ,
previously raised by Minister Patel had been adequately addressed. Against
that background, the central enquiry is whether the Minister exercised the
statutory discretion conferred upon him by the B-BBEE Act in accordance with
the requirements of the Constitution and the Act.
The scheme and principal features of the Legal Sector Code
[70] The B-BBEE Act seeks to promote broad-based economic transformation and
the meaningful participation of Black people in the economy through changes
the meaningful participation of Black people in the economy through changes
in ownership and management, increased participation by Black women, skills
- -------
28
development and support for Black-owned enterprises. Section 9 empowers
the Minister, by notice in the Government Gazette, to issue codes of good ,
practice prescribing criteria, indicators and weightings for measuring progress
towards those objectives.
[71] The Legal Sector Code was published pursuant to that power on 20 September
2024. In terms of section 10(3) of the Act, it became the applicable B-BBEE
measurement framework for enterprises operating within the legal sector,
replacing the Generic Codes. The respondents contend that a sector-specific
framework is necessary to address the profession's distinctive structure and
persistent inequalities in ownership, professional advancement and access to
economically significant legal work.
[72] The Code comprises four principal scorecard elements: Ownership,
Management Control, Skills Development, and Preferential Procurement and
Enterprise Development. It provides for progressively increasing Black
ownership and Black-women-ownership targets; focuses management control
on professional leadership within legal practices; and promotes candidate
training, mentorship and specialised legal education. It also establishes a
Legal Sector Transformation Fund to support entry and advancement within
the profession, with institutional oversight through a Charter Council.
[73] A central feature is the emphasis on the procurement of legal services and
equitable briefing practices. As the JSA explains, the advocates' profession is
referral-based, and attorneys therefore play a central role in allocating work.
The respondents contend that longstanding briefing patterns have restricted
opportunities for Black advocates, particularly Black-women advocates, in
specialist and high-value fields. The Code accordingly accords significant
weight to their briefing as a means of expanding professional and economic
opportunities.
[74] The respondents also emphasise the intersecting disadvantages of race and
opportunities.
[74] The respondents also emphasise the intersecting disadvantages of race and
gender experienced by Black-women practitioners. As discussed earlier,
Basadi identifies unequal briefing patterns, limited access to significant legal
work, slower advancement into ownership and leadership, and comparatively
29
high attrition. The respondents contend that the Code's ownership,
procurement, skills-development and funding measures seek collectively to
address these barriers.
[75] This outline provides context for the review without assessing the substantive
validity of individual provisions. The consultation, technical work, coordination
and departmental evaluation preceding promulgation supplied the Minister with
information and advice to inform his decision. Those processes does not,
however, displace his statutory responsibility. The central question is whether,
informed by that process, the Minister himself exercised the judgment required
by section 9(1 ), consistently with the constraints imposed by the rule of law.
The constitutional constraints imposed by the Rule of Law
[76] Section 9(1) empowers the Minister to issue codes of good practice and sector
codes by notice in the Gazette. The power is permissive rather than obligatory:
Parliament does not require the Minister to promulgate every proposed sector
code submitted to him but entrusts that decision to his discretion. Exercising it
requires the Minister to consider the material before him and the purposes of
the Act and to determine whether to issue the proposed code. Where
departures from the Generic Codes are proposed, those departures form part
of the matters relevant to that determination. The power conferred by s 9(1) is
thus both discretionary and evaluative.
[77] The exercise of that discretion is constrained by the Constitution and, in
particular, by the rule of law. Section 1 (c) proclaims the supremacy of the
Constitution and the Rule of Law as founding values of the Republic. In
Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others,23 that Court held that it is "central to the
conception of our constitutional order" that the Legislature and Executive "may
exercise no power and perform no function beyond that conferred upon them
exercise no power and perform no function beyond that conferred upon them
by law". In Pharmaceutical Manufacturers Association of SA: In re Ex parte
23 1999 (1) SA 374 (CC) para 58.
t
30
President of the Republic of South Africa,24 the Court explained that "[t]he
exercise of all public power must comply with the Constitution, which is the
supreme law, and the doctrine of legality, which is part of that law".
[78] Of particular relevance in the present matter is the principle that a functionary
must exercise the statutory discretion Parliament has conferred on them. In
Hofmeyr v Minister of Justice and Another ,25 the principle was expressed in
these terms:
"It is well established that a discretionary power vested in one official must be
exercised by that official (or his lawful delegate) and that, although where
appropriate he may consult others and obtain their advice, he must exercise
his own discretion and not abdicate it in favour of someone else."
[79] The Supreme Court of Appeal later endorsed that formulation in Minister of
Environmental Affairs and Tourism and Another v Scenematic Fourteen (Pty)
Ltd.26 In that matter the Court accepted that a functionary upon whom a
discretionary power is conferred may obtain assistance and act upon the
advice of others. It did not require the functionary to personally acquaint himself
with every fact on which the advice was based. What was required, where
reliance was placed upon advice, was that the functionary "at the least" be
aware of the grounds upon which that advice was given. The Court held that
the functionary's lack of knowledge of every fact underlying the advice did not
mean the discretion was improperly exercised, particularly where the advice
was only one factor in the ultimate decision.
[80] The distinction is important. The law does not require a Minister personally to
perform every task which precedes the exercise of a statutory power and that
is also not suggested here. Consultation, technical analysis, departmental
work and recommendations may all legitimately inform the decision. What the
law requires is that the statutory discretion ultimately be exercised by the
law requires is that the statutory discretion ultimately be exercised by the
functionary upon whom Parliament has conferred it. Scenematic Fourteen thus
accommodates the practical realities of governmental decision-making while
242000 (2) SA 674 (CC) para 20.
25 1992 (3) SA 108 (C) at 117F-G .
26 2005 (6) SA 182 (SCA) para 20. (" Scenematic Fourteen'')
31
preserving the distinction between assistance in the decision-making process
and the exercise of the statutory power itself. 27
[81] The consultative process in the present matter therefore assumes significance
not because consultation or reliance on advice is objectionable, but because it
reveals the material on which the Minister's eventual decision was based. It
identifies the objections and concerns which emerged during consultation; the
proposed departures from the Generic Codes; the concerns raised by Minister
Patel; and the recommendations ultimately placed before the Minister. Those
matters form part of the factual matrix against which the exercise of the
Minister's statutory discretion must be assessed.
[82] The Rule 53 record is therefore important for the same reason. It enables the
reviewing court to identify the material before the decision-maker and assess
the lawfulness of the decision under review. The enquiry in the present matter
is not directed at reviewing the consultative process as an end in itself. It is
directed at determining , from the record and the evidence before this Court,
whether the Minister exercised the discretion conferred upon him bys 9(1 ).
[83] These principles were recognised long ago in Shidiack v Union Government
(Minister of the lnterior) .28 There , Innes ACJ explained that, where a matter is
left to the discretion of a public officer, a court will not interfere where the officer
has "duly and honestly applied himself to the question which has been left to
his discretion ". Conversely, judicial intervention may be warranted where the
functionary "had not applied his mind to the matter or exercised his discretion
at all". In Pharmaceutical Manufacturers this Court held that, to the extent that
Shidiack requires public officials to exercise their powers in good faith and in
accordance with those requirements, the principle is consistent with the Rule
of Law.29
[84] The authorities do not suggest that the Minister was required to act without
of Law.29
[84] The authorities do not suggest that the Minister was required to act without
advice, or that his acceptance of advice or recommendations would, without ,
27 Scenematic Fourteen para 20.
2a 1912 AD 642 at 651.
29 Pharmaceutical Manufacturers paras 82-83
32
more, establish that he had failed to exercise the discretion conferred upon
him. Nor was he required personally to undertake the technical work performed
by departmental officials or the bodies involved in developing the proposed
Code. Scenematic Fourteen makes that clear. The question is narrower:
whether, having received the advice, recommendations and other material
placed before him, the Minister himself exercised the judgment which s 9(1)
entrusted to him.
[85] The enquiry is therefore confined. It is not whether this Court considers that
the Legal Sector Code ought to have been promulgated, whether it would have
evaluated the underlying material differently, or whether the Minister was
entitled to rely upon the work, advice and recommendations of others: he
plainly was. The question is whether the evidence demonstrates that, having
received and considered that material, the Minister applied himself to the
decision required by s 9(1) and exercised the discretion which Parliament
entrusted to him.
The Rule 53 Record
[86] Although the record extends to several thousand pages, the applicants
contend that it is materially incomplete. In particular, they point to the absence
of the contemporaneous minutes, reports, deliberations and working
documents of the Steering Committee and the Technical Committee that
played a central role in developing the Legal Sector Code; the records relating
to the Legal Practice Council's drafting process preceding the submission of
the proposed Code; various annexures to the January 2024 departmental
submission, including summaries of stakeholder concerns and legal opinions;
the documentary material demonstrating how the concerns raised by former
Minister Patel regarding the legality of the proposed Code were considered
and addressed, including the responses furnished and the basis upon which
the identified legal difficulties were considered resolved; the justification for
departures from the Generic Codes; and the records demonstrating how
departures from the Generic Codes; and the records demonstrating how
stakeholder objections were considered and resolved before the Code was
33
ultimately promulgated. The applicants identified these categories of
documents in their supplementary founding affidavit and in subsequent ,
correspondence requesting a complete Rule 53 record.
[87] The deficiencies in the Rule 53 record are significant because they bear
directly on the question whether the Minister exercised the independent
statutory discretion entrusted to him by section 9(1) of the B-BBEE Act. They
affect the Court's ability to determine what material was before the Minister;
whether he had access to the information necessary to evaluate the
recommendations made to him; whether he considered the concerns and
issues that emerged during the consultative process, including those identified
by former Minister Patel; and whether he independently satisfied himself that
the statutory requirements for the promulgation of the Legal Sector Code had
been met. Stated differently, they bear directly on whether the material relevant
to the statutory discretion entrusted to the Minister formed part of his evaluative
process before he exercised the discretion conferred by section 9(1).
The Development and Promulgation of the Legal Sector Code
[88] Before turning to the central question that ultimately crystallised during oral
argument-whether Minister Tau exercised the statutory discretion entrusted
to him by section 9(1) of the B-BBEE Act in the manner required by the
Constitution- it is necessary to briefly describe the comprehensive statutory
process that culminated in the promulgation of the Legal Sector Code. That
process provides the factual context for evaluating the Minister's decision. It
also provides the context in which Minister Patel's concerns and the Rule 53
record must be considered.
[89] The Legal Sector Code did not emerge in isolation. Its origins trace to
longstanding concerns about transformation within the legal profession. In
March 2016, the Law Society of South Africa convened the Summit on Briefing
March 2016, the Law Society of South Africa convened the Summit on Briefing
Patterns in the Legal Profession. The Summit identified persistent disparities
in the allocation of legal work across the public and private sectors and
34
highlighted the continued underrepresentation of black practitioners, and black
women in particular, in that allocation.
[90] Following the Summit, a task team developed Procurement Protocols to
address those concerns. The Protocols expressly recognised race- and
gender-based marginalisation within the profession, the historical advantages
enjoyed by white male practitioners and the structural barriers impeding the
advancement of black practitioners and women. A number of commercial law
firms, including the applicants, became signatories to the Protocols, thereby
committing themselves to measures to improve access to legal work, increase
the briefing of Black and women practitioners, promote skills development and
broader participation within the profession, and strengthen mechanisms for
monitoring compliance and accountability. Many of the concepts embodied in
the Protocols ultimately found expression in the Legal Sector Code.
[91] The formal process to develop the Legal Sector Code began in 2020 under the
auspices of the LPC, which served as the secretariat for a broadly
representative Steering Committee. The Steering Committee comprised
representatives of attorneys, advocates, corporate counsel, Legal Aid South
Africa, women's organisations , government departments and other
representative bodies within the legal profession. Its mandate was to develop
an appropriate sector code for the legal profession through an extensive
consultative process. Ultimately, the Steering Committee produced four
iterations of the proposed Legal Sector Code- three during the internal
consultative process and a fourth following public participation.
[92] The Commission published the first draft of the proposed Legal Sector Code
for public comment on 8 November 2020. Two rounds of public participation
followed . The first generated 39 written submissions. A revised draft attracted
a further 102 submissions received during February and March 2021. The
a further 102 submissions received during February and March 2021. The
Steering Committee considered those submissions, which resulted in
successive amendments before the proposed Code was submitted to the
Minister of Justice and Constitutional Development for onward transmission to
the Minister of Trade, Industry and Competition.
35
[93] On 24 April 2021, the Steering Committee submitted the proposed Legal
Sector Code to the Department of Justice and Constitutional Development.
The proposed Code, together with an initial Deviation Memorandum intended
to justify departures from the Generic Codes of Good Practice, was transmitted
to the DTIC on 11 May 2021. According to the respondents, the Deviation
Memorandum explained that the distinctive characteristics of the legal
profession warranted departures from the Generic Codes. The applicants
dispute that contention and maintain that the memorandum relied largely on
broad references to demographic statistics and the profession's unique
characteristics, without adequately explaining why those characteristics
justified the particular departures, methodologies and targets ultimately
reflected in the proposed Code.
[94] A further draft of the proposed Code was published for public comment on 22
July 2022. In accordance with Statement 003, a Technical Committee
comprising representatives of the Steering Committee, together with officials
from the DTIC and the Department of Justice and Constitutional Development,
was established to consider the public submissions received and refine the
proposed Code.
[95] Throughout the consultative process, several stakeholders raised concerns
about the proposed Code's legality, practicality, and economic implications.
The applicants submitted detailed objections to the exclusion of elements from
the Generic Codes, the adoption of different methodologies, the proposed
ownership targets and the practical implications for firms that had structured
their transformation initiatives around the Generic Codes. Deneys also
participated extensively in the consultative process, making repeated
submissions on the proposed methodology, scorecard, targets, and deviations.
It contends that many of the matters raised during the consultation process
remained substantially unaddressed in the final version of the proposed Code.
36
Minister Patel's consideration of the proposed legal sector code
[96] Although officials within the DTIC recommended as early as October 2021 that
the proposed Legal Sector Code be gazetted, it was not promulgated at that
stage. Minister Patel expressed reservations about several aspects of the
proposed Code. These concerns included whether provisions relating to
criminal offences and the proposed Charter Council exceeded the powers
conferred by the B-BBEE Act, whether the proposed departures from the
Generic Codes were adequately justified, and whether the substantial
objections raised by the Bars and the larger commercial law firms had been
satisfactorily addressed.
[97] Minister Patel's concerns were neither peripheral nor technical. They related
directly to the legality of the proposed Legal Sector Code and to the exercise
of the statutory power conferred on him by section 9(1) of the B-BBEE Act. He
questioned whether the proposed departures from the Generic Codes had
been adequately justified in accordance with Statement 003; whether the
Deviation Memorandum sufficiently identified the sectoral characteristics of the
legal profession and the empirical material relied on to justify those departures;
whether the proposed exclusion of non-legal practitioners from the
management control element and the omission of the socio-economic
development element had been adequately justified; and whether meaningful
consideration had been given to the substantial objections raised during the
consultation process, including those advanced by the Bars and the larger
commercial law firms. Despite further submissions from departmental officials
and discussions with Steering Committee representatives, Minister Patel
remained unconvinced that the statutory requirements had been met and
declined to approve the proposed Code.
[98] After Minister Patel refused to approve the proposed Code, the Steering and
Technical Committees prepared additional documentation addressing his
Technical Committees prepared additional documentation addressing his
concerns. In July 2024, an updated Deviation Memorandum was prepared.
Thereafter, in August 2024, officials within the DTIC submitted a memorandum
recommending that the proposed Code be gazetted and advising the incoming
Minister that Minister Patel's previously raised concerns had been addressed.
37
Those documents, together with the revised proposed Code, formed the
material that ultimately came before Minister Tau when he considered whether
to exercise the statutory power conferred by section 9(1) of the B-BBEE Act.
[99] The delay in promulgating the proposed Code ultimately resulted in litigation.
In February 2024, organisations represented on the Steering Committee
instituted proceedings seeking to compel Minister Patel to decide on the
proposed Code. In his answering affidavit, Minister Patel maintained that the
statutory discretion conferred by section 9(1) vested in the Minister personally,
that he remained unconvinced the statutory requirements had been satisfied,
and that he was entitled to require further information and material revisions
before deciding whether to promulgate the proposed Code.
[100] The significance of this cannot be ignored: it shows that Minister Tau's
predecessor, as the holder of the statutory discretion, had already identified
serious legal and factual concerns. Whether those concerns were ultimately
well-founded is not the issue. The issue is also not whether Minister Patel was
correct to withhold his approval or whether Minister Tau was obliged to accept
his predecessor's concerns. The point is that these concerns formed part of
the factual context in which Minister Tau had to decide whether the statutory
conditions governing the promulgation of the legal sector code had been
satisfied.
Minister Tau's exercise of the statutory discretion
[101] When Minister Tau assumed office in July 2024, he inherited a process
spanning several years of consultation , revisions, stakeholder objections and
departmental engagement. His predecessor had declined to promulgate the
proposed Legal Sector Code pending satisfactory resolution of identified
concerns. Against that background, Minister Tau was required to exercise the
discretion conferred by section 9(1 ).
[102] Following his appointment, the Technical Committee prepared an updated
[102] Following his appointment, the Technical Committee prepared an updated
Deviation Memorandum with supporting documentation, statistical reports and
'
38
legal opinions. The respondents contend that it addressed Minister Patel's
concerns about departures from the Generic Codes. The applicants maintain
that it remained materially deficient, relying on broad assertions without
adequately justifying the particular deviations proposed.
[103] The updated memorandum and supporting material were submitted to Minister
Tau on 15 July 2024. The departmental recommendation for approval followed
on 30 August 2024. The Minister approved the legal sector code on 11
September 2024, and the Code was promulgated on 20 September 2024. That
decision is the subject of this review.
[104] Minister Tau accepts that the power to issue a sector code vests in him and
requires of him to personally satisfy himself that the statutory requirements had
been met. He describes his function as more than a mechanical or "tick-box"
exercise. He states that he requested a comprehensive briefing on the Code's
history, Minister Patel's concerns and the work undertaken to address them,
and that, after considering the material and departmental recommendations,
he concluded that the Legal Sector Code complied with the Act.
[105] The question is whether the evidence demonstrates that he exercised a
discretion as required by section 9(1 ). As Mr Ngcukaitobi emphasised during
oral argument, this is "a case about one decision-maker". The enquiry
therefore turns to the Minister's account, read with the Rule 53 record.
[106] An overview of the Minister's affidavit shows that he placed considerable
reliance on departmental advice and the process preceding promulgation. He
describes his role as considering and publishing the Legal Sector Code once
the sector had reached agreement, while matters concerning its detailed
content were principally for the legal profession and its representative
structures.
[107] The applicants' complaint is not that no further work was undertaken after Mr
Patel's concerns were raised, but that neither the affidavit nor the Rule 53
Patel's concerns were raised, but that neither the affidavit nor the Rule 53
record explains how Minister Tau evaluated that work and satisfied himself that
Minister Patel's concerns had in fact been adequately considered and
addressed. They also identify the absence of the records of the Steering
39
Committee's engagement with Minister Patel and of any meetings between
Minister Tau and the Steering or Technical Committees.
[108] As already explained, the Minister was entitled to rely on the committees' work
and departmental advice without repeating that work. Section 9(1 ), however,
requires of him to exercise his own judgment on the material placed before
him. Neither his affidavit nor the Rule 53 record demonstrates how he
evaluated that material to satisfy himself that Minister Patel's concerns had
been adequately addressed and that departures from the Generic Codes were
justified in accordance with Statement 003. The record disclose the advice he
received and the conclusion he reached, but not the evaluation connecting the
two.
[109] The Minister's own account of the role he understood himself to perform is
particularly significant. It is necessary to consider that account as a whole. The
Minister's affidavit contains general assertions that he had applied his mind to
the matter and was satisfied that the requirements for promulgation had been
met. But those assertions must be considered alongside the Minister's own
more detailed explanation - repeated several times in the affidavit - of what he
understood the respective roles of the legal sector, departmental officials and
himself to be.
[11 0] The starting point is paragraphs 39 and 40 of the answering affidavit. There
the Minister expressly accepts that the power to issue a sector code is
conferred upon the Minister and that the Minister must ensure compliance with
the empowering provisions of the B-BBEE Act. Importantly, he states that "[t]he
Minister is also required to apply his mind to the provisions of a proposed
sector code and not perform a tick box exercise". He adds that the Minister
"must be satisfied that all procedural requirements have been met and the
provisions of the draft sector code are lawful and constitutional". The Minister
provisions of the draft sector code are lawful and constitutional". The Minister
therefore correctly identifies, at the outset, that the statutory function requires
more than the formal act of publication.
[111] When the Minister turns to describe what he himself did, however, a different
picture emerges. In paragraph 46 he states that, upon assuming office, he
40
"applied [his] mind to the matter, after having been briefed by officials of the •
Department who were intimately involved with the LSC process". He explains
in paragraph 48 that the submission placed before him advised him of the
history of the drafting process, Minister Patel's concerns, "and that these have
now been addressed". In paragraph 49 he records his satisfaction that the
objections and comments which might have stood in the way of gazetting had
been fully addressed. In paragraph 50 he states that he "was guided by the
officials in the B-BBEE Unit who did a comprehensive review" and who
thereafter recommended approval of the Legal Sector Code for gazetting. In
paragraph 56 he describes the relevant memoranda as containing "the advice
on which I acted in gazetting the final LSC" and states that this advice assisted
him in applying his mind to the issues concerning the finalisation and gazetting
of the Code.
[112] The same pattern appears when the Minister deals specifically with the
justification for the departures from the Generic Codes. In paragraph 108 he
states that, "[h]aving exercised my statutory and constitutional functions, I was
satisfied that the deviations are well motivated and justified''. The following
paragraphs, however, reveal the basis for that satisfaction. In paragraph 109
he states: "I was advised and accordingly satisfied that all Minister Patel's
concerns have been adequately responded to" and that the sectoral
characteristics and empirical research relied upon were supported by
objectively verifiable information. In paragraph 110 he again states that he
"was advised and am satisfied" that the comments received through the public
consultation process had been adequately addressed. In paragraph 111, he
states: "I am advised and satisfied that the Steering Committee has provided
evidence relied upon to justify the deviations from the Generic Codes." He adds
that the evidence "was considered by all Steering Committee members during
that the evidence "was considered by all Steering Committee members during
the process of developing the draft LSC [legal sector code]". The affidavit thus
identifies the consideration undertaken by the Steering Committee, but these
passages do not identify a corresponding evaluation of that evidence
undertaken by the Minister himself.
41
(113] This assumes greater significance when regard is had to the Minister's express
description of his own role later in the affidavit. In paragraph 125 he
emphasises that the Legal Sector Code "is a product of long consultations in
the legal sector, conducted over a long period of time and finally agreed to by
the legal sector". He then states in paragraph 126:
"My role as the Minister of the DTIC is to consider and publish the code, after
the sector has agreed on it. My role as the Minister of the DTIC is to recognise
and accept what the legal sector has collectively agreed on."
[114] That statement is immediately followed in paragraph 127 by an even more
direct description of his function:
"I have done nothing except to execute my legislative obligation of gazetting
the LSC."
[115] These statements are not isolated. The same understanding of the Minister's
role recurs when he responds to the individual grounds of review. In paragraph
207, dealing specifically with the complaint concerning the targets in the Legal
Sector Code, the Minister states:
"It is really not my space to be involved in the nitty-gritty of the LSC regarding
the optimal targets in the LSC. This is a function of the legal profession and all
the stakeholders ."
[116] He explains that stakeholders participated in drafting the Code and that the
Technical Committee and Steering Committee considered their comments . He
then concludes that a final version of the LSC had been issued "which I was
duty-bound to gazette".
[117] The significance of that statement should not be understated. Section 9(1)
does not impose an obligation upon the Minister to promulgate a sector code
merely because the sectoral process has culminated in agreement upon one.
It confers a discretion upon the Minister. Yet the Minister's own account is that
determining the optimal targets was "not my space"; that this was the function
of the legal profession and the stakeholders; and that, once the final version
of the legal profession and the stakeholders; and that, once the final version
emerged from that process, he regarded himself as "duty-bound to gazette" it.
42
That understanding is difficult to reconcile with the discretionary character of
the power conferred by section 9( 1).
[118] Further passages say the same . In paragraph 219 the Minister states that he
"was at all times guided by the legal profession under the auspices of the
Steering Committee, the LPC which provided support to the Steering
Committee, the Line Ministry and the Technical Committee" . In paragraph 229,
he describes his role in even more explicit terms :
"I have done what the law requires of me, which is to gazette the LSC at the
request of the legal sector, supported by the Line Ministry ••
[119] In paragraph 230, he adds that, if sections of the legal sector are dissatisfied
with portions of the Code, "then it is for the legal sector itself to resolve those
differences".
[120) The same view appears again in paragraph 240. Responding to the applicants '
allegations concerning the impact of the LSC, the Minister states :
"I cannot comment on the specifics of the impact of the LSC on the Applicant.
I have executed my constitutional duties of publishing the LSC in the Gazette,
as requested by the legal sector."
[121] Once again , the formulation is significant. The substantive instrument is
attributed to the legal sector; the Minister describes his constitutional function
as publishing it at the sector 's request.
[122) That understanding becomes particularly pertinent when the Minister returns
to the justification for the deviations from the Generic Codes. In paragraph 273
he states:
"I need not spend time and effort in explaining the deviations because I have
executed my constitutional functions. The LSC is a product of consultation by
the legal sector amongst itself. The Charter Council, which now exists, can deal
with how the LSC can be taken forward and refined if necessary."
[123] This passage must be read against Minister Patel's concerns . Those concerns
included whether the deviations from the Generic Codes were properly justified
t
43
and whether they were supported by material evidence based upon sound
economic principles, sectoral characteristics or empirical research. The
question whether those deviations were justified was therefore not peripheral
to the exercise of the statutory power. It was one of the matters requiring
consideration before exercising the power.
[124] Paragraph 276 is equally revealing. Having stated in paragraph 275 that
section 9(3) permits a code of good practice to specify targets consistent with
the objectives of the Act, the Minister explains why he published the targets
and weightings contained in the LSC:
"I am satisfied that the legal sector, in its wisdom, has decided on the targets
and weightings and that these are consistent with the objectives of the Act.
Hence, I published the LSC in the Gazette."
[125] The formulation is important. The Minister does not say in this passage that,
having independently evaluated the evidence, the sectoral characteristics and
the justification advanced for the particular targets and weightings, he
determined that they were appropriate. Rather, the premise expressly
identified is that "the legal sector, in its wisdom, has decided on the targets and
weightings". It is that decision which precedes his statement: "Hence, I
published the LSC in the Gazette."
[126] The Minister returns to precisely the same theme in paragraph 279:
"I cannot comment on minute details covered in this ground of review. As I have
stated repeatedly, the LSC is a product of the legal sector. They embarked on
a process that stretched many years and ultimately decided on the type of
sector code that they required, and I did my constitutional function of publishing
it in the Gazette."
[127] The passage is significant not because the Minister was required personally to
master every minute detail of the Code. He plainly was not. It is significant
because of the distinction which the Minister himself draws between the
because of the distinction which the Minister himself draws between the
functions performed: the legal sector "ultimately decided on the type of sector
code that they required", while his function was to publish it.
,
44
[128] Finally, in paragraph 286 the Minister states:
"Again, the legal sector has decided on how best it regulate itself through the
LSC. I have simply carried out my constitutional functions ."
[129] This is consistent with the Minister's earlier statements that his role was to
"recognise and accept what the legal sector has collectively agreed on"; that
he had "done nothing except" execute the legislative obligation of gazetting the
Code; that the determination of optimal targets was "not my space"; that the
final Code was one which he was "duty-bound to gazette"; and that he gazetted
it "at the request of the legal sector".
[130] In conclusion: the Minister was entrusted with the statutory discretion. The
consultative and technical processes could inform its exercise; they could not
themselves supply the exercise of that discretion. Yet the Minister's own
affidavit repeatedly attributes the substantive choices embodied in the Legal
Sector Code to the legal sector. The sector had "collectively agreed" upon the
Code; the targets and weightings were matters for the legal profession and
stakeholders; the legal sector "in its wisdom" had decided upon them; the
sector had "ultimately decided on the type of sector code that they required";
and the sector had "decided on how best it regulate itself'. His own function is
correspondingly described as recognising and accepting what had been
agreed upon, gazetting the Code at the sector's request, and carrying out the
constitutional function of publication.
[131] In that light, the Minister's general statements that he "applied [his] mind" or
was "satisfied" do not cure the difficulty. Those conclusions must be supported
by an account demonstrating that he in fact exercised the discretion conferred
upon him. His affidavit instead demonstrates that, on matters central to the
content of the Code, he regarded the substantive determination as belonging
principally to the legal sector and understood his own role, once the sectoral
principally to the legal sector and understood his own role, once the sectoral
process had run its course, to be one of recognition, acceptance and
publication.
[132] This conclusion does not rest upon semantics or upon an isolated infelicity in
the drafting of the answering affidavit. It emerges from the Minister's repeated
45
and consistent description of his role at different points in the affidavit and in
response to different grounds of review. Read cumulatively, the passages
referred to provide compelling evidence of the Minister's own understanding of
the function he performed.
[133) That understanding is incompatible with the nature of the power conferred by
section 9(1 ). Parliament did not confer on the legal profession, the Steering
Committee, the Technical Committee, or departmental officials the power to
finally determine whether the proposed Legal Sector Code, in the form
presented, should be issued as a code of good practice. Their work was
indispensable to the process and could properly inform the Minister's decision.
But the Minister ultimately made the evaluative judgment. It required him to
decide for himself, on the material before him, whether the proposed Code and
its material departures from the Generic Codes were justified and whether the
exercise of the section 9(1) power was warranted. On the Minister's own
account, that is not the function he understood himself to be performing.
[134) This conclusion concerns the manner in which the Minister exercised the
statutory discretion entrusted to him. It does not determine the substantive
validity of the Legal Sector Code, question the legitimacy of its transformative
objectives, or detract from the extensive consultative process through which it
was developed.
[135] The Minister's failure to exercise that discretion in accordance with the
Constitution and the B-BBEE Act requires remittal for a fresh decision. That
consequence is regrettable, given the Code's intended role in advancing
transformation within the legal profession. In light of the underlying defect in
the decision to promulgate the Code, the substantive merits of the remaining
review grounds do not arise for determination in these proceedings.
[136) Should the Minister decide afresh to promulgate the Code, those challenges
[136) Should the Minister decide afresh to promulgate the Code, those challenges
may again require judicial determination. This Court expresses no view on their
merits. They must, if necessary, be considered in the light of the fresh decision
and the reasons supporting it.
t
46
[137] The constitutional imperative of transformation and the pressing need to
address persistent inequalities within the legal profession remain
undiminished. Transformation and the rule of law are mutually reinforcing
constitutional commitments: public power exercised to advance transformation
must comply with the Constitution and the empowering legislation.
Consultation, technical expertise and stakeholder participation may inform the
Minister's decision, but they cannot supply the judgment that Parliament has
required him to exercise. That responsibility remains his.
[138] For these reasons, the decision to promulgate the Legal Sector Code cannot
stand.
The appropriate remedy
[139] Having concluded that the Minister did not exercise the statutory discretion
conferred by section 9(1) of the 8-BBEE Act in accordance with the
Constitution, the Court must determine the appropriate remedy.
[140] The applicants sought an order reviewing and setting aside the Minister's
decision to promulgate the Legal Sector Code. They also sought declaratory
relief as to the Code's validity. In light of the conclusion reached in this
judgment, it is unnecessary to determine the remaining grounds of review
relating to the Code's substantive legality. Those issues were fully argued
before this Court and raise important questions concerning the interpretation
of the 8-BBEE Act, the Generic Codes of Good Practice and the Legal Sector
Code itself. Having concluded that the review succeeds because the statutory
discretion entrusted to the Minister was not exercised as required by the
Constitution, it would be inappropriate to express views on issues that may
arise in a different factual and legal context once the statutory discretion has
been lawfully exercised.
[141] The constitutional defect identified in this judgment therefore lies neither in the
transformative objectives of the Legal Sector Code nor in the extensive
consultative process that preceded its promulgation. As already pointed out,
47
the defect lies in how the Minister exercised the statutory discretion Parliament
entrusted to it.
[142] Section 172(1)(b) of the Constitution confers a broad remedial discretion on a
court deciding a constitutional matter. The overriding enquiry is whether the
order granted is just and equitable. Equally well established is the principle
that, where Parliament has entrusted a discretionary power to a particular
functionary, courts should ordinarily remit the matter to that functionary once
the impugned decision has been set aside. Substitution is reserved for
exceptional circumstances because Parliament has entrusted the evaluative
judgment required by the legislation to the holder of the statutory power, not to
the court.
[143] This Court has also not concluded that the Legal Sector Code is incapable of
lawful promulgation. Nor has it determined that the Code's substantive
provisions are inconsistent with either the Constitution or the 8-BBEE Act. It
has concluded only that the statutory discretion required before the Code could
lawfully be promulgated was not exercised in accordance with the Constitution.
That defect can be remedied only by requiring the Minister to exercise that
discretion afresh.
(144] In doing so, the Minister is not required to recommence the entire process that
led to the development of the Legal Sector Code. Nothing in this judgment
invalidates the extensive consultative work already undertaken, the technical
expertise brought to bear by the Steering Committee and the Technical
Committee, or the valuable contributions made by the many stakeholders who
participated in the process. Those remain part of the material that may properly
inform the Minister's decision. The constitutional requirement is simply that the
Minister himself must independently evaluate that material, apply his own
judgment to the statutory questions entrusted to him by section 9(1), and
satisfy himself that the requirements for the promulgation of the Legal Sector
Code have been met.
Code have been met.
(145] It is appropriate to add one final observation. This Court is acutely conscious
that the Legal Sector Code was developed to advance the constitutional
48
imperative of transformation within the legal profession. The evidence before
this Court demonstrates that meaningful transformation remains both
necessary and urgent. It is therefore regrettable that the Court cannot, at this
stage, determine the substantive challenges to the Code itself. The importance
of the Code's transformative objectives cannot, however, displace the
constitutional requirements governing the exercise of public power. The
Constitution requires that such power be exercised in accordance with the Rule
of Law
[146] The appropriate remedy is therefore to review and set aside the Minister's
decision to promulgate the Legal Sector Code and to remit the matter to the
Minister for reconsideration in accordance with this judgment.
Costs
[147] It remains to consider costs. These proceedings concern the lawfulness of the
Minister's exercise of public power under section 9( 1) of the B-BBEE Act. The ,
applicants have substantially succeeded in establishing that the Minister did
not exercise the statutory discretion conferred on him in accordance with the
requirements of the Constitution and the B-BBEE Act. Moreover, in Biowatch
Trust v Registrar, Genetic Resources and Others,30 the Constitutional Court
held that, in constitutional litigation between a private party and the State, a
successful private litigant should ordinarily be awarded its costs against the
State. Consistent with that principle, the applicants are entitled to their costs
against the Minister.
[148] The relief granted is directed against the Minister. Although the remaining
respondents participated in the proceedings and made submissions
concerning the development of the Legal Sector Code and the transformation
of the legal profession, no relief is granted against them. Accordingly, there is
no basis for a costs order against those respondents.
30 Supra.
49
[149] The first respondent must accordingly pay the applicants' costs (in both
applications), including the costs of two counsel, where so employed. The
matter's significance and complexity of the issues justify counsel's fees on
Scale C.
Order: Case no 2024-149523
1. The decision of the Minister of Trade, Industry and Competition, published
under Government Notice 5221 in Government Gazette 51271 of 20 September
2024, promulgating the Legal Sector Code in terms of section 9(1) of the Broad
Based Black Economic Empowerment Act 53 of 2003, is reviewed and set
aside.
2. The matter is remitted to the Minister of Trade, Industry and Competition for
reconsideration.
3. The Minister of Trade, Industry and Competition, is ordered to pay the costs of
the applicants, including the costs of two counsel where so employed on scale
C.
4. No order as to costs in respect of the remainder of the respondents.
Order Case No 2025-033365
1. The decision of the Minister of Trade, Industry and Competition, published
under Government Notice 5221 in Government Gazette 51271 of 20 September
2024, promulgating the Legal Sector Code in terms of section 9(1) of the Broad
Based Black Economic Empowerment Act 53 of 2003, is reviewed and set
aside.
2. The matter is remitted to the Minister of Trade, Industry and Competition for
reconsideration.
3. The Minister of Trade, Industry and Competition, is ordered to pay the costs of
the applicant, including the costs of two counsel where so employed on scale
C.
,
50
4. No order as to costs in respect of the remainder of the respondents.
Date of hearing:
Order made:
A SE VAN NIEUWENHUIZEN, N
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
BASSON,AC
JUDGE OF THE HIGH COURT
GAUTENG DIVISIO PRETORIA
MOKOSE, S
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
8 May 2026
7 October 2026
Appearances:
1st Applicant: Adv Bham SC
Adv Sisilana SC
Adv Mbikiwa
Instructed by: Deneys Reitz
2nd - 4th Applicant Adv Ngcukaitobi SC
Adv Bleazard
Instructed by:
1st Respondent
Instructed by:
2nd Respondent
Instructed by:
3rd Respondent
Instructed by:
Adv Makhotso
Adv Lengane
Adv Davis
Adams & Adams Inc
Adv Nalane SC
Adv Ramatselela
The State Attorney, Pretoria
Adv Bokaba SC
Adv Ramogale
Adv Mokgoroane
Damons Magardie Richardson Attorneys
Adv Matebese SC
Adv Magano
Adv Chabalala
Adv Khatle
The State Attorney, Pretoria
51
4th Respondent
Instructed by:
5th Respondent
6th Respondent
Instructed by:
7th Respondent
Instructed by:
8th Respondent
Instructed by:
9th Respondent
Instructed by:
1 Qth Respondent
Instructed by:
Adv Motau SC
Adv Salukazana
Adv Kruger
Mothle Jooma Sabdia Inc
No appearance
Adv Sella SC
Matshego Ramagaga Attorneys Inc
Adv Sikhakhane SC
Adv Mpofu
Ngeno and Mteto Inc
Adv Dewranc e SC
Adv Ramaili SC
Adv Morri s
Adv Makhaye
Adv Kubheka
Mogaswa and Associates Inc
Adv Arend se SC
Mothle Joom a Sabdia Inc
Advlp ser
Adv Brown
Adv Rowji
Mpakati Inc Attorneys
52
11th Respondent
12th Respondent
Instructed by:
Amicus Curiae
Instructed by:
Solidarity
Instructed by:
No appearance
Adv Baloyi SC
Adv Manganye
Adv Neala
Adv Pillay
Lebese Attorneys
Adv Hofmeyer SC
Adv McConnachie
Adv Naidoo
Adv Malinga
Saney Mbatha & Assoc iates Inc
Adv Bekker SC
Adv Groenewald
Serfontein Viljoen & Swart
53