The push to transform the legal fraternity in the country is a step closer to becoming reality following the publication of the draft legal sector code (LSC) for public comment.
The draft LSC, if adopted, will be the first of its kind in the country as members of the legal profession do not have a sector code to guide them in addressing the imbalances and inequalities in the profession.
The draft code is in line with the BBBEE Act of 2013, which provides for the minister of trade, industry and competition to issue codes of good practice on BEE in the specific sectors.
According to the draft LSC, despite the dawn of democracy and the new dispensation in April 1994, the South African legal profession has continued to face challenges in achieving transformation.
“The top positions and roles in this sector, from senior partners and directors of law firms to
senior advocates, remain largely homogeneous and are mainly occupied by white male practitioners. There is a marked absence of diversity on the basis of race and gender.
“Although there have been pockets of improvement, an overview of the South African legal profession shows that despite an increase in the numbers of admitted black legal practitioners, there are still not enough black-owned large legal firms in the country that can compete in size, scale and service offerings with the traditionally large established white-controlled law firms. Many of these large firms have become multinational firms with global brands and guidance, at times, at the expense of the local transformation and empowerment policies.”
Transformation of the legal profession, particularly with regard to briefing patterns, has been a topical and contentious issue in South Africa for many years.
Some of the key features of the draft LSC are:
- A legal sector transformation fund will be established. The objective of the fund will be to provide financial assistance and support black legal practitioners, especially black women and black people with disabilities;
- In terms of enterprise and supplier development, the draft LSC is applicable specifically to attorneys and sets a 50% target and a higher percentage for procurement spend from suppliers that are at least 75% black owned and at least 51% black women owned; and
- In terms of management control, the percentage of equity participation of black women legal practitioners as a percentage of board members is set at 35% in year one, 40% in year two and 45% in year three.
Minister of Trade, Industry and Competition Ebrahim Patel said the draft LSC seeks to eliminate barriers to entry and to provide equal opportunities by empowering black practitioners. “There has been a lack of sufficient and/or quality legal instructions to black attorneys and advocates from the private sector, and organs of state and public entities. The marginalisation of black law firms and advocates manifests itself in the continuing award of major instructions in specialised areas of law and litigation to white-owned law firms or foreign-owned or associated law firms and white advocates,” he said.
“This condemns black law firms and advocates to fulfilling largely peripheral roles and to areas of law such as criminal and personal injury cases or being black economic empowerment partners rather than as leading partners in such large transactions and/or litigation matters.”
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