South Africa will struggle to transform its judiciary unless black advocates and women receive meaningful access to work at the bar, Advocate Norman Arendse SC told the Pretoria High Court on Thursday during the Legal Sector Code challenge.
Arendse made the submissions while defending the Legal Sector Code, a sector-specific B-BBEE framework introduced under the Broad-Based Black Economic Empowerment Act to promote transformation within the legal profession.
The matter is being heard before a full bench comprising Judge Nicolene Janse van Nieuwenhuizen, Judge Selemang Mokose, and Judge Annali Basson.
Opponents of the code argue that parts of it are unconstitutional, irrational, and harmful to law firms, particularly provisions dealing with ownership targets, management control and briefing patterns involving advocates.
But Arendse argued that years of voluntary transformation efforts within the advocates’ profession had failed to change patterns of access to work for black practitioners.
“If we don’t have meaningful transformation in the legal sector, we are not going to transform our judiciary and other sectors in our society,” he submitted.
Arendse relied heavily on an affidavit filed by the Johannesburg Society of Advocates (JSA), which adopted what he described as a neutral position in the litigation but provided evidence about transformation within the profession.
According to the affidavit, the JSA has more than 1 200 members, making it the largest constituent member of the General Council of the Bar.
Organisation’s transformation history
Arendse told the court the affidavit documented the organisation’s transformation history and demographic composition, as well as the possible impact the Legal Sector Code could have on briefing patterns involving organs of state and public entities.
He traced the organisation’s history from 1902, when its first member signed the register of the then Transvaal Bar, to 1926, when the first woman was admitted, and 1956, when Duma Nokwe became its first black member.
“The JSA plays an important part in determining the future composition of the judiciary,” Arendse told the court. “That is why this code is important.”
According to Arendse, transformation within the judiciary was occurring faster than transformation at the bar because judicial appointments could be made directly through institutions such as the Judicial Service Commission.
At the Bar, however, advocates depended on attorneys and clients for work.
“As much as you are silk, if you want to appoint a junior black counsel or a junior female counsel, you clearly have to have the permission of the client or the instructing attorney,” he said. “It’s not a simple matter.”
Arendse argued that years of engagement between constituent bars and organisations such as Advocates for Transformation, the Black Lawyers Association, and the National Association of Democratic Lawyers had only partially succeeded.
“This voluntarist, soft-touch approach has failed,” he said.
Entry into the profession
According to Arendse, transformation efforts had improved entry into the profession for black advocates and black women advocates, but access to work remained limited after qualification.
“It has worked to the extent of making sure that entry is made available to young Black advocates and Black female advocates in particular,” he said. “But that is where it ends.”
Arendse also told the court that successive justice ministers since democracy, including former ministers Dullah Omar, Penuell Maduna, and Brigitte Mabandla, had grappled with transformation within the legal profession.
He argued that the remaining legal question before court was whether the Code was reasonably capable of achieving the objectives of the empowering legislation.
“These are all matters of policy,” Arendse submitted.
“There’s ample evidence over many years that demonstrates very clearly that there is a dire need for transformation in the legal sector.”
- South Africa will struggle to transform its judiciary unless black advocates and women receive meaningful access to work at the bar, Advocate Norman Arendse SC told the Pretoria High Court on Thursday during the Legal Sector Code challenge.
- Arendse made the submissions while defending the Legal Sector Code, a sector-specific B-BBEE framework introduced under the Broad-Based Black Economic Empowerment Act to promote transformation within the legal profession.
- The matter is being heard before a full bench comprising Judge Nicolene Janse van Nieuwenhuizen, Judge Selemang Mokose, and Judge Annali Basson.
- Opponents of the code argue that parts of it are unconstitutional, irrational, and harmful to law firms, particularly provisions dealing with ownership targets, management control and briefing patterns involving advocates.
- But Arendse argued that years of voluntary transformation efforts within the advocates’ profession had failed to change patterns of access to work for black practitioners.
