The Pretoria High Court has overturned Trade Minister Parks Tau’s decision to introduce new BEE rules for lawyers. It found that he failed to assess the measures independently.
The ruling sends the Legal Sector Code back to Tau, reopening a dispute over black ownership and lucrative legal work. The code sets targets for black ownership, management and access to legal work. It also seeks to improve opportunities for Black women.
READ MORE: BEE remains a tick-box compliance exercise, not true empowerment
In Wednesday’s judgment, three judges said Tau treated his duty to decide as merely a duty to publish. But the judges found that Tau left crucial decisions to committees and professional bodies instead of exercising his authority.
Tau told the court:
“I have done nothing except fulfil my legislative obligation to gazette the LSC.”
The judges, however, said the evidence showed he misunderstood his responsibility. They found no adequate evidence that Tau had independently assessed the reasons for departing from the general BEE rules.
His claims that he had applied his mind could not overcome his repeated descriptions of merely implementing the profession’s wishes.
The challenge came from Deneys Reitz, Bowman Gilfillan, Webber Wentzel and Werksmans, alongside trade union Solidarity. They argued that the code imposed unjustified ownership and management requirements. They also questioned how the code deviated from existing BEE regulations.
The court did not decide whether those measures were themselves unlawful or unconstitutional.
Black lawyers still excluded from ownership
The judges stressed that the need to transform the legal profession remains urgent.
Evidence before the court showed that Black practitioners now constitute the majority of practising attorneys. Yet they have not secured comparable influence over ownership and major commercial work.
The Legal Practice Council told the court that white practitioners still account for approximately 72% of equity partners.
Black women face additional barriers to senior positions, valuable briefs and ownership, according to submissions before the judges.
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The respondents argued that general BEE rules had failed to tackle these inequalities. They said the legal profession needed its code to change who controls firms and who receives high-value work.
The judges accepted transformation as a constitutional duty rather than an optional government policy, but they distinguished the need for change from the minister’s responsibility to make a lawful decision.
Tau inherited unresolved concerns
Tau’s predecessor, Ebrahim Patel, had declined to approve the proposed code. He questioned whether departures from general BEE rules had sufficient legal and factual support.
Tau took office in July 2024 and approved the code the following month. The government published it in September 2024. He told the court he had relied on officials, committees and consultations with the legal profession.
READ MORE: Black women lawyers will be ‘back out in the cold’ if code falls, court told
The court said he could rely on advice but could not surrender his decision-making responsibility. It overturned his decision and ordered him to reconsider the code.
The judges said Tau need not restart the entire consultation process. However, he must independently evaluate the evidence and exercise his statutory powers.
The court imposed no deadline for his fresh decision.
It also ordered Tau to pay the applicants’ legal costs, including the costs of two counsels where they were employed.
- The Pretoria High Court overturned Trade Minister Parks Tau's decision to introduce new BEE rules for lawyers, finding he failed to independently assess the measures.
- The Legal Sector Code, which aims to set targets for black ownership, management, and access to legal work, has been sent back to Tau for reconsideration.
- The court ruled that Tau treated his responsibility as merely a duty to publish, leaving key decisions to committees instead of exercising his authority.
- Evidence showed Black lawyers remain excluded from ownership and major commercial work, with white practitioners holding approximately 72% of equity partner positions.
- Tau must independently evaluate the evidence and exercise his powers in reconsidering the code, with no deadline imposed and must pay the applicants' legal costs.
