The Pretoria High Court heard on Thursday how transformation battles within the advocates’ profession stretch back decades, with senior counsel recounting resistance to black lawyers and opposition to the elevation of one of the Cape Bar’s first white female silks.
Adv Norman Arendse SC delivered the account during proceedings over the legality of the Legal Sector Code, a sector-specific B-BBEE framework aimed at transformation in the legal profession.
Arendse was addressing a full bench comprising Judge Nicolene Janse van Nieuwenhuizen, Judge Selemang Mokose and Judge Annali Basson.
‘Text, context and purpose of legislation’
Opening his submissions, Arendse told the court that constitutional interpretation required judges to consider “the text, the context and the purpose” of legislation.
“The law is all about context,” he said, referencing remarks by former South African judge and former UK Lord Chief Justice Johann Kriegler.
Arendse argued that the context surrounding the Legal Sector Code showed why transformation measures had become necessary after years of voluntary reform attempts within the advocates’ profession.
Struggle for access to work
Referring to affidavits filed by the Johannesburg Society of Advocates, Arendse said the figures before the court showed that Black advocates and Black women advocates continued to struggle for access to work.
“This code that is under debate is not only rational and reasonable, but it’s also necessary,” he submitted.
Arendse said one of the central problems was not entry into the profession but survival after qualification.
“Young black advocates, especially young female advocates, come to the Bar, so entry is not the problem,” he told the court.
“It is once they’ve done their pupillage or mentorship and they qualify now to become practising advocates, and they take up chambers. It’s very difficult.”
Push for reform
Arendse reflected on attempts by organisations such as Advocates for Transformation, the Black Lawyers Association and the National Association of Democratic Lawyers to reform briefing patterns and access to work within the profession.
Arendse, who said he became the first black chairperson of the General Council of the Bar in 2004, recounted how transformation advocates were once told they had “no locus standi” to speak on transformation because they belonged to attorneys’ organisations.
According to Arendse, engagement with Bar leadership only began years after the advent of democracy.
“But fast forward,” he said, “our attempts at the GCB and between the GCB and organisations like BLA, NADEL and others represented here today have failed.”
“This voluntarist, soft-touch approach has failed.”
Plight of women advocates
Arendse also recounted opposition faced by women advocates within the profession, including resistance to the elevation of one of the first white female senior counsel at the Cape Bar.
He said members of the silk committee succeeded in supporting her elevation after critics questioned the significance of her work because she mainly practised family law in the Third Division court.
“What was the argument raised against her?” Arendse asked.
“Oh, what does she do? She runs up and down to Third Division every day doing family law work.”
Arendse said the opposition ignored barriers women advocates faced in accessing commercial work and litigation opportunities.
“She subsequently became one of our finest judges at the Cape Bar,” he said.
The Legal Sector Code, introduced under the Broad-Based Black Economic Empowerment framework by Trade and Industry Minister Parks Tau, seeks to establish transformation targets for law firms and briefing patterns within the legal sector.
Opponents argue the Code is unconstitutional and irrational, while supporters maintain it is necessary to dismantle racial and gender disparities within the profession.
- The Pretoria High Court heard on transformation struggles within the advocates’ profession, highlighting resistance to black lawyers and opposition to early white female silks at the Cape Bar.
- Advocate Norman Arendse SC argued that the Legal Sector Code—a B-BBEE framework for legal profession transformation—is necessary due to ongoing difficulties faced by black advocates, especially women, in gaining and sustaining work post-qualification.
- Arendse emphasized that the problem lies not in entry into the profession but survival and access to chambers, citing failed voluntary reforms by groups like Advocates for Transformation and the Black Lawyers Association.
- He also detailed resistance women advocates faced, noting critics dismissed family law work as less significant despite barriers to accessing commercial law and litigation opportunities; the woman initially opposed later became a respected judge.
- The Legal Sector Code aims to set transformation targets for law firms and briefing patterns; while supporters see it as essential for addressing racial and gender disparities, opponents claim it is unconstitutional and irrational.
Adv Norman
“
“
“
“It is once they’ve done their pupillage or mentorship and they qualify now to become practising advocates, and they take up chambers. It’s very difficult.”
“But fast forward,” he said, “our attempts at the GCB and between the GCB and organisations like BLA, NADEL and others represented here today have failed.”
“
He said members of the silk committee succeeded in supporting her elevation after critics questioned the significance of her work because she mainly practised family law in the
“What was the argument raised against her?”
“Oh, what does she do?
“
Opponents argue the Code is unconstitutional and irrational, while supporters maintain it is necessary to dismantle racial and gender disparities within the profession.
