Claims that the Legal Sector Code will have a “catastrophic” effect on law firms are exaggerated and unsupported by expert evidence, Advocate Bogoshi Bokaba told the high court on Thursday during a heated challenge to the legal sector’s new B-BBEE framework.
Bokaba was addressing a full bench of the Pretoria High Court in Pretoria comprising judges Nicolene Janse van Nieuwenhuizen, who presided alongside Selemang Mokose and Annali Basson, in a case challenging the validity of the Legal Sector Code.
The code, introduced by trade and industry minister Parks Tau under the Broad-Based Black Economic Empowerment framework, aims to set specific transformation targets for law firms, including ownership, management control, and briefing patterns involving advocates.
Opponents of the code argue that several provisions are unconstitutional, irrational and economically damaging to legal practices.
Impact will be limited
Some applicants contend that the framework interferes with how attorneys and clients select advocates and unfairly penalises firms through B-BBEE scoring mechanisms.
But Bokaba told the court that expert analysis placed before the court contradicted the claims of economic devastation and showed they were overstated.
Referring to a report, Bokaba said the evidence showed that firms would likely experience a limited impact.
“There won’t be any catastrophe after all,” he submitted.
According to Bokaba, the report assessed the Code using recognised verification methodologies across the entire scorecard structure and found that firms currently holding Level 1 B-BBEE ratings under the generic code would likely face “a drop of two levels at the most”.
“So it’s not a catastrophe, even with the introduction of the code,” he argued.
Bokaba suggested the applicants’ predictions differed because they used methodologies inconsistent with those applied by recognised verification specialists.
He also rejected claims that the code unfairly excludes non-lawyers from management control considerations.
“The focus of the Code is on legal decision-making and authority, and the whole aim of the code is to benefit legal practitioners,” Bokaba argued.
However, he added that non-lawyer employees within firms would still indirectly benefit from the broader transformation objectives of the framework.
One of the most contested issues before the court has been the Code’s provisions dealing with briefing patterns between attorneys and advocates.
Applicants challenging the framework argued that attorneys do not exercise complete control over which advocates are briefed because clients sometimes insist on particular counsel.
Bokaba dismissed the criticism, telling the court that attorneys remain central to briefing decisions.
“Behind every counsel in this court, there is an attorney,” he said. “No counsel is appearing on its account. We have all been briefed by attorneys.”
Minister relied on data and research
While acknowledging that some clients may occasionally express preferences regarding counsel, Bokaba said such situations were exceptions rather than the norm.
He argued there was nothing improper about the code creating incentives aimed at diversifying briefing patterns because the framework imposed no direct legal obligation on firms.
Bokaba also defended the evidentiary basis used by the minister when developing the code after concerns were raised about reliance on statistics from the Legal Practice Council (LPC).
He told the court that the minister had relied not only on LPC data but also on research compiled by the Centre for Applied Legal Studies.
“The point here is that the data was before the minister. It was not an ex post facto event or claim,” Bokaba submitted.
The hearing later turned to arguments relating to the advisory council process, although members of the bench indicated the issue had not been fully ventilated in the papers before court.
Janse van Nieuwenhuizen cautioned Bokaba that advancing submissions outside the pleaded issues “might be problematic”, suggesting the legal team reconsider the matter during the tea adjournment.
Bokaba responded light-heartedly: “There’s a big team behind me.”
- Advocate Bogoshi Bokaba argued in the Pretoria High Court that claims of the Legal Sector Code causing catastrophic effects on law firms are exaggerated and not supported by expert evidence.
- The Legal Sector Code, part of B-BBEE measures, sets transformation targets for law firms regarding ownership, management control, and briefing patterns but opponents claim it is unconstitutional and economically harmful.
- Expert reports presented indicate only limited impact on firms, with a possible two-level drop in B-BBEE ratings, contradicting applicants’ predictions of severe damage.
- Bokaba defended the code’s focus on legal decision-making and briefing patterns, stating attorneys primarily control advocate selection despite occasional client preferences.
- The minister’s development of the code relied on comprehensive data from the Legal Practice Council and research from the Centre for Applied Legal Studies, supporting its evidentiary basis.
Claims that the Legal Sector Code will have a “catastrophic” effect on law firms are exaggerated and unsupported by expert evidence, Advocate
Bokaba was addressing a full bench of the Pretoria High Court in Pretoria comprising judges Nicolene Janse van Nieuwenhuizen, who presided alongside
Opponents of the code argue that several provisions are unconstitutional, irrational and economically damaging to legal practices.
Some applicants contend that the framework interferes with how attorneys and clients select advocates and unfairly penalises firms through B-BBEE scoring mechanisms.
But Bokaba told the court that expert analysis placed before the court contradicted the claims of economic devastation and showed they were overstated.
“
“So it’s not a catastrophe, even with the introduction of the code,” he argued.
Bokaba suggested the applicants’ predictions differed because they used methodologies inconsistent with those applied by recognised verification specialists.
He also rejected claims that the code unfairly excludes non-lawyers from management control considerations.
“
However, he added that non-lawyer employees within firms would still indirectly benefit from the broader transformation objectives of the framework.
One of the most contested issues before the court has been the Code’s provisions dealing with briefing patterns between attorneys and advocates.
Applicants challenging the framework argued that attorneys do not exercise complete control over which advocates are briefed because clients sometimes insist on particular counsel.
Bokaba dismissed the criticism, telling the court that attorneys remain central to briefing decisions.
“
While acknowledging that some clients may occasionally express preferences regarding counsel, Bokaba said such situations were exceptions rather than the norm.
He argued there was nothing improper about the code creating incentives aimed at diversifying briefing patterns because the framework imposed no direct legal obligation on firms.
Bokaba also defended the evidentiary basis used by the minister when developing the code after concerns were raised about reliance on statistics from the Legal Practice Council (LPC).
He told the court that the minister had relied not only on LPC data but also on research compiled by the Centre for Applied Legal Studies.
“
Janse van Nieuwenhuizen cautioned Bokaba that advancing submissions outside the pleaded issues “might be problematic”, suggesting the legal team reconsider the matter during the tea adjournment.
Bokaba responded light-heartedly: “
