Adv Terry Motau SC told the Pretoria High Court on Thursday that attorneys remain central to briefing decisions at the Bar and cannot avoid responsibility for patterns that continue to limit access to work for Black advocates and Black women advocates.
Motau was addressing a full bench comprising Judge Nicolene Janse van Nieuwenhuizen, Judge Selemang Mokose and Judge Annali Basson during the challenge to the Legal Sector Code, a sector-specific B-BBEE framework aimed at transforming the legal profession.
Appearing for Advocates for Transformation, Motau focused on arguments surrounding briefing patterns and whether attorneys or clients ultimately decide which advocates receive work.
‘Attorneys liable for advocates’ fees’
Referring the court to the case of Solomon v Janki Pasad, Motau argued that the Legal Practice Act and the Code of Conduct made it clear that attorneys bear legal responsibility for advocates’ fees and therefore play a direct role in briefing decisions.
“An attorney, as a rule of law, is liable for the fees charged by the advocate he or she has briefed,” Motau told the court while quoting from the judgment.
He said the case undermined arguments that briefing decisions rest solely with clients and therefore fall outside the reach of transformation measures contained in the Legal Sector Code.
“It puts paid to this notion that ultimately it’s the client,” Motau submitted.
Preferences ‘linked to exposure to work’
While acknowledging that some clients insist on specific counsel, Motau argued that client preferences were themselves shaped by patterns of exposure and access to work accumulated over time.
“That is simply and purely a product of exposure to work,” he said.
Motau told the court that young Black advocates and Black women advocates continue to encounter barriers once they enter practice because firms often refuse to brief them without prior experience in specialised fields.
“They are told, ‘Well, we don’t know you,'” he said.
According to Motau, requests for advocates to provide detailed profiles often operate as barriers rather than gateways to work because junior practitioners are denied opportunities to build expertise.
“You’ve given me a reason not to brief you,” he said in describing how the system functions.
Janse van Nieuwenhuizen recounted how former judge Judith Satchwell, when still practising as an advocate, was once asked by attorneys whether she did company law.
“She said, ‘Does it involve litigation?’ They said yes. She said, ‘I do litigation,’ Janse van Nieuwenhuizen said, sending the gallery to chuckles.
‘New barriers continued to emerge’
Motau argued that transformation within the profession remained difficult because new barriers continued to emerge.
“Transformation becomes a moving target, and people find barriers to entry rather than opening them up,” he submitted.
Motau conceded that the Legal Sector Code was not a complete answer to transformation problems within the legal profession but argued it represented a necessary starting point.
“The legal sector code is not in and of itself a perfect response,” he said.
“It is but a first step in an attempt for the profession to do more.”
- Adv Terry Motau SC told the Pretoria High Court that attorneys bear responsibility for briefing patterns that limit work access for Black advocates and Black women, emphasizing their central role in briefing decisions.
- Motau cited the Legal Practice Act and previous judgments to argue attorneys are legally liable for advocates’ fees, countering claims that only clients decide which advocates get briefed.
- He highlighted that client preferences often reflect entrenched exposure patterns, with young Black advocates facing barriers due to lack of specialized work experience.
- Requests for detailed advocate profiles were identified as gatekeeping tactics that hinder junior Black practitioners from gaining opportunities to build expertise.
- While acknowledging the Legal Sector Code is not a perfect solution, Motau described it as an essential first step toward transforming the legal profession amidst ongoing emerging barriers.
