A counsel for the minister of trade and industry, Parks Tau, on Wednesday defended the Legal Sector Code in court as a constitutional obligation aimed at advancing transformation in the legal profession, arguing that the process followed all legal requirements and that transformation in South Africa was “non-negotiable”.
Adv Fana Nalane SC, appearing for Tau in a challenge brought against the Legal Sector Code, told the court the framework was rooted in the Constitution and formed part of South Africa’s broader commitment to redress historical injustice and exclusion.
“Transformation in this country is non-negotiable,” Nalane argued. “It is written in the DNA of this country. It is also embedded in our social contract, Constitution.”
Minister ‘not the code’s author’
Nalane said the minister’s role in the process was limited and carefully regulated by law, insisting that Tau was not the author of the code but merely fulfilled a statutory function within a broader sector-driven process.
“This is not the minister’s code. It is a legal sector code,” Nalane submitted. “The minister is a midwife. The midwife must ensure that the baby is healthy, in good health, and can survive the rigours of life.”
Consultative process birthed code
He told the court that the Legal Sector Code had been developed through an extensive consultative process involving stakeholders across the legal profession, including some of the applicants now challenging the framework.
According to Nalane, those opposing the code had participated throughout the drafting stages, raised objections and submitted comments during consultations but were now attempting to revisit policy disagreements through litigation.
“The applicants participated in the entire process of forming the legal practice code. They made comments. They had concerns about certain structures of the code,” he said.
Nalane argued that the case before the court was not about whether the applicants preferred a different version of the code but whether the minister had acted lawfully and within the powers granted to him by legislation.
“The court is not here to decide who is right and who is wrong,” he said.
Voluntary legislation
He further argued that the Legal Sector Code was voluntary and not compulsory legislation.
“The code is voluntary. If you don’t like it, you don’t need to have it,” Nalane submitted.
In a dramatic historical analogy, Nalane linked the transformation debate to the economic consequences of colonialism and apartheid, arguing that Black legal practitioners had historically been subjected to systematic exclusion from economic participation and ownership within the legal sector.
Referring to colonial “scorched earth” policies, Nalane said Black professionals had similarly been deprived of opportunities, resources and institutional support over generations.
“Black legal practitioners too have been the victims of scorched-earth policies,” he argued.
Nalane also told the court that the Legal Sector Code established specialised structures to oversee implementation and interpretation of the framework, rather than leaving those functions solely to government.
The matter continues before the court.
- Adv Fana Nalane SC defended the Legal Sector Code in court as a constitutional mandate for transformation in South Africa's legal profession, emphasizing it is “non-negotiable” and rooted in the Constitution.
- The minister of trade and industry, Parks Tau, was described as playing a limited, regulated role in the process, acting as a “midwife” to the sector-driven code rather than its author.
- The code was developed through extensive consultations with legal sector stakeholders, including the current challengers, who participated and raised objections during drafting stages.
- Nalane argued the court’s role is limited to assessing the minister’s lawful exercise of powers, not deciding policy preferences or the code’s content.
- The Legal Sector Code is voluntary, not compulsory legislation, aimed at addressing historical exclusion of Black legal practitioners by colonial and apartheid-era policies, with specialized structures established for oversight.
A counsel for the minister of trade and industry, Parks Tau, on Wednesday defended the Legal Sector Code in court as a constitutional obligation aimed at advancing transformation in the legal profession, arguing that the process followed all legal requirements and that transformation in
Adv Fana Nalane SC, appearing for Tau in a challenge brought against the Legal Sector Code, told the court the framework was rooted in the Constitution and formed part of
“Transformation in this country is non-negotiable," Nalane argued. “It is written in the DNA of this country. It is also embedded in our social contract, Constitution.”
Nalane said the minister's role in the process was limited and carefully regulated by law, insisting that Tau was not the author of the code but merely fulfilled a statutory function within a broader sector-driven process.
“
He told the court that the Legal Sector Code had been developed through an extensive consultative process involving stakeholders across the legal profession, including some of the applicants now challenging the framework.
“
Nalane argued that the case before the court was not about whether the applicants preferred a different version of the code but whether the minister had acted lawfully and within the powers granted to him by legislation.
“
He further argued that the Legal Sector Code was voluntary and not compulsory legislation.
“
In a dramatic historical analogy, Nalane linked the transformation debate to the economic consequences of colonialism and apartheid, arguing that Black legal practitioners had historically been subjected to systematic exclusion from economic participation and ownership within the legal sector.
“Black legal practitioners too have been the victims of scorched-earth policies,” he argued.
Nalane also told the court that the Legal Sector Code established specialised structures to oversee implementation and interpretation of the framework, rather than leaving those functions solely to government.
