Adv Zinzile Matebese, appearing for Justice Minister Mmamoloko Kubayi before the High Court in Pretoria on Wednesday, argued that the challenge to the Legal Sector Code cannot be separated from South Africa’s apartheid history and the constitutional obligation to transform the economy.
Matebese told the court the rationality challenge must be assessed against the historical context that gave rise to transformation measures such as the Legal Sector Code and broader broad-based Black economic empowerment policies.
He argued that the court must examine whether there is a rational connection between the Legal Sector Code and the government purpose it seeks to achieve – namely, the economic empowerment and inclusion of Black South Africans excluded under apartheid.
Referring to the Constitutional Court of South Africa judgment in Tshwane City v AfriForum, Matebese quoted former Chief Justice Mogoeng Mogoeng describing apartheid as a system that “found nothing wrong with putting one person above another for no other reason but the colour of their skin”.
Matebese said South Africa’s constitutional values require measures aimed at dismantling entrenched racial privilege and exclusion.
“We are here,” he argued, “because there are people who do not want to give away the privileges obtained under that crime against humanity.”
Correcting structural imbalances
According to Matebese, the legal profession historically denied Black South Africans meaningful economic participation and positions of power. He argued that transformation policies are intended to correct those structural imbalances.
He also criticised some of the law firms challenging the code, saying they claimed to support transformation while opposing measures designed to achieve it.
Matebese pointed to figures allegedly contained in court papers showing low representation of Black professionals and women in senior positions at some firms. He argued that some firms relied heavily on their Level 1 B-BBEE status ratings under generic codes while failing to demonstrate substantive racial transformation in leadership structures.
“To them,” Matebese submitted, “transformation is about the level of B-BBEE status they have acquired. It is not about physical human beings occupying positions of power.”
He argued that Section 9(2) of the Constitution explicitly authorises measures designed to advance persons disadvantaged by unfair discrimination and that the state is constitutionally obliged to pursue substantive equality.
Matebese said the Legal Sector Code must therefore be understood as part of the constitutional project of inclusion, reconciliation and redistribution of economic opportunity in post-apartheid South Africa.
- Adv Zinzile Matebese argued that the Legal Sector Code challenge must be viewed within South Africa's apartheid history and the constitutional need to transform the economy.
- The court should assess if there is a rational connection between the Legal Sector Code and its goal of empowering Black South Africans historically excluded under apartheid.
- Matebese cited constitutional values requiring measures to dismantle racial privilege and criticized law firms opposing the code despite claiming to support transformation.
- He highlighted low representation of Black professionals and women in leadership at some firms and argued that true transformation requires substantive changes, not just high B-BBEE ratings.
- The Legal Sector Code is presented as an essential part of advancing substantive equality, inclusion, and economic redistribution in post-apartheid South Africa, authorized under Section 9(2) of the Constitution.
Adv Zinzile Matebese, appearing for Justice Minister Mmamoloko Kubayi before the High Court in Pretoria on Wednesday, argued that the challenge to the Legal Sector Code cannot be separated from
Matebese told the court the rationality challenge must be assessed against the historical context that gave rise to transformation measures such as the Legal Sector Code and broader broad-based Black economic empowerment policies.
He argued that the court must examine whether there is a rational connection between the Legal Sector Code and the government purpose it seeks to achieve – namely, the economic empowerment and inclusion of Black
Matebese said
“We are here,” he argued, “because there are people who do not want to give away the privileges obtained under that crime against humanity.”
He also criticised some of the law firms challenging the code, saying they claimed to support transformation while opposing measures designed to achieve it.
Matebese pointed to figures allegedly contained in court papers showing low representation of Black professionals and women in senior positions at some firms. He argued that some firms relied heavily on their Level 1 B-BBEE status ratings under generic codes while failing to demonstrate substantive racial transformation in leadership structures.
“To them,” Matebese submitted, “transformation is about the level of B-BBEE status they have acquired. It is not about physical human beings occupying positions of power.”
He argued that Section 9(2) of the Constitution explicitly authorises measures designed to advance persons disadvantaged by unfair discrimination and that the state is constitutionally obliged to pursue substantive equality.
Matebese said the Legal Sector Code must therefore be understood as part of the constitutional project of inclusion, reconciliation and redistribution of economic opportunity in post-apartheid
