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Sikonathi Mantshantsha | 29 February 2024

Organisations representing black lawyers have filed papers with the Pretoria High Court to compel the Minister of Trade, Industry and Competition (DTIC) to gazette the Legal Sector Code (LSC) of the Broad-Based Black Economic Empowerment Act to facilitate transformation in the sector.

The organisations say promulgation of the code will help deal with the "discriminatory patterns of procurement".

Some black lawyers argue that briefing patterns discriminate against them.

The organisations say Ebrahim Patel's failure to promulgate the LSC is unlawful and discriminates against black law practitioners. 

The organisations represent black lawyers and are led by the Black Conveyancers Association, the National Association of Democratic Lawyers, the Black Lawyers Association, and the Pan African Bar Association of South Africa.

The lawsuit comes in the wake of a legal controversy in which Gauteng High Court Judge Mandlenkosi Motha recently demanded counsel in his court to explain why there was not a single black lawyer in a team arguing a BEE case before his court.

The judge questioned whether the absence of a single black lawyer did not amount to a violation of the equality clause of Section 9 of the Constitution. 

"One of the most significant indicators of this inequality is the fact that major commercial and corporate instructions are monopolised by large, majority white-owned firms," said Raphael Grant Brink, who filed the papers on behalf of the organisations on Thursday. "In contrast, black legal practitioners continue to suffer discrimination, in particular in relation to procurement practices." 

The parties say Patel has been stalling the process, thus frustrating the objectives of the B-BBEE Act. "This has the effect of thwarting the constitutional imperative of transformation," reads part of the affidavit. This "unreasonable delay" adversely affects black lawyers. "Contrary to his obligations, as part of a government whose role is that of transforming South African society, the minister has chosen, through his inaction, to frustrate transformation," said Brink.

In the affidavit, Brink said the B-BBEE Act was promulgated to give effect to Section 9 of the Constitution. This section of South Africa's supreme law is pivotal to the case as it provides for equality, which includes "the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination may be taken," said Brink. 

Failure by Patel to issue the Codes of Good Practice to promote the purposes of the law is unlawful, said Brink.

‘Disclaimer - The views expressed here are not necessarily those of the BEE CHAMBER’.


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