- Machini Motloung, president of NADEL, acknowledges that the decision is a setback for transformation. However, he also welcomes the court’s recognition that transformation is still necessary.
- He believes the legal profession must address who becomes an equity partner, who is involved in decision-making, and who receives substantial commercial briefs.
- Motloung insists that transformative measures should be developed through processes that meet the required legal standards.
The recent setting aside of the Legal Sector Code by the High Court in Pretoria is a setback for transformation in the legal profession, says Machini Motloung, president of the National Association of Democratic Lawyers (NADEL).
In an interview with Newzroom Afrika after the judgment, Motloung said NADEL was concerned about the outcome. However, he welcomed the fact that the court had not dismissed the need for transformation. The court reviewed and set aside Trade, Industry and Competition Minister Parks Tau’s decision to promulgate the Legal Sector Code, finding that he had not properly exercised his discretion.
The matter has now been sent back to Tau for reconsideration. The court did not declare the code’s transformation targets unconstitutional, nor did it rule that the main goals of the code were unlawful.
“What is quite pleasing is that the court has not rejected transformation. In fact, it expressly recognises the ongoing need for it,” said Motloung.
Transformation beyond numbers
Motloung said that transformation in the legal profession cannot be measured only by the number of black lawyers entering the field. He believes more focus should be on whether black lawyers are moving into positions of ownership and decision-making, as well as gaining access to substantial commercial legal work.
“We are seeing more black lawyers entering the profession, but we need to ask ourselves some critical questions: Who becomes equity partners? Who makes the decisions? Who receives substantial commercial briefs?” he said.
He said these concerns highlight the need for a sector-specific approach to transformation in the legal profession, rather than relying on a generic code. “There needs to be a move away from the generic code towards a more sector-specific code,” Motloung said.
Challenge to the Legal Sector Code
The Legal Sector Code was challenged by four major law firms, which argued that its provisions were unconstitutional and impractical. The code set targets including 50 percent black ownership within five years, 25 percent black representation in management, and targets for briefing black advocates.
Motloung said that NADEL had always supported a sector-specific approach and pointed to the significant consultation that took place during the development of the code. Legal organisations and the broader profession were engaged, and technical expertise was also sought.
He said the judgment still underscored the importance of making sure that legal requirements guiding the adoption of transformative measures are properly followed.
Process must withstand legal scrutiny
Motloung emphasised that greater attention must be paid to the details of the process when introducing transformative measures. “We have to pay close attention to the details of the process to ensure we meet the legal threshold,” he said.
He expressed concern that the Legal Sector Code had been in development for about six years, if not longer, only for the process to be sent back for reconsideration. Motloung said this setback should serve as a lesson about the need to ensure that transformative measures are developed thoroughly and in a timely manner, so that they can withstand legal scrutiny.
Motloung said the focus should remain on ownership, decision-making, and access to substantial commercial work, while making sure that any measures adopted to address these issues comply with the law.
Get your news on the go. Click here to follow the Conviction WhatsApp channel.
