Bowmans, Webber Wentzel, and Werksmans win legal victory in BEE battle

Trade union Solidarity and some of South Africa’s top law firms have won a legal victory, as the Pretoria High Court set aside new prescribed racial quotas introduced for the local legal sector.

The court reviewed and set aside Trade Minister Parks Tau’s decision to promulgate the Legal Sector Code of Good Practice under the Broad-Based Black Economic Empowerment (B-BBEE) Act.

Notably, the court emphasised that this ruling was based purely on Tau’s failure to exercise his statutory discretion lawfully, and expressed no view on the substantive merits or validity of the code itself.

On Wednesday, 7 October, Solidarity CEO Dirk Hermann described this ruling as “a huge victory over the government’s reckless racial policy”.

The case was heard on 8 May 2026, with major commercial law firms, including Deneys Reitz, Bowmans, Webber Wentzel, and Werksmans, along with Solidarity serving as the applicants.

The applicants brought two review applications challenging Tau’s decision, made on 20 September 2024, to promulgate the Legal Sector Code under section 9(1) of the B-BBEE Act.

The Legal Sector Code was set to impose rigid requirements and transformation targets on the legal profession.

This includes, among others, requirements relating to ownership, management control, skills development, and preferential procurement.

For example, the code would have imposed specific racial quotas on South African law firms with an annual turnover exceeding R5 million and advocates with a turnover above R3 million.

The codes would have required these groups to achieve up to 50% black ownership and 50% black representation in management within five years.

The applicants in this case sought an order reviewing and setting aside the minister’s decision and declaring the Legal Sector Code invalid, unconstitutional, and of no force or effect.

Therefore, the main issue before the court was whether Tau independently, lawfully, rationally, and constitutionally exercised his statutory discretion when promulgating the code.

The court found, based on Tau’s own affidavit, that he viewed his role as merely accepting and gazetting what the legal sector had agreed upon.

It said the record and affidavit failed to demonstrate how Tau evaluated the material before him or addressed the concerns raised by his predecessor, Minister Ebrahim Patel.

Instead, the judgment states, Tau improperly treated the substantive determinations as belonging exclusively to the legal sector.

Therefore, in making its ruling, the court expressed no view on the substantive merits or validity of the transformation targets in the Legal Sector Code itself.

Instead, the court emphasised that its ruling was based purely on the minister’s failure to exercise his statutory discretion lawfully.

Ultimately, the court reviewed and set aside Tau’s decision to promulgate the cod, and remitted the matter to the minister for reconsideration. Tau was also ordered to pay the applicants’ costs.