‘We know all of us are not equal’: Court hears arguments of B-BBEE transformation in legal sector
· Citizen
The broad-based black economic empowerment (B-BBEE) legal sector code case is fundamentally about survival for black professionals in the legal field, the Gauteng High Court in Pretoria heard on Thursday, 7 May 2026.
This was an argument presented by lawyers defending the implementation of B-BBEE within the legal sector.
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At the centre of the dispute are several legal bodies, including the General Council of the Bar of South Africa (GCBSA) and the Advocates for Transformation (AFT).
They are opposing an application brought by four major law firms – Deneys Reitz, Webber Wentzel, Werksmans, and Bowmans Gilfillan – who are challenging the regulations aimed at transforming the legal profession.
The code, published by Trade, Industry and Competition Minister Parks Tau in September 2024, mandates that law firms raise black ownership to 50% over a five-year period, with half of that stake to be held by black women.
However, the firms argue that the new requirements could undermine their competitiveness by negatively affecting their B-BBEE ratings, which are crucial for securing work from the government and large financial institutions.
B-BBEE legal sector code case continues
During the fourth day of the hearing, Advocate Norman Arendse, representing the GCBSA, told the court that transformation efforts by several legal practitioners dating back decades have made “no headway”.
“It’s been very frustrating and, at times, rewarding in a sense that we have seen some colleagues ascend to high positions on the bench and in other sectors of society, but even they will tell you that it’s not good enough,” he said.
Arendse emphasised that a “voluntary soft touch” approach to transformation had failed to produce meaningful results.
He argued that while entry into the legal profession for black practitioners has improved over the years, many struggle to sustain careers due to a lack of work opportunities.
He pointed out that advancement within the profession, particularly attaining senior counsel status – commonly known as “taking silk” – remains difficult.
“It’s almost like a catch-22 situation. If we don’t have meaningful transformation in the legal sector, we are not going to transform our judiciary and other sectors in our society.”
Arendse told the court that the key legal question was whether the code is capable of achieving the objectives set out in the B-BBEE Act.
“There can be no doubt that it does. There are certain legal hurdles prescribed in the Act that need to be overcome and need to be complied with, but once that is done, then these are all matters of policy.”
Watch the proceedings below:
He emphasised that while B-BBEE has improved access to the profession, deeper systemic issues remain.
“Some of us have experienced the resistance to transformation in the profession,” Arendse told the high court.
“It’s like all of us are equal under the law in this country because we have a thing called the rule of law, but we know all of us are not equal,” he added.
Court urged to focus on lived realities
Advocate Muzi Sikhakhane, representing the Black Conveyancers Association (BCA), drew a sharp distinction between advocates and judges, calling on the court to prioritise substance over technical interpretation.
“What distinguishes you from us is this: we want to win the case and maybe earn some fees.
“Judges sit above us, have bigger and better responsibility to pass judgment on the paradoxes and complexities of disputes between human beings, between structures, between classes, between races,” he said.
Sikhakhane urged the court in evaluating the case needed to look at substance over form.
He criticised the law firms over what he described as conditional support for transformation of the legal sector.
“People always say: ‘I’m not a racist but’ or ‘I’m not sexist but’. Usually, what comes after but negates the first sentence.”
Sikhakhane framed the case as a fight centred on “existence” and “living in dignity” for black legal practitioners.
“Marginalisation and exclusion, which are the subject of this case, lead to social death and mental disintegration – the same way physical starvation leads to death.
“And if you do not realise that the people in this court, most of them, are black, they are here because this case is an existential case for them,” the lawyer said.
He added: “For someone who is white, who has been privileged, it’s a case about mechanics. It’s like a man dealing with problems of a woman.
“Men usually deal with the issues of sexism with some causality because they are not the ones who bear the brunt.”