The Gauteng High Court in Pretoria has set aside the Legal Sector Code of Good Practice after finding that the Minister of Trade, Industry and Competition failed to exercise his statutory discretion in accordance with the Constitution and the Broad-Based Black Economic Empowerment Act.
A full Bench of the court handed down judgment on Wednesday, ordering the minister to reconsider the promulgation of the Legal Sector Code, which was published in September 2024 under section 9(1) of the B-BBEE Act.
The judgment followed two separate applications brought by law firms Deneys Reitz, Bowman Gilfillan, Webber Wentzel and Werksmans, and by Solidarity Trade Union.
The applicants challenged the legality, constitutionality and validity of the minister’s decision to publish the Code.
The court dismissed an objection to Solidarity’s standing to bring the challenge, finding that the trade union had participated in the public consultation process and had raised concerns about the constitutional validity of the proposed Code.
The court found that Solidarity had established a sufficient interest to challenge the legality of the process and the resulting regulatory instrument.
The judgment also dealt with an objection concerning the non-joinder of the Legal Sector Charter Council.
The Minister had argued that the Charter Council had a direct interest in the matter because it was established to oversee and implement the Legal Sector Code.
The court ultimately found that the central issue before it was the lawfulness of the Minister’s decision to promulgate the Code and that the Charter Council had not made or participated in that decision.
In its judgment, the court acknowledged the importance of transformation in the legal profession, saying the evidence demonstrated that meaningful transformation remained necessary and urgent.
However, the court said the importance of those objectives could not override the constitutional requirements governing the exercise of public power.
“The Constitution requires that such power be exercised in accordance with the Rule of Law,” the court said.
The court consequently reviewed and set aside the Minister’s decision to promulgate the Legal Sector Code and remitted the matter to the minister for reconsideration.
The court also ordered the minister to pay the applicants’ legal costs in both applications, including the costs of two counsel where employed, on Scale C.
No costs order was made against the other respondents.
The judgment was handed down by Judges Janse van Nieuwenhuizen, Basson and Mokose.
The matter was heard on 8 May 2026, with the order made on 7 October 2026.
