09/10/2026
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8 OCTOBER 2026 | SPECIAL REPORT | LEGAL SECTOR B-BBEE CODE
PRETORIA HIGH COURT SETS ASIDE LEGAL SECTOR B-BBEE CODE — MINISTER FAILED TO EXERCISE INDEPENDENT JUDGMENT
The Gauteng High Court in Pretoria, sitting as a full bench, has set aside the Legal Sector Broad-Based Black Economic Empowerment (B-BBEE) Code, ruling that Trade, Industry and Competition Minister Parks Tau failed to independently assess whether its departures from the generic B-BBEE codes were legally justified.
The judgment invalidates the sector-specific code introduced in September 2024, meaning affected law firms revert to assessment under the existing generic B-BBEE codes.
Importantly, the court did not determine whether the code's transformation targets were constitutional or reasonable. Its decision rested on the Minister's failure to comply with statutory requirements.
BACKGROUND: THE LEGAL SECTOR CODE
Gazetted on 20 September 2024, the code sought to accelerate transformation within South Africa's legal profession through increased black ownership, management representation, skills development and procurement.
Key requirements included:
▪️ Targets of 30–50% black legal practitioners serving as equity directors within five years.
▪️ Minimum requirements for ownership, skills development and supplier development.
▪️ A one-level B-BBEE status downgrade for firms failing to achieve prescribed minimum thresholds.
The code had been developed since 2020. Tau's predecessor, Ebrahim Patel, had reportedly raised concerns about its legal compliance before leaving office without approving it.
THE LEGAL CHALLENGE
Four major law firms — Deneys (formerly Norton Rose Fulbright South Africa), Bowmans, Webber Wentzel and Werksmans — challenged the code's legality.
Trade union Solidarity brought a separate application, which was heard alongside the firms' challenges.
The applicants argued that:
▪️ The Minister had failed to independently justify departures from the generic B-BBEE codes, as required by Section 9(1) of the B-BBEE Act.
▪️ The required national strategy had not been validly issued.
▪️ More than 95% of legal practices were exempted, potentially undermining the code's transformation objectives.
▪️ Certain ownership and management targets were impractical given the professional and partnership structures of law firms.
The minister's legal representatives maintained that the relevant strategy had been published and disputed whether any procedural shortcomings justified invalidating the code.
THE COURT'S FINDINGS
The full bench comprised Justices Nicolene Janse van Nieuwenhuizen, Selemang Mokose and Annali Basson.
The judges found compelling evidence that Tau misunderstood his statutory responsibility.
Rather than independently evaluating the proposed code and its departures from the generic framework, the minister appeared to regard his role as approving what the legal sector had already agreed upon.
The court found that his reliance on departmental advice did not demonstrate the independent assessment required by law.
The judgment also questioned whether Tau had adequately considered the concerns previously raised by his predecessor.
The central legal principle is clear: ministerial approval cannot replace the independent exercise of statutory discretion required by Parliament.
THE COURT'S ORDER
The full bench ordered that:
▪️ The minister's decision to promulgate the Legal Sector Code be reviewed and set aside.
▪️ The matter be returned to the minister for reconsideration.
▪️ Tau pay the applicants' legal costs.
▪️ The sector-specific code cease to operate following its invalidation, leaving the generic B-BBEE codes applicable.
REACTIONS TO THE JUDGMENT
Deneys welcomed the ruling but expressed disappointment that the court had not determined the broader constitutional questions. The firm indicated its support for a lawful transformation framework.
Solidarity CEO Dirk Hermann described the judgment as a major victory against the government's race-based policies.
Legal sector bodies supporting the code maintained that targeted transformation measures remain necessary to address historical exclusion and persistent structural inequalities within the profession.
WHAT HAPPENS NEXT?
Several important questions remain unresolved.
▪️ Constitutionality: The court made no finding on whether the code's racial ownership and transformation requirements comply with the Constitution.
▪️ Government response: Whether the minister will appeal remains uncertain.
▪️ Reconsideration: The minister may reconsider the code, provided he properly exercises the statutory discretion required by the B-BBEE Act.
▪️ Wider implications: The judgment reinforces the legal obligations ministers must satisfy when introducing sector-specific empowerment codes, potentially affecting future regulatory decisions in other professional sectors.
CLOSING PERSPECTIVE
The Pretoria High Court's ruling is not a rejection of transformation itself. It is a finding that government must comply with the law when introducing measures intended to achieve it.
The judgment highlights a fundamental principle of administrative justice: ministers must exercise their powers independently, consider relevant evidence and ensure their decisions meet statutory requirements.
Transformation objectives do not remove the obligation to follow due process. Government policy, however important its stated purpose, remains subject to the rule of law.
EDITORIAL NOTE: This version is based on our draft. The judgment, quotations and current appeal status have not been independently verified. Expect the update in comments to this post once verification has been confirmed.
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Date of Publication: 08 October 2026.
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