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Legal Sector Code an important instrument of transformative tool for the Legal Profession

27 July 2022

The Minister of Justice and Correctional Services, Ronald Lamola welcomes the Draft Legal Sector Code which was published for comment on 22 July 2022 in terms of Section 9(5) of the Broad Based Black Economic Act No. 53 of 2003. The Minister calls on interested parties to comment on the Draft Legal Sector Code.

The Draft Legal Sector Code (“Draft LSC”) aims to address inequities resulting from the systematic exclusion of black people from meaningful participation in the economy to access South Africa’s productive resources, economic development, employment creation and poverty eradication.

The objectives of the Draft LSC are to facilitate the transformation of the legal sector to ensure that it is representative of the demographics of South Africa, ensuring that a body of well-trained and competent providers of legal services are developed and also to enable equitable and representative appointments to be made to the judiciary.

The Draft LSC seeks to eliminate barriers of entry and provide equal opportunities by empowering Black practitioners - especially persons from designated categories- through ensuring equal participation in the economic opportunities within the legal sector; and also by implementing measures to address the provision and availability of pro bono services and community-based legal services, thus ensuring access to affordable legal services for all people in South Africa, particularly marginalized, poor and rural communities.

Consultation and development of the Sector Codes

The Legal Practice Council undertook extensive consultations with sector stakeholders, including the establishment of a steering committee with representation from across the legal fraternity and received approximately 140 submissions from legal practitioners and other interested parties, culminating in the development and adoption of a Draft Legal Sector Code in February 2021.

The LPC-established steering committee which consisted of representatives from a number of major commercial associations across the legal sector, including: the Black Lawyers Association; Pan African Bar Association of South Africa; National Association of Democratic Lawyers ; National Bar Council of South Africa ; General Council Bar of South Africa; Law Society of South Africa; Black Conveyancers Association; The Corporate Counsel Association of South Africa Advocates for Transformation; and the South African Woman Lawyers Association.

The Legal Sector Code sets out a new framework for determining B-BBEE compliance in the legal sector, which reflects the unique characteristics of the industry. As such, the Draft Legal Sector Code have deviated from the amended B-BBEE Codes of Good Practice on compliance targets and weighting points to address specific peculiarities in the sector and profession. In particular the draft codes have specified deviation in the following areas of interest:
1. thresholds for determining qualifying enterprises;
2. targets to be achieved under each element of the codes;
3. weighting of each element of the codes; and
4. targets pertaining to public organs of state in respect of the procurement of legal services.

The draft LSC proposes the establishment of a Charter Council, established by the Minister of Justice and Correctional Services after consultation with stakeholders in the legal profession, and consisting of stakeholders in the legal profession.

Deviations from the Generic Codes

The Draft LSC proposes a number of targets and weightings which differ from the generic codes. In addition, the Draft LSC established its own thresholds for the determination of qualifying and exempt entities in the sector.

In terms of overall structure, the Draft LSC includes the same five elements as are present in the generic codes, namely
(i) ownership;
(ii) management control;
(iii) skills development;
(iv) enterprise and supplier development; and
(v) socio-economic development; however the Draft LSC proposes different weightings and overall points tally when compared to the generic scorecards.

Minister Lamola said, these codes are an implementation of what President Mandela referred to as special measures that we envisage to overcome the legacy of past discrimination and are not intended to ensure the advancement of unqualified persons, but to see to it that those who have been denied access to qualifications in the past can become qualified now, and that those who have been qualified all along but overlooked because of past discrimination, are at last given their due”.

This policy is an important transformative tool rooted in the principles of justice and equity.

Interested parties (in both the public and private sector) are requested to forward their comments in writing within 60 days from the date of this publication, for the attention of Ms Lindiwe Mavundla or Ms Kumbe Mhlongo to the following address below: E-mail: legal@dtic.gov.za or c/o B-BBEE Unit 77 Meintjies street Sunnyside, Pretoria 0002 or the dtic Campus Private Bag X 84 Pretoria 0002

Issued by the Ministry of Justice and Correctional Services

Mr Chrispin Phiri
Spokesperson: Ministry of Justice and Correctional Services
081 781 2261