What Happened
South Africa’s High Court has set aside a government framework designed to accelerate Black ownership and leadership within the country’s legal profession.
In a judgment delivered October 7, 2026, the Gauteng Division of the High Court in Pretoria invalidated the Minister of Trade, Industry and Competition’s decision to promulgate the Legal Sector Code under the Broad-Based Black Economic Empowerment Act.
The Code, introduced in September 2024, established sector-specific transformation measures, including targets for Black ownership, management, procurement, and the allocation of legal work.
Four prominent commercial law firms—Deneys, Bowmans, Webber Wentzel, and Werksmans—challenged the framework. The Solidarity trade union brought a separate challenge.
The Court concluded that the Minister had failed to independently evaluate whether the Code’s departures from existing empowerment rules were legally justified.
The ruling was procedural, not a rejection of racial transformation. The Court declined to decide whether the Code’s substantive provisions were constitutional or otherwise lawful. The matter has been returned to the Minister for reconsideration.
The Transformation Debate
More than three decades after apartheid, significant racial disparities remain within South Africa’s commercial legal profession.
According to Legal Practice Council figures reported by Reuters, Black lawyers represented approximately 59% of associates at the country’s six largest law firms in 2024, but only about 25% of partners.
The Legal Sector Code sought to address disparities in ownership and professional advancement. Among its measures were targets for large firms to achieve 50% Black ownership, including 25% ownership by Black women, within five years.
The challenging firms argued that aspects of the framework were impractical and could undermine existing transformation initiatives. They also questioned why requirements affecting a relatively small proportion of legal practices would adequately transform the profession.
Supporters viewed the Code as an important mechanism for addressing entrenched inequalities in ownership, leadership, and access to commercial legal opportunities. The Court did not resolve these competing substantive arguments.
Why It Matters
The decision creates uncertainty about the future of South Africa’s first sector-specific Black economic empowerment framework for the legal profession.
Although participation in empowerment scoring is formally voluntary, compliance can have substantial commercial consequences because government agencies and major clients consider empowerment credentials when awarding legal work.
The judgment therefore has implications extending beyond ownership percentages. It affects how law firms compete for instructions, how Black practitioners gain access to senior positions, and how economic opportunities are distributed across the profession.
For Black women lawyers, the stakes are particularly significant. The invalidated framework expressly sought to improve their participation in ownership and leadership.
The ruling also illustrates a broader constitutional tension: governments pursuing racial equality must exercise their regulatory powers lawfully, even when their policy objectives are constitutionally legitimate.
What Happens Next?
The Court returned the matter to the Minister for a fresh decision. It did not require the government to abandon the existing consultations or begin developing a new framework from scratch.
The Minister may reconsider the Code using the extensive material already assembled, provided he independently evaluates the statutory requirements and the justification for departing from the general empowerment rules.
Whether the government will reinstate the Code, revise its targets, or adopt a different approach remains unresolved. Meanwhile, the judgment leaves the underlying challenge of racial inequality within the legal profession substantially unchanged.
LexNoir Perspective
South Africa’s ruling should not be mistaken for a judicial rejection of affirmative action or Black economic empowerment.
The Court recognized both the continuing need for transformation and the constitutional obligation to exercise public power lawfully.
But the litigation also exposes a deeper challenge: How can a legal profession achieve meaningful racial transformation when diversity among junior lawyers does not translate into comparable ownership and leadership?
Ownership targets alone cannot resolve unequal access to clients, professional networks, significant assignments, mentorship, or the financial resources necessary to acquire equity interests.
At the same time, transformation policies must be legally sound, transparent, and capable of producing measurable results.
The next phase should be judged not simply by whether the government successfully reinstates a sector code, but by whether the resulting framework expands meaningful economic participation for Black lawyers—particularly Black women—and creates sustainable pathways to leadership.
For South Africa, the issue is larger than one regulatory instrument. It concerns who owns, leads, and benefits from the institutions entrusted with administering and defending the rule of law.
Sources & Further Reading
- High Court judgment, October 7, 2026.
- Broad-Based Black Economic Empowerment Act 53 of 2003, section 9.
- Webber Wentzel statement on judgment.
- Moneyweb analysis, October 8, 2026.
Featured photograph: Dumisa Ntsebeza at Constitution Hill (2019). Photo: Bobbyshabangu / Wikimedia Commons, CC BY-SA 4.0. Unmodified.
