The Gauteng High Court in Pretoria has set aside Trade, Industry and Competition Minister Parks Tau’s decision to promulgate the Legal Sector Code of Good Practice, finding that he failed to properly exercise his statutory discretion.
In a judgment delivered on 7 October 2026, a full bench found that Tau had not independently considered the relevant material and representations before publishing the Code in September 2024.
The court’s ruling focused on the legality of the minister’s decision-making process and did not determine whether the substantive provisions of the Code were constitutional or lawful.
The case was brought by Deneys, Bowmans, Webber Wentzel and Werksmans, with a separate application brought by trade union Solidarity. The matters were heard together by Judges Nicolene van Nieuwenhuizen, Selemang Mokose and Annali Basson.
The Legal Sector Code was introduced under section 9(1) of the Broad-Based Black Economic Empowerment Act as a sector-specific framework for transformation in the legal profession. It includes requirements relating to ownership, management control, skills development and procurement, including targets for Black ownership and Black women ownership.
The commercial law firms challenged the Code on several grounds, including its scope and practical impact. They argued that more than 95% of legal practices would fall outside the Code because of its turnover thresholds, raising questions about its ability to drive transformation across the profession.
The court did not rule on these substantive challenges. Instead, it found that while consultation and technical advice could inform the minister’s decision, they could not replace his obligation to exercise his own statutory discretion.
The court found that Tau had effectively treated the outcome of the consultation process as determinative rather than independently evaluating the material before him.
The decision was therefore set aside and the matter remitted to the minister for reconsideration.
The ruling does not prevent government from introducing a Legal Sector Code in future. However, any new decision will have to be taken through a lawful process in which the minister properly exercises the discretion required by the B-BBEE Act.
The judgment leaves the wider debate over transformation in the legal profession unresolved.
