South Africa’s Gauteng High Court has set aside the government’s approval of a Black economic empowerment code for the legal profession, ruling that the responsible minister failed to independently assess and justify the measures before approving them.
The judgment, delivered on Wednesday, Oct. 7, 2026, concerned the Legal Sector Code, introduced in 2024 to address racial disparities in ownership, management and procurement within the country’s legal industry. The court referred the matter back to Trade, Industry and Competition Minister Parks Tau for reconsideration.
The code established sector specific targets for law firms, including a requirement for large firms to achieve 50 per cent Black ownership within five years, with Black women accounting for 25 per cent. It was designed to accelerate transformation in a profession where Black lawyers remain underrepresented in senior leadership, ownership and access to high value work.
The legal challenge was brought by four prominent commercial law firms: Deneys, formerly associated with Norton Rose Fulbright South Africa, Bowmans, Webber Wentzel and Werksmans. Trade union Solidarity also challenged the code.
The court found that Tau had relied on his department’s assessment rather than independently determining whether the proposed code and its departures from the general Black economic empowerment framework were justified under the law. The minister was required to exercise his own judgment before approving the measures.
The judgment did not determine whether the code’s individual provisions were unconstitutional or whether its racial transformation objectives were legally valid. Instead, it focused on the process through which the minister approved the framework.
The distinction means the ruling does not invalidate South Africa’s broader Black economic empowerment or affirmative action policies. It does, however, remove the legal sector code from operation pending reconsideration by the minister.
Solidarity Chief Executive Dirk Hermann welcomed the outcome, describing it as a victory against what he called the government’s reckless racial policy. The firms challenging the code had argued against its requirements, while supporters maintained that targeted measures were necessary to address persistent inequalities in the profession.
The decision represents a setback for the government’s efforts to establish a dedicated transformation framework for the legal industry. The code had been developed over several years before its approval and publication in 2024.
The minister’s reconsideration will be important in determining whether the code is revised, approved in its existing form through a legally compliant process, or replaced by a different framework. The court’s ruling leaves the substantive policy questions unresolved.
The case highlights the legal and administrative requirements governments must meet when introducing sector specific measures to address historical inequality. For South Africa’s legal profession, the challenge remains how to expand Black participation in ownership, leadership and major commercial work while ensuring that transformation policies are implemented in accordance with the law.
The outcome also underscores that judicial scrutiny of the process used to adopt a policy is distinct from a ruling on the policy’s broader objectives. The court has required the government to reconsider its decision without declaring racial transformation in the legal profession unlawful.
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