“The Pretoria High Court has set aside Trade, Industry and Competition Minister Parks Tau’s decision to promulgate South Africa’s Legal Sector Code of Good Practice, finding that he failed to exercise the independent statutory judgment required before publishing the policy. However, the court did not rule on whether the transformation targets contained in the code are constitutional or legally valid, instead sending the matter back to the minister for reconsideration.”
South Africa’s debate over transformation, economic empowerment and government policy entered a significant new phase on Thursday, 8 October 2026, after the Pretoria High Court set aside Trade, Industry and Competition Minister Parks Tau’s decision to promulgate the Legal Sector Code of Good Practice under the Broad-Based Black Economic Empowerment (B-BBEE) Act.
The judgment concerns an important policy framework affecting South Africa’s legal profession. However, the court’s decision should be understood carefully because it did not declare the substantive transformation provisions in the Legal Sector Code unconstitutional or unlawful. Instead, the three-judge bench focused on the process followed by the minister when he decided to publish the code in September 2024.
The court found that Tau had not demonstrated that he independently exercised the statutory discretion required of him. According to the judgment, the minister’s own account indicated that he largely accepted and published an agreement reached within the legal sector rather than independently evaluating whether the code, including its departures from the general B-BBEE framework, was justified.
As a result, the court reviewed and set aside the minister’s decision and referred the matter back to his office for reconsideration. The applicants were also awarded costs.
The case involved four major law firms — Deneys, Bowmans, Webber Wentzel and Werksmans — as well as trade union Solidarity. They challenged the legal-sector transformation framework and questioned the manner in which the code had been introduced. The case therefore placed questions about transformation policy, ministerial discretion and administrative decision-making directly before the court.
The Legal Sector Code was designed to advance transformation within South Africa’s legal profession. Its objectives include increasing black ownership and participation in law firms, strengthening opportunities for black legal practitioners and directing more legal work towards black-owned firms and professionals.
The policy formed part of the government’s broader B-BBEE framework, which seeks to address economic inequalities created by South Africa’s history of racial discrimination and exclusion. The legal profession has been one of several sectors where government and professional organisations have sought sector-specific measures intended to increase participation by historically disadvantaged South Africans.
The court ruling does not mean that those transformation objectives have been rejected. Instead, the judgment leaves the substantive policy questions open.
That distinction is important because the applicants had raised several substantive objections to the code. Among their concerns was the argument that the framework did not adequately recognise transformation measures already undertaken by some firms, including bursaries, skills-development programmes and socioeconomic-development initiatives.
Another issue concerned the reach of the policy. According to information presented in the litigation, legal entities with one to three partners represent more than 95% of legal practices, while the code’s requirements were focused on firms meeting particular turnover thresholds. The applicants argued that this raised questions about how effectively the framework could transform the profession as a whole.
The court, however, did not decide whether those arguments were correct.
Instead, the judges concentrated on the minister’s decision-making process. The judgment indicated that Tau was entitled to receive advice and consider agreements reached within the sector, but he was still required to make his own assessment before exercising the statutory power to promulgate the code.
This distinction between policy objectives and lawful policy-making procedures is central to understanding Thursday’s ruling.
Government ministers frequently rely on officials, experts, stakeholders and industry representatives when developing regulations and policy instruments. However, where legislation gives a minister a particular statutory power, the minister must exercise that power according to the requirements of the law. The court’s judgment indicates that consultation or agreement among stakeholders cannot replace the minister’s own legal responsibility to evaluate the relevant information.
The ruling therefore sends the Legal Sector Code back into the policy process.
If the minister decides to promulgate the code again, the government will have to reconsider the framework in light of the judgment. The court expressly stated that it was not deciding the merits of the substantive challenges. Those questions could therefore return to court if a new decision produces further litigation.
The dispute also illustrates the wider political sensitivity surrounding B-BBEE policy in South Africa.
Supporters of sector-specific transformation measures have argued that formal economic and ownership structures continue to reflect historical inequalities and that government policy is necessary to widen access to professional opportunities. During the original litigation, organisations representing black legal professionals and other transformation bodies defended the Legal Sector Code as a mechanism for expanding access to high-value legal work and professional advancement.
The applicants, meanwhile, challenged aspects of the policy and the legality of the process through which it was introduced. Earlier coverage of the court proceedings showed that the dispute involved competing arguments about transformation, procurement, ownership, representation and the rule of law.
The policy dispute is therefore broader than the interests of a handful of large law firms.
Legal-sector transformation can affect government procurement, corporate legal services, professional development, ownership structures and opportunities for younger lawyers entering the profession. Because government departments and public entities purchase legal services, changes to the rules governing legal-sector empowerment can also influence how public-sector legal work is allocated.
At the same time, the judgment highlights the importance of administrative accountability when government introduces economic policy.
The court’s decision means that the immediate legal question is not whether South Africa should pursue transformation in the legal profession. Rather, the immediate question is how that transformation framework must be developed and approved so that the responsible minister properly exercises the powers provided by legislation.
This could have implications for the government’s broader approach to sector-specific empowerment policies. While the judgment deals specifically with the Legal Sector Code, it reinforces the principle that statutory decision-makers must independently apply their minds to the decisions they are legally empowered to make.
For the legal profession, the next stage will therefore depend on what the minister does following the court’s order.
The minister could reconsider the existing framework, review the evidence and submissions that informed the original decision, and determine whether amendments are necessary before making a fresh decision. Stakeholders across the profession could also continue making arguments about the appropriate design of transformation requirements.
The court’s ruling does not provide a final answer to those policy disagreements.
Instead, it creates a new stage in the debate. The government remains able to pursue transformation objectives, while any new decision must comply with the legal requirements identified by the court.
The case also demonstrates how South Africa’s constitutional and administrative-law framework interacts with political policymaking. Ministers have significant authority to develop and implement policy, but that authority is exercised within legislation and subject to judicial review.
For the public, this means that government policy is not simply a matter of political preference. Where a minister is exercising statutory powers, the decision-making process must meet legal standards.
As the Legal Sector Code returns to the minister for reconsideration, the future of the framework remains open. The substantive questions surrounding transformation, ownership, representation and access to legal work have not been finally resolved by Thursday’s judgment.
What has been established is that the previous decision to promulgate the code cannot stand in its existing form because the minister did not demonstrate the independent exercise of statutory discretion required by law.
The next decision will therefore be closely watched by legal practitioners, professional organisations, transformation advocates, businesses and government institutions. It will help determine how South Africa balances its transformation objectives with the procedural and legal requirements governing public policy.
For now, the Pretoria High Court ruling marks an important development in the continuing national discussion about B-BBEE, transformation and the relationship between political policymaking and the rule of law.
