Thabo Masombuka
Albeit gazetting of the Legal Sector Code represents a significant milestone towards the attainment of a transformed, united, and restructured legal services profession that is characterised by the availability of equal access to work opportunities.
For years, black practitioners and black women practitioners, in particular, have been at the receiving end of skewed and inadequate economic opportunities in the legal sector.
This is often perpetuated by the economy that is unwilling to transform and a state law advisory department that is unwilling to advance transformation.
Thirty years into democracy, it therefore became necessary and imperative that the legal sector had to turn the corner and transform to deal with the structural, racially skewed conditions of practice that are faced and encountered by largely black and rural practitioners, especially those that are black women and without adequate capital to start up practices.
A transformed profession must be able to enhance democratic systems that focus on equality, which should undoubtedly advance the legal fraternity that serves all South Africans, irrespective of race and gender.
The current legal sector status quo perpetuates inadequate access to a flow of quality work from the private sector; discrimination by the private sector in terms of procurement of specialised work; inconsistent briefing patterns from organs of state and SOEs; unequal access to senior positions in racially mixed law firms, in particular in large LSMEs.
The end result is that there is limited access to quality work on complex specialised areas by black practitioners.
If this status quo was to be left unchallenged, then the imbalances that prevail in the profession would further condemn current and future legal practitioners into economic inactivity.
It is against this compelling background that the Legal Sector Code (LSC) was gazetted by Minister (of Trade, Industry and Competition) Parks Tau on September 20.
This historic milestone not only lays the basis and foundation for the transformation of the legal fraternity as a whole, but becomes important in facilitating access to justice by many poor communities who require legal services.
In this context, the LSC will facilitate redress in aspects of the profession that require specific measurements and interventions such as management control, procurement, and skill development.
More importantly, it also provides specific guidelines for industry stakeholders on how they can meet the requirements of the code. Unlike the generic codes, the LSC will introduce targets and weighting points that seek to address the inequalities posed by racial subcategories involved in the sector.
Furthermore, the targets will assist in ensuring that black women are equitably represented in the management and ownership structures of legal practices that are affected by the LSC.
Young graduates should aspire to contribute positively to the growing legal sector instead of being swamped by the imbalances and lack of transformation which negatively impact their development.
The Legal Sector Code is established in terms of section 9 (1) of the B-BBEE Act 53 of 2003. Therefore, it becomes binding for verification purposes instead of the generic scorecard.
It is binding on all legal practitioners, attorneys and advocates who choose to be measured for B-BBEE.
It will be compulsory for the government, including state-owned entities (SOEs) and legal practitioners procuring legal services on behalf of the state, to comply with the LSC.
In making sure that the legal fraternity is rooted and guided by the Legal Sector Code, the first important step is to ensure black-owned businesses do benefit from the implementation of the code.
For instance, attorneys’ firms with a turnover of less than R5 million and advocates with turnover of less than R3m will not be obliged to meet the requirements of the code. In terms of ownership scorecard, for large firms, in the first-year ownership must be 30% black owned with women being 15%.
Over a five-year period, ownership must increase to 50% with women increasing to 25%.
Management control, in the first year, for large law firms, 30% in the first year up to 50% with women being 15% and moving up to 25% in the fifth year.
Large law firms will be enabled to brief black advocates, with the first-year allocation of 40% of spend for black advocates. For the State organs, the code requires that for the first year, a minimum spend of 70% for legal work must be allocated to black advocates and attorneys, this must increase to 80% in year 5.
The spend must include an allocation of 40% for women and up to 50%.
What is more important and unique about the LSC is the establishment of the Legal Sector Transformation Fund (LSTF) – the LSTF will be set up and legal practitioners will contribute to the fund and receive points based on respective contributions.
The fund will provide financial assistance and support to black legal practitioners, especially black women and other black people from designated groups.
Through a grant system, the fund will also provide financial assistance, training and support to black junior advocates, including subsidising their rental and/or membership fees of voluntary associations or subscription fees.
The fund will also be utilised for skills development and enterprise and supplier development initiatives including funding of black-owned LSMEs, especially new entrants, including the provision of technical equipment, library facilities, office rental and training in specialised areas of law; Providing financial assistance and support to black candidate legal practitioners during their pupillage, including the giving of stipends – this will include women who are on maternity.
In a country previously defined by racism and apartheid, transformation is not only an imperative, but the right thing to do, for the country both economically and as a constitutional imperative.
◆The Legal Practice Council is responsible for ensuring that the profession is ethical, united, and transformed.
Masombuka is a construction and engineering lawyer who was the technical adviser in the drafting of the Legal Sector Code
Cape Times