South African courts tackle Legal Sector Code and NHI Act
The country's courts are set to hear two major legal challenges this week, which includes the bid by major law firms to overturn the Legal Sector Code.
Image: File
The courts will be faced with two major legal battles this week - to have the Legal Sector Code (LSC) declared unconstitutional as well as the challenge to the National Health Insurance (NHI) Act.
The Gauteng High Court, Pretoria, will for the entire week hear arguments by some of the country’s largest law firms - Norton Rose Fulbright, Webber Wentzel, Werkmans and Bowmans to oppose the provisions of the broad-based black economic empowerment LSC.
The Legal Practice Council (LPC) has previously maintained that the LSC is vital in addressing the structural challenges faced by black practitioners, especially black women, as a result of historical inequalities.
The LSC, among others, requires firms to increase black ownership, control and briefing patterns.
Webber Wentzel said the form of the LSC did not take into account a number of comments and concerns about modifications that would be required to ensure that the LSC would be lawful, rational and capable of achieving meaningful and sustainable broad-based transformation.
It said as a result of its promulgation, the only avenue available by which they could ask for a modification of the LSC was to seek a judicial review.
Webber Wentzel and the other applicants therefore intervened in support of the review application initially brought by Norton Rose Fulbright (as it was then known).
Webber Wentzel pointed out that the effect of the relief sought is not to leave the profession without a transformation framework.
Rather, it is that the LSC be set aside in its current form, with the Generic Codes continuing to apply while a revised and workable Legal Sector Code is developed.
The law firm said while the LSC’s transformation objectives are laudable, they are concerned about its genesis and current formulation.
Some of the concerns include that the LSC applies to a very small portion of the legal profession, with approximately 95% of firms exempted as they fall below the compliance thresholds.
They will argue that a sector code that applies to approximately 5% of firms cannot plausibly achieve sector-wide, broad-based transformation.
Another concern is that the LSC does not recognise black non-lawyer professionals in the management control measurement, despite their significant role in leadership, operations and transformation within large firms.
The Black Lawyers Association (BLA) meanwhile said given the country’s demographics in which whites constitute 7.7% of the population, and probably 3.8% of which are economically active, the resistance of the four law firms is “mind-boggling”. This is especially so when weighed against constitutional imperatives set out in the Constitution.
The BLA added that the LSC provides minimum requirements for the "accommodation" of historically disadvantaged legal practitioners which “one expects to be embraced by these firms”.The BLA called on all its members to “continue fighting this racial discrimination in the briefing patterns and reject any attempt to block a democratic government from implementing progressive policies to empower the historically marginalised population”.
Justice minister Mmamoloko Kubayi also made it clear that her department will vigorously oppose the application, as transformation of the legal sector is vital. A full court - three judges - will hear the application which starts on Monday.
The Constitutional Court will meanwhile hear the NHI Act challenges over three days, starting on Tuesday.
Various health sector stakeholders will argue that the parliamentary public participation process was flawed, rendering the Act unconstitutional and invalid.
President Cyril Ramaphosa has agreed to delay the proclamation of key sections of the NHI Act until the Constitutional Court hands down its judgment.