The application by trade union Solidarity and several major South African legal firms to have the broad-based black economic empowerment (B-BBEE) code for the legal sector set aside succeeded in the Pretoria High Court on Wednesday.

The decision has been acclaimed by Solidarity as “a huge victory over the government’s reckless racial policy”.

This is an overreaction. The decision is indeed a victory, but it is far from huge. The case was decided on purely procedural grounds and leaves the larger edifice of the South African state’s race-based interference in private business unscathed.

The legal sector code was promulgated by trade and industry minister Parks Tau, under section 9(1) of the B-BBEE Act, in September 2024. It sought to impose rigid requirements, in terms of ownership, management control, skills development, and preferential procurement, on larger private legal firms. Law firms with an annual turnover exceeding R5 million were required to achieve up to 50% black ownership (including 25% black women’s ownership) and 50% black representation in management within five years. Smaller legal practitioners were exempted.

The code was immediately opposed from two quarters.

In an application to the Pretoria High Court, Solidarity argued that the code’s mandatory targets put race above merit, undermined the independence of the legal profession, and violated equality before the law. The union argued that “the sectoral (B-BBEE) codes are unlawful, irrational, and unconstitutional” and that the prescribed targets amounted to rigid racial quotas. It added that racial targets not only undermine the independence of the legal profession but also place an unrealistic administrative and financial burden on legal practitioners.

An application was also brought by four prominent South African legal firms: Deneys, Bowman Gilfillan, Webber Wentzel, and Werksmans (referred to in the court papers as “the Deneys application”). These are all “large” firms as defined in the codes, with more than 100 partners each. Their joint application argued that the codes were “unlawful, unworkable, and risk undermining, rather than advancing, meaningful broad-based transformation in the legal profession, harming the very people it is supposed to benefit”.

The law firms did not oppose racial “transformation” in principle. Indeed, they made it clear that they support “meaningful, inclusive, and sustainable transformation of the legal profession, both within their own firms and across the wider legal sector”. They objected to the code removing “several proven transformation mechanisms”, including bursaries for black students, skills development for employees and learners with disabilities, socio-economic development contributions, and pro-bono work for organisations serving “vulnerable communities”, such as the Black Sash.

The High Court decided the applications should be heard together as they raise the same substantial issues. The applications were opposed by a range of respondents including the Legal Practice Council (which had played a major role in drawing up the legal sector code), the Black Lawyers Association and the General Council of the Bar of South Africa. Much of the evidence focussed on Solidarity’s legal standing (locus standi) and thus whether it had the right to bring the case to court in the first place. The court ruled that it did.

The outcome was a ruling by the full bench of the Pretoria High Court, which declared the Legal Sector Code invalid and set it aside, ordering the minister to pay Solidarity’s legal costs. The court stated that its ruling was based only on Minister Tau’s failure to exercise his statutory discretion lawfully. He had ignored the inputs provided during the public consultation process held under his predecessor, Ebrahim Patel, and had relied on a briefing compiled by his officials rather than applying his own mind.

The court did not rule on whether the B-BBEE targets themselves were constitutional.