20-06-2025
Kubayi calls for law firms to withdraw their challenge against the Legal Sector Code
Justice and Constitutional Development Minister Mmamoloko Kubayi says it is an embarrassment that 30 years into democracy, there is still talk about transformation in the legal profession to benefit the previously disadvantaged.
Image: Jairus Mmutle / GCIS
Justice and Constitutional Development Minister Mmamoloko Kubayi has urged major law firms to reconsider their legal challenge against the Legal Sector Code aimed at transforming the legal profession.
Responding to oral questions in the National Council of Provinces, Kubayi expressed her disappointment over the ongoing court challenge by Norton Rose Fulbright, AfriForum, and others.
'I raise the issue that if the companies that have taken us to court, such as Norton Rose Fulbright and others, could pull out of court because, to be honest with you, what we have here is an embarrassment 30 years down the line we are still talking about making sure that we can be able to bring those who were previously disadvantaged to the fore to participate,' she said.
Kubayi commented when she was asked whether any government-wide capacity and systems exist to monitor briefing patterns of attorneys or advocates by the state organs on litigations against the State.
In her response, she said her department does not have the government-wide capacity and systems to monitor the briefing and outsourcing of legal work patterns.
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'The department monitors the outsourcing and briefing patterns of cases outsourced to private practitioners through the Office of the State Attorneys (OSA) on behalf of the national and provincial spheres of government.'
Kubayi stated that municipalities and state-owned enterprises have their own systems of outsourcing legal work.
'The State Attorney Act, as amended, is silent on whether municipalities and state-owned enterprises are supposed to consume legal services from OSA or not.'
Kubayi explained that former Justice and Constitutional Development minister Ronald Lamola and the Legal Practice Council initiated in 2020 the process for the development of a transformation sector code.
The process was guided by the Broad-based Black Economic Empowerment Act, and it culminated in the adoption of the proposed Legal Sector Code in February 2021.
The Legal Sector Code is aimed at transforming the briefing patterns in favour of the previously disadvantaged legal practitioners, and was gazetted on September 20, 2024.
Kubayi said the Legal Sector Code was currently being legally challenged through the courts by the big law firms led by Norton Rose Fulbright.
She further said the Legal Sector Code provided for the establishment of the Legal Sector Code Charter Council (LSCCC) by the Ministry to monitor outsourcing targets for private and public institutions to improve participation of historically disadvantaged practitioners and law firms in the legal sector.
'The briefing patterns for the public and private sectors will be monitored by the LSCCC with the assistance of the Solicitor General's office.'
Kubayi also said it was important to be transparent in the manner they did the briefing patterns but also be accountable because some of the issues touched on corruption where people would want to charge more for services but did not deliver.
'When I met with the law Society of South African and black professionals in the sector, the issue was raised that we have got to be able to hold each other accountable.'
She noted that she got lashed out by ministers complaining that OSA allocated a particular advocate who could not argue their case, and as a result, lost the court case.
'I will do a preparatory meeting or engagement with my colleagues in national government, but another issue is to do a roadshow to provincial executives, sit with them and make them understand why sometimes we have a lot of money that we are spending on litigation when we are not supposed to. That is one of the areas that we need to be working on, and we'll continue to improve on it.'
Kubayi also said one of her tasks was to ensure that black advocates were not only briefed by the state, but were paid on time.
'I still get a lot of people saying, I've done work, 30 days have passed, 60 days have passed, I've not been paid. That's one of the critical areas that is important, because if we do not pay them on time, they will not be able to sustain themselves.'
