Authored By: Tswaranang Fikile Hope Moyo
University Of South Africa
In May 2026, four of South Africa’s top commercial law firms, Deneys Reitz, Webber Wentzel, Werkmans, and Bowmans, approached the High Court to challenge the Legal Sector Code requiring 50% black ownership in law firms. This exposed something deeper than just a legal dispute, but a struggle over power, access, and sense of belonging to the profession. It raises the critical question: Has the South African legal profession truly transformed, or do structural inequalities rooted in apartheid continue to shape access and opportunity?
The B-BBEE is designed to address the structural inequalities created by apartheid and this disputed code, gazette in 2024, mandates that law firms achieve a 50% ownership within five years (with 25% allocated to women).
Although South Africa has supreme laws promoting equality, truth is, the reality inside top law firms still favors a certain group of people. These firms operate in South Africa, benefits from its economy, and serves its people yet their structures and opportunities often do not reflect the Black majority of the country, and they are continuously disadvantaged to employment opportunities.
Legal Framework
The transformation of South Africa’s legal profession is grounded in section 9 (the right to equality) of the Constitution of the Republic of South Africa. Section 9(2) of the Constitution directly permits legislative and other measures designed to protect or advance disadvantaged persons by unfair discrimination. This demonstrates a commitment to substantive equality, which requires more than equal treatment and instead focuses on confronting historical disadvantages. Section 22 further acknowledges the right to freely choose a profession, but allows this right to be regulated by law, reflecting that state intervention in the legal profession is permissible.
The profession is most notably regulated by the Legal Practice Act 28 of 2014. It plays a central role in the aims to transformation that reflects the demographics of South Africa. In addition, the Broad-Based Black Economic Empowerment Act 53 of 2003 provides for the development of sector-specific transformation measures. The Legal Sector Code, introduced under this framework, has set targets for ownership, management, and skill development in law firms, within the black community.
The Employment Equity Act 55 of 1998 also requires employers to take measures that ensure fair representation in the workplace. All these laws demonstrate that transformation is not optional but is part of South Africa’s broader constitutional project to confront inequality.
The Legal Sector Code Challenge
The recent challenge to the Legal Sector Code by the four law firms has brought the issue of transformation back into focus. These firms argued that the Code imposes strict targets that may not align with how law firms work, particularly in relation to ownership, which often depends on experience, performance, and long-term development. They further contended that such requirements may interfere with the right to freely choose and practice a profession under section 22 of the Constitution.
On the other hand, the state maintained that the Code is necessary to address the ongoing effects of apartheid in the legal profession. It argued that without clear and implementable measures, transformation remains slow and ineffective. This is supported by the Constitutional decision in Minister of Finance v Van Heerden[1], the court confirmed that measures aimed at advancing previously disadvantaged groups are constitutionally valid if designed to achieve equality. Again, in Solidarity v Department of Correctional Services[2], the court recognized that affirmative action is an imperative tool in achieving equitable representation.
They demonstrate that transformational measures like the Legal Sector Code are consistent with the Constitution, if they are properly implemented and aimed at addressing real inequality.
Critical Analysis and Argument
The reality faced by black LLB graduates in South Africa reveals a huge gap between constitutional ideals and lived experience. Statistics have shown that thousands of law graduates, predominantly black, remain unemployed each year. South Africa is the second highest country with unemployment[3]. Estimations suggest that unemployment in South Africa exceeds 40% with black graduates disproportionately affected. The disparity is far more pronounced within the legal field. Most white graduates are more likely to secure articles at established firms.
Merit or market dynamics are not enough to explain the imbalance. It reflects deeper structural inequalities rooted in apartheid and white superiority. Historically, white universities and schools have continued to offer and receive better resources, networks, opportunities, and exposure to legal opportunities, and still do. Black universities and schools, however, receive limited resources, networks, opportunities and exposure.
One example that demonstrates this exclusion clearly is that many law firms, especially in commercial sectors, explicitly or implicitly require proficiency in Afrikaans. The requirement is framed as a necessity but really, it is an exclusion, and it excludes black graduates who were not ‘privileged’ enough to study the language. The language is associated with apartheid governance, and it is now a gate-keeping tool that constitutes indirect racial discrimination disguised as a neutral hiring criterion. So, who is the constitution really for?
Moreover, informal hiring practices within firms often reinforce racial exclusivity. Recruitment frequently occurs through internal referrals, alumni networks, social connections, and spaces where white candidates have remained excessively represented. This leads to a cycle where “white pushes their own”, perpetuating dominance within top-tier firms. While firms may formally preach to transformation policies, these are often undermined by entrenched cultural and institutional biases.
Gender further compounds this disparity. Black women face a dual burden of racial and gender discrimination. Despite their increasing enrollment in law faculties, they remain underrepresented in senior positions within firms and the judiciary. The pipeline to leadership is obstructed not only by access barriers but also workplace misogynistic cultures that marginalize and undervalue their contribution.
Therefore, the challenge to the Legal Practice Council rules must be critically viewed. While firms argue flexibility and efficiency, there is a real concern that regulatory oversight will entrench existing inequalities. The rules are imperfect but represent an attempt to standardize entry and create a more level playing field. Removing or undermining these rules poses the risk of a system where access is determined by privilege and not potential.
At the same time, it must be noted that regulation alone cannot resolve this imbalance in equality. It requires a broader commitment from law firms to actively dismantle exclusionary practices. This includes rethinking the hiring criteria, investing in black graduate mentorship programs, and eliminating barriers like language as a requirement because it lacks a genuine justification.
Ultimately, the current moment represents an opportunity. The legal profession stands at a crossroads. It can either resist change under the guise of autonomy or embrace transformation as a constitutional imperative. Ensuring equitable access for black graduates is not merely a policy of preference, but a legal and moral obligation rooted in the Constitution.
Conclusion
The article has demonstrated that, despite a progressive constitutional and legislative framework, meaningful access in the legal profession of South Africa remains unequal, shaped by history. The Legal Practice Act 28 of 2014 and section 9 of the Constitution of the Republic of South Africa, 1996, clearly advocates transformation and equality, yet structural barriers continue to disadvantage the black graduates.
In light of this, the central argument stands, without firm and enforceable regulatory intervention, the legal profession in South Africa risks producing patterns of exclusion rooted in apartheid. Transformation cannot remain aspirational, it must be actively implemented and protected.
REFERENCE(S):
Legislation
Constitution of the Republic of South Africa, 1996
Legal Practice Act 28 of 2014
Broad-Based Black Economic Empowerment Act 53 of 2003
Case Law
Minister of Finance v Van Heerden (CCT 63/03) ZACC 3 [2004]
Solidarity v Department of Correctional Services (CCT 78/15) [2016] ZACC 18
Reports
Statistics South Africa, Quarterly Labor Force Survey
[1]Minister of Finance and Other v Van Heerden (CCT 63/03) ZACC 3 [2004]
[2]Solidarity v Department of Correctional Services (CCT 78/15) [2016] ZACC 18
[3]Ward Williams (Unemployment Rates; The Highest and Lowest Worldwide) 24 April 2026, investopedia.com
