Trade and Industry Minister Ebrahim Patel has been hauled to the Gauteng High Court, Pretoria, over his failure to gazette the B-BBEE Legal Sector Code (LSC) since 2021.
Also cited as respondents in the application by the National Association of Democratic Lawyers (Nadel), the Black Conveyancers Association (BCA), the Pan African Bar Association of SA, and the Black Lawyers Association, are Correctional Services Minister Ronald Lamola, the Solicitor-General and the Legal Practice Council.
Their action comes after Pretoria High Court Judge Mandlenkosi Motha last week demanded that an all-white group of lawyers explain why there was not a single black lawyer among them in a case before him.
The matter before Judge Motha involved Periform Work Scaffolding Engineering, which was contesting a finding of the Broad-Based Black Economic Empowerment Commission, and concerns a dispute dealing with black empowerment scorecards.
Advocate Johan Brand and advocate Anna Granova were appointed as counsel to appear on behalf of the commission while advocate Arnie Subel and advocate Johnny Klopper appeared for Periform.
The application by the four black legal organisations also comes after Nadel this week said it was an indictment on the B-BBEE Commission that in 2024 the commission briefed an all-white legal team.
In their notice of motion, the four organisations want the court to make an order that Patel’s failure to gazette the LSC be declared unlawful.
They also want the court to direct Patel to gazette the code within 15 days of the court order and that respondents opposing the application be ordered to pay costs.
In a statement, the four legal organisations said Patel has consistently frustrated the process of finalising the LSC since 2021.
They said the code was submitted for gazetting to Lamola, who approved it and forwarded it to Patel in October 2023.
“The minister is obliged to gazette the legal sector code as all prescribed processes have been complied with. He has, however, ignored all correspondence from the organisations enquiring when he would gazette the legal sector code,” the organisations said in a statement.
Patel’s failure to gazette the legal sector code was both unreasonable and unlawful, they maintained.
“Whether this failure is due to negligence or opposition to transformation by him, the effect is the same – namely that black practitioners continue to suffer and remain deprived of a sustainable flow of quality legal work.
“That he serves in a portfolio whose core function is to promote B-BBEE is even more shameful.
“If he is opposed to B-BBEE, he should do the honourable thing and resign from this ministry. The organisations will not stand by and allow him to frustrate the efforts by black legal practitioners to seek equality.”
In his founding affidavit filed, Raphael Grant Brink of the BCA said Patel has been stalling to gazette the LSC as required in terms of section 9 of the B-BBEE Act.
“This has the effect of thwarting the constitutional imperative of transformation,” he said.
“The applicants as organisations who were set up to advance transformation in the legal profession, view the promulgation of the LSC as an important instrument to give effect, in a material manner, to transformation – especially in relation to changing discriminatory patterns of procurement that were inherited from apartheid and remain a serious problem,” Brink said.
He also said the unreasonable delay by Patel to promulgate the LSC adversely affects black legal practitioners.
“Contrary to his obligations, as part of a government whose role is that of transforming South African society, the minister has chosen through inaction, to frustrate transformation.
“In doing so, he is failing in his constitutional duties in this regard.
His failure to act constitutes an unlawful action.”
Brink also said the LSC gave effect to section 9(2) of the Constitution as it promoted the achievement of equality in that it implemented measures that actively advance persons or categories of persons who are disadvantaged by unfair discrimination.
“It is a legislative measure designed to protect persons or categories of persons who were disadvantaged by unfair discrimination, hence the need for its urgent gazetting.”
He noted that the Legal Practice Council embarked on engaging stakeholders to advance transformation of the process through facilitating the drafting and development of the LSC in February 2020. The Legal Practice Council adopted the draft LSC and submitted it to the Department of Trade and Industry in April 2021 through the Department of Justice and Constitutional Development.
“After submission to the department on August 18, 2021, nothing further was heard.”
Patel received a final draft of the LSC supported by Lamola in October 2023, but nothing was heard for him other than a few queries. After the applicants subsequently wrote letters and received acknowledgements, they threatened legal action.
“It is approximately two and half years since the draft LSC was first submitted. It appears the minister has no interest in performing duties in terms of the B-BBEE Act and Statement 003. His inaction effectively enables the continued discrimination against and prejudice to members of the applicants and black practitioners in general.
“Given that the minister has ignored applicants’ appeals, the applicants are now left with no alternative but to approach the court for an order compelling the minister to do what the statute requires.”
The department was contacted for comment and spokesperson Bongani Lukhele said he would send the request to Patel’s office.
No comment was received by deadline.
Cape Times