TSHEPO KOKA | Transformation and the defining test facing SA’s legal fraternity

South Africa’s legal profession is once again confronting a difficult question: does it genuinely support transformation, or only transformation that does not materially disrupt entrenched institutional power?

The ongoing challenge to the broad-based BEE legal sector code by Solidarity, together with several of the country’s largest law firms, including Bowmans, Webber Wentzel, Werksmans Attorneys and Norton Rose Fulbright, has reopened one of the most uncomfortable debates within the profession.

At issue is not simply whether the legal sector code is legally sound. The deeper issue is whether the legal profession remains willing to participate meaningfully in the transformation project envisaged by South Africa’s constitutional order.

This debate deserves more nuance than the polarised rhetoric that often surrounds it. It would be simplistic to portray large commercial firms as opponents of transformation itself. Equally, however, it would be intellectually dishonest to ignore the persistent structural inequalities that continue to define the legal profession nearly three decades into democracy.

The legal profession now faces a credibility problem. Transformation is consistently endorsed in principle yet repeatedly resisted when concrete implementation mechanisms emerge. That contradiction is becoming increasingly difficult to ignore.

The litigants opposing the legal sector code have raised arguments that deserve serious consideration. Firms such as Bowmans have publicly argued that the code is flawed, overly rigid, and insufficiently tailored to the realities of legal practice.

Their argument is that law firms differ fundamentally from industries such as mining or telecommunications. Partnership structures are not easily comparable to ordinary corporate ownership models. Equity partnership in law firms is linked to years of professional development, client generation, fiduciary obligations and complex governance arrangements. Unlike listed companies, law firms cannot simply transfer ownership through conventional shareholding mechanisms.

Formal legal exclusion may have ended in 1994, but institutional advantage did not disappear with it.

There is validity in some of these concerns.

Transformation frameworks must be lawful, rational and commercially sustainable. The legal profession is entitled to challenge regulatory measures it believes are constitutionally defective or practically unworkable. But acknowledging the legitimacy of legal scrutiny does not resolve the larger problem confronting the profession. Because even if one accepts the criticisms of the code, the underlying structural reality remains difficult to dispute.

A small number of large commercial firms continue to dominate high-value corporate and state legal work in South Africa. Access to these briefing streams determines profitability, institutional influence and long-term sustainability within the profession.

According to the Black Conveyancers Association, black practitioners, particularly black women, continue to face serious barriers in accessing meaningful commercial work and sustainable growth opportunities. The issue therefore extends beyond demographics. It concerns the economic architecture of the legal profession itself.

Who receives major briefs? Who develops relationships with large corporate clients? Who gains access to complex commercial litigation? Who accumulates institutional capital over time? These questions ultimately determine who becomes a partner, who acquires influence and who remains professionally marginalised.

The profession cannot honestly confront these realities without acknowledging the role of history. Large commercial firms did not develop in a neutral environment. Many benefited from apartheid-era economic structures that systematically excluded black practitioners from meaningful participation in corporate legal markets.

Formal legal exclusion may have ended in 1994, but institutional advantage did not disappear with it.

What makes this debate especially significant is the unique role the legal profession occupies in South Africa’s constitutional democracy. Lawyers are not ordinary market actors. They are custodians of constitutional values. The profession routinely invokes equality, dignity and transformation in litigation, public discourse and constitutional interpretation.

South Africa’s constitution explicitly recognises that substantive equality may require remedial measures designed to address historical disadvantage. Against this background, the legal profession faces an uncomfortable question: can it credibly champion transformative constitutionalism in principle while resisting redistributive intervention within its own institutional structures? This does not mean every transformation measure is beyond criticism. It does mean, however, that the profession must confront the tension between its constitutional rhetoric and its institutional conduct.

Supporters of the legal sector code often point to sectors such as mining, banking and telecommunications as examples of industries that accepted transformation frameworks despite initial resistance.

The comparison is not entirely misplaced.

The Mining Charter was fiercely contested by major mining companies. Litigation followed. Yet, over time, transformation became an accepted feature of the sector’s governance framework. Similarly, the financial sector code reshaped procurement and ownership structures within banking. Institutions such as Standard Bank and FirstRand adapted, even if imperfectly. Telecommunications firms, including MTN Group and Vodacom, similarly integrated empowerment frameworks into their business models.

None of these sectors transformed perfectly. But the principle that structural inequality required deliberate intervention eventually became broadly accepted. The legal profession appears different.

Transformation within law continues to be approached with a degree of exceptionalism, as though the profession’s unique characteristics render it unusually vulnerable to redistributive reform. Professional independence and merit undoubtedly matter. But these concerns cannot become permanent justifications for institutional inertia.

The strongest argument advanced by opponents of the legal sector code is not that transformation should not occur, but that the current framework is flawed. That distinction matters. But it raises another question: if the current model is defective, what meaningful alternative does the profession propose?

For nearly 30 years, transformation within the legal profession has proceeded at a pace many regard as deeply inadequate. Ownership patterns, access to premium commercial work and institutional influence remain heavily concentrated.

Increasingly, black practitioners themselves have spoken publicly about unequal work allocation, exclusion from client relationships, slower promotion pathways and institutional cultures resistant to genuine inclusion. The issue is therefore not merely one of statistics or quotas. It concerns whether the structures governing commercial legal practice continue to reproduce exclusion in less visible but equally powerful ways.

One of the clearest lessons from South Africa’s broader transformation experience is that voluntary reform rarely disrupts entrenched institutional power without external pressure.

Mining companies did not voluntarily restructure ownership at a meaningful scale. Banks did not independently adopt procurement targets without sector-wide frameworks. Telecommunications firms did not naturally evolve into inclusive ownership structures through market forces alone. Transformation occurred because political and regulatory pressure altered institutional incentives. The legal profession now faces the same institutional test.

The greatest risk facing the profession may not be the legal sector code itself, but a culture of endless incrementalism in which transformation is repeatedly acknowledged as necessary while meaningful structural change is continuously delayed. Over time, this creates institutional cynicism, particularly among younger black practitioners entering the profession.

The legal profession is correct to insist that transformation measures must be lawful and sustainable. But it cannot simultaneously acknowledge enduring structural inequality while resisting every mechanism designed to address it. At some point, the repeated invocation of complexity and gradualism begins to sound less like prudence and more like postponement.

South Africa’s legal profession does not face a choice between merit and transformation. Its challenge is to demonstrate that the two are not mutually exclusive.

That is the defining test now confronting the profession.

• Koka is a social commentator and researcher in the cultural industries