NADEL SUPPORTS JUDGE MANDLENKOSI MOTHA IN QUESTIONING THE RACIAL MAKEUP OF THE LEGAL TEAM IN THE MATTER OF PERIFORM WORK SCAFFOLDING ENGINEERING (PTY) LTD v COMMISSIONER OF BROAD BASED BLACK ECONOMIC EMPOWERMENT COMMISSION & BROAD BASED BLACK ECONOMIC EMPOWERMENT COMMISSION

28 February 2024

The National Association of Democratic Lawyers (NADEL) stands firmly in support of Judge Motha’s decision to question the racial makeup of the counsels involved in Periform in light of the fact that the legal profession remains highly untransformed. Transformation of the legal profession, particularly with regard to briefing patterns, has always been a contentious and controversial issue in the South Africa legal profession.

NADEL recognises that a judge is entitled, if not obligated, to question the lack of black counsel in our courts and that the State and judiciary play a pivotal role in advancing transformation, otherwise transformation will remain stagnant and sluggish.

NADEL commends this action by Judge Motha as it underscores a judicial commitment to transformation and is a step in the right direction to raise the awareness of the constant indignity of racial discrimination in the legal profession.

Mvuzo Notyesi, the President of NADEL said that “South Africa has always aimed to address inequities resulting from the systematic exclusion of black people from meaningful participation in the economy to access South Africa’s productive resources, economic development, employment creation and poverty eradication. Transformation remains a serious concern in South Africa, and within the legal fraternity and past and present discriminatory practices that are experienced by black legal practitioners when it comes to distribution of work and briefing has been top of NADEL’s agenda.”

NADEL is encouraged that Judge Motha’s challenge is not only for the legal team before him, but it is a challenge to the South African government and its departments, private sector, Legal Practice Council, Bar Associations, Voluntary Associations and legal practitioners at large to ensure that South Africa places the skewed briefing patterns back on the national agenda, so that we can collectively tackle obstacles hindering progress to include black legal practitioners in the South African economy and ultimately work together in championing meaningful transformation in the legal profession.

NADEL has participated at various levels towards the Draft Legal Sector Code, which has, as its sole objective, facilitating the transformation of the legal sector to ensure that it is representative of the demographics of South Africa and to ensure that a body of well-trained and competent providers of legal services are developed. The Draft Legal Sector Code is aimed to set out a new framework for determining B-BBEE compliance in the legal sector, which reflects the unique characteristics of the legal industry.

Mr Notyesi further stated that “in keeping with the aims and objectives of the Draft Legal Sector Code and considering the participants thereto, it is an indictment on the B-BBEE Commission that in 2024, the Commission briefs an all-white legal team. Consequently, it is important for the promotion and advancement of transformation to call the B-BBEE Commission to account.”

NADEL remains committed to advocating for transformation within the legal profession.

Statement issued on behalf of the National Association of Democratic Lawyers (NADEL), South Africa by Adv Lizelle Haskins, NADEL Publicity Secretary, 28 February 2024