There's a lot you can learn from that Norton Rose affidavit. I've been chatting to a few journalists about this which lead me to re-read the affidavit. The challenge to the dti and the DoJ et al is to show the following (this is taken from Statement 003)
3.1.5 the proposed Sector Code may deviate from Targets and Weightings used in the Codes only where those deviations are justifiable based on sound economic principles, sectorial characteristics or empirical research;
3.1.6 a sector code developed in terms of this statement must set targets which are over and above the minimum targets set out in the Generic Codes of Good Practice.
3.1.7 the proposed Sector Code may deviate from the thresholds set out in the Generic Codes of Good Practice, only where those deviations are justifiable based on sound economic principles, sectorial characteristics or empirical research;
My reading of the underlined sentences is that you need to show sound economic principles were considered as well as either sectoral characteristics or empirical research. Norton Rose have gone to great lengths to show that none of this was considered. Of course no other code has been challenged before. But if they are then the dtic has to prove this. I am convinced that none of this was a consideration for any of them. And – those codes that don't deviate from the targets are automatically null and void.
There are articles out there from supporters of the Legal Code, as is their right, that appear to only have one argument.
A Concerning Position on Transformation
NRF’s application reveals a troubling resistance to genuine transformation. By labeling the Legal Sector Code as “unrealistic” despite the availability of qualified black professionals, NRF appears to prioritise its status quo over meaningful change. This stance undermines the principles of equity and empowerment that South Africa’s democracy was built upon. It also raises doubts about the firm’s commitment to fostering diversity and uplifting historically disadvantaged groups.
Implications for Transformation in the Legal Sector
NRF’s stance against the Legal Sector Code not only resists transformation but risks encouraging similar attitudes in the industry. Transformation policies are crucial for addressing racial imbalances in legal representation and opportunities. Courts must take a firm stance to discourage such challenges, ensuring that empowerment policies are implemented effectively and fairly.
From what I can gather, Dee-Dee Mathelela, the author of this article is a fine lawyer. Why is she then arguing on the basis of transformation and not on the basis of law. Is she saying, as the dti no doubt will, in their response that Norton Rose's level one status which they have achieved since July 2022 (and in the last 15 years they haven't fallen below a 4) is not a commitment to transformation. The evidence is there, prove they aren't.
This was the same argument one jimmy manyi leveled at Nedbank years ago because Reuel Khoza questioned the quality of ANC leadership at the time. This is what he said
This brings into question the substance of the extraordinarily high BBBEE score on which Nedbank prides itself.
It's such a predictable argument. You have to ask why have these fucking BEE codes when politicians and commentators negate the process at will.