The law is not neutral — it serves power or it serves the people

Mail & Guardian

13-06-2025

The recent court challenge by corporate law firms against the Legal Sector Code is more than a legal dispute, it represents a profound political and institutional crisis. It calls on all members of the legal fraternity, across every sector, to respond with clarity, conviction and courage. The law does not exist in a vacuum, untouched by our country's history, and neither should we.
At the core of this legal challenge is a disturbing message that the inclusion of black people in key parts of the legal sector is bad for business. The use of law to defend elite power is nothing new — it has long been a tool for preserving exclusion in South Africa. From the legal justifications of apartheid to post-apartheid tactics of delay and obstruction, the legal profession has often stood guard over the gates of privilege. It is therefore unsurprising — though no less alarming — that this claim is now being made under oath, in a country where the majority is black.
If this moment does not compel us to speak out, then perhaps we are complicit in the unequal future being forged in our name. As in every contested space, power does not yield without a contestation — it fortifies itself.
The government's black economic empowerment code for the legal sector reveals that, three decades into democracy, these corporate law firms have not been able to self-regulate in a way that meaningfully includes black professionals at the highest levels. These same firms are adept at identifying black talent on university campuses, sitting on transformation committees, publishing polished equity reports and championing mentorship initiatives.
Yet, when real accountability is required and they are asked to disrupt entrenched patterns of opportunity, democratise access to work for smaller firms or transparently report on transformation progress, they recoil, and compliance is then framed as a threat to their freedom to trade. This is not a principled stand; it is a calculated defence of privilege. It exposes a profession more committed to the appearance of transformation than to its substance.
While these corporate law firms tie transformation in red tape and legal technicalities, we must remember that the Constitution is not neutral. It is a charter for total social transformation and it commits South Africa to a future rooted in social justice, human dignity, equality and freedom for all. It rejects all forms of racism and sexism and it demands that we all play a role in building an inclusive society.
We must abandon the romantic notion that the Constitution will do the work on its own. As a transformative charter, it demands action — not from some anonymous public, but from the very institutions and professions that now invoke it to escape accountability. Section 22 of the Constitution protects the right to choose one's profession and it was never meant to entrench monopoly power. Yet, in the hands of some corporate firms, it is being used to stall transformation and delegitimise a fair redistribution of opportunity.
When a fraternity sees the very Constitution born of struggle being used to shield privilege, the bitter irony must not go uncontested because corporate law firms are not exempt from confronting the dissonance between constitutional ideals and the lived realities of South African society. The rule of law must never be weaponised to preserve an unjust social order. If these firms truly valued legal integrity and constitutional governance, they would have embraced transformation long ago. They've had more than 30 years and have consistently chosen not to. Similarly, had they attended to meaningful transformation, government intervention would not be necessary.
Similarly, Kathleen Dlepu, former chairperson of the Legal Practice Council, asked: 'What if the voices of resistance to the Legal Sector Code aren't just coming from the usual suspects? What if, behind the legal jargon and procedural masks, we find the fingerprints of those who once pledged allegiance to transformation, not as outsiders, but from within?'
Her words force uncomfortable questions: Who signed these court papers? Which senior counsel is willing to lend their name to this gatekeeping? Which junior counsel, allegedly the future, is being showcased as window dressing while undermining black advancement? These questions matter because law is never neutral. It either serves power or it serves the people and the South African story requires that the law is used for the good of the people.
The entire legal fraternity bears a social responsibility to take a clear and public stance on what is unfolding. The disproportionate stranglehold on transformation maintained by firms that built their power during the darkest chapters of this country's history must be called into question. We cannot look to institutions that profited from the systemic exclusion of black people to lead us into a just future especially when their messages, no matter who delivers them, ultimately undermine the legitimacy of black practitioners. Transformation is not a favour; it is a constitutional imperative that rests on all stakeholders.
This is a moment for clarity — not compromise. The legal profession cannot continue to obscure its failings behind rhetoric. It cannot claim nobility while actively defending structural exclusion and those of us who believe in the Constitution's vision must be willing to call this out for what it is — a crisis of legitimacy. Beneath the veneer of constitutional argument lies a longstanding truth — the powers that control corporate law in South Africa hold the view that transformation in the legal profession is, and has always been, treated as optional. Similarly, this is a moment to acknowledge that entry into elite corporate law circles has often required silence about the racial inequalities that continue to shape our profession.
People died for this democracy. Scores of people willingly and unwillingly gave up their singular human experiences in the name of the idea that, one day, this country would not require the well-being and prosperity of black people as a sacrifice for a firm to remain in business. We cannot let those sacrifices happen in vain.
Bwanika Lwanga is a corporate and commercial attorney and a columnist with an interest in African regional trade, spatial justice and social justice issues.
Abongile Nkamisa is a lawyer and legal researcher interested in corporate accountability, access to information and law to advance social justice.