No resting the case
The constitution has one of its fiercest defenders in this legal hotshot, writes
SOME call him “Babes Womthetho”. Some call him the Robin to Dali Mpofu’s Batman. Some call him Presidential Material.
Whatever you call him, Advocate Tembeka Ngcukaitobi is laying down the law.
Silver-tongued Ngcukaitobi shot to fame recently with a stellar performance for the EFF in its high court bid to win the release of the public protector’s State of Capture report. And this week, he helped win bail for University of the Witwatersrand fallist leader Mcebo Dlamini.
But he’s been shaking the legal tree for years — by championing the progressiveness of the constitution on land reform, and by co-authoring a quota rule at the Johannesburg Bar that requires teams of three or more advocates to include at least one black counsel.
“I’ve been watching the system — there are still areas of resistance, but overall it’s working,” says Ngcukaitobi of the quota. “You have to impose transformation from the top, because it’s not happening enough from below.
“Once advocates are in the profession, there is a problem of access to good-quality work, which tends to be allocated to white men. But it’s shifting. I remember coming into Bowman Gilfillan in 2001 and being astonished that there were only two black partners. When I left in 2010, there were 15, and a total of 80 black lawyers. But we need critical mass — a big shift in recruitment.
“There is no shortage of ability, just of numbers. I’ve seen incredibly talented black lawyers who leave as soon as they can — often to corporate jobs as in-house counsel — because of the prejudice in briefing patterns. Getting in and staying in is the challenge.”
Ngcukaitobi’s own story is one of defiant brilliance — and the inheritance of his father’s dream. The 39-year-old grew up in Cala, a village near Cofimvaba in the Eastern Cape.
“My father, Gcinabantu Hutchinson, worked in the mines in Johannesburg in the ’70s. He supported himself to finish matric, then returned to the Transkei and got an administrative job at the Cofimvaba Magistrate’s Court, where he became interested in law. I only discovered this when I was seven or eight.
“He died in an accident in 1983, when I was six. And in Xhosa tradition, one year after someone passes away, there is a ceremony in which his possessions are distributed to the family. I spotted these huge law books, and asked my mother what was going on. She said he FIRST PRINCIPLES: Advocate Tembeka Ngcukaitobi, framed by the door to the Constitutional Court was doing his first year of law at Unisa. That stayed with me throughout my life. I had a onetrack mind: I wanted to do what my father couldn’t do.”
In between reading and writing letters to distant relatives for his mother and village neighbours, he finished top of his class at Matanzima High, a Methodist school in Cala. That bagged him a place at the University of Natal — but his mother, a nurse, couldn’t afford to send him there. He settled for the then University of Transkei, earning a BA and LLB, and then a master’s in law at Rhodes.
Employers, he says, need to realise that excellence at a badly resourced school is a sign of vast potential.
“If you go to the top students at a poor school, they are more likely to do well in a tough environment than a poor-performing student in a top school. Over time, the gaps in school education can be closed through concentrated training and coaching — and I think that’s where we miss out on many of these kids.”
After varsity, he won clerkgood ship offers from three Constitutional Court justices: Arthur Chaskalson, Sandile Ngcobo and Kate O’Regan, and said yes to Chaskalson. “There was no debate in my mind. I have always looked up to Arthur as the model of a good lawyer and a human being.”
As for mentors at the bar, he reveres the groundbreaking Dumisa Ntsebeza, the technical brilliance of Wim Trengove, Jeremy Gauntlett and Vincent Maleka — and the sheer dynamism of Mpofu, with whom he acts as junior. “Dali has this ability to combine hardcore political work with legal work, which I would never be able to do. And I’m also inspired by an incredibly talented and insightful generation of young black lawyers.”
He joined Mpofu’s team for Gareth Cliff against M-Net — a call that provoked some brickbats. “We made a vital point about the freedom of expression, and made headway in getting powerful players like M-Net to be more tolerant of it. So I didn’t mind being associated with Cliff, from that point of view.”
But he is far more angry about the myth that the constitution is an obstacle to the redistribution of wealth. During a recent stint as an acting judge in the Land Claims Court, Ngcukaitobi sparked headlines with a judgment observing that the constitution does not require market-related compensation for land restitution, only “just and equitable” compensation, which offers leeway for lower payouts.
“We do not have sufficient consciousness of the possibility of transformation through the constitution. So much could have been done on land reform within the provisions of section 25.
“The paradox is that the constitution gives you the power to transform, but also regulates the exercise of that power. But politicians fixate on the regulation, and forget about the potentiality.”
The paradox is the constitution gives you the power to transform, but also regulates its exercise