Tembeka Ngcukaitobi has been appointed as an acting justice of the Constitutional Court, with his term scheduled to run from 1 June to 30 November 2026.
That appointment has produced a wave of celebration across social media and among commentators who read it as a victory for black excellence in the legal profession.
In the same breath, Ngcukaitobi is representing the white conservative side fighting the Legal Sector Code, a Solidarity-backed challenge to one of the clearest black empowerment instruments in the legal profession.
This means that, while commentators celebrate his rise to the CC, he is also carrying the legal argument against a code meant to shift ownership, briefs and institutional power to black practitioners.
That fact changes the entire meaning of the applause. South Africa is asked to celebrate his rise to the apex court while looking away from the courtroom where he helps carry the argument against one of the most direct instruments of black empowerment in the legal profession.
Can symbolic black ascent really mean transformation when black legal labour serves an economy of law still commanded by white institutional power?
Deneys Reitz, Webber Wentzel, Werksmans and Bowmans have entered the Gauteng high court in Pretoria to fight the Legal Sector Code. The code sets a 50% black ownership target for large firms within five years, including 25% black women ownership.
Reuters reports that white South Africans make up about 7% of the population while holding 72% of partnerships at top law firms.
The case shows how the legal fraternity converts black legal labour into a weapon against black collective advancement.
White power no longer needs to enter court with an open apartheid face when a black advocate can carry the argument against black ownership.
White institutional power can speak through merit, neutrality and constitutional reason while making a black man the enforcer of its will against his own people’s material claim.
The white system has long sent black bodies to carry out the defeat of black collective demands when open white force would reveal too much. It keeps the white face for victory, authority, civility, judgment and historical authorship. It sends black intermediaries to do the dirty work of discipline, fracture and retreat. The black figure absorbs the political heat while the white institution preserves its manners.
Ngcukaitobi’s role in this case forces a harder question than the noise around his appointment allows. Can a black advocate of his stature stand against a movement for black transformation in a profession that still locks most black lawyers out of meaningful economic power and still be received as the uncomplicated face of transformation?
Can the celebration of his appointment survive the fact that his present legal skill serves those resisting the transfer of ownership, briefs, authority and institutional control to black practitioners?
The Bar will invoke the cab-rank rule, which generally requires counsel to accept a brief in a field where they practise, even when they dislike the client or cause. Yet the rule allows refusal where conflicts, competence, availability, improper instructions, fee issues or other special circumstances arise.
The rule may explain why an advocate accepts an unpopular brief. It does not remove the political meaning of a black senior counsel carrying the argument for white conservative forces against a black empowerment code.
Large white firms built capacity through apartheid exclusion, then called inherited capacity merit after 1994. They accumulated banking work, mining work, corporate retainers, state contracts, commercial litigation, procurement pipelines and conveyancing panels through a racial order that denied black lawyers access to the same accumulation.
Democracy arrived and these firms translated apartheid advantage into market dominance. They turned exclusion into “standards”, then asked black practitioners to compete in a marketplace already loaded against them.
The Legal Sector Code strikes at this inheritance. The code confronts the ownership patterns, briefing routes, partnership structures and commercial networks through which white firms continue to command the profession.
It challenges the passage of work from one white partner to another, from one corporate boardroom to a familiar firm, from one briefing attorney to a chosen successor. It exposes the fiction that large white firms became large through neutral excellence rather than racial accumulation, protected markets and inherited access.
The large firms now ask the court to protect them from transformation targets because they claim the code lacks rationality, practicality and lawfulness.
Their public statements speak the language of broad-based transformation, while their court action seeks to remove the most direct pressure on their ownership structures.
Reuters reports that the firms argue the five-year timeline will not work because equity partnership takes longer and must follow merit. That argument avoids the centre of power. Firms inside that small elite sit closest to capital, state work and corporate command.
A small cluster of elite firms controls the high-value work that builds capacity, reputation and generational wealth, then uses the weakness produced by exclusion as evidence that black firms lack scale.
The fraternity turns black-on-black violence into a career pathway when it rewards black advocates who defend the structures that keep other black legal practitioners outside command.
Courtrooms can produce this violence through silk, heads of argument, commercial logic and constitutional diction. A black advocate can defend the commercial architecture that keeps thousands of black lawyers outside meaningful economic power.
A celebrated appointment can become the alibi for an economy that refuses black control.
The acting appointment deepens the political problem because it places a black advocate inside the apex architecture of the same legal order that sorts black legal minds into acceptable and dangerous categories.
The acceptable black advocate receives applause, briefs, silk, appointments and proximity to power. The troublesome black advocate, the rebel who refuses to serve white continuity, receives suspicion, isolation, professional punishment and eventual purging.
The fraternity understands the value of black authority administering this violence from inside the institution. White power no longer needs to perform exclusion with its own hands when a black figure can help decide which black legal practitioners become signs of progress and which ones must leave the room.
The fraternity turns representation into discipline through this mechanism. The black man becomes the enforcer of white institutional will while the institution presents the act as constitutional maturity.
Liberal commentators then provide the chorus of respectability. Many who imagine themselves radical lack the acumen to understand the structural violence against the black majority they claim to champion.
They love the black excellence trope because it gives them a clean story with a famous name, a prestigious appointment and a congratulatory post.
They have no appetite for ownership, briefs, partnership, institutional command and economic transfer. They peddle obfuscation through reductionist interpretations of black life and build small empires from slogan and spectacle.
The Legal Sector Code case reaches far beyond a technical B-BBEE dispute. The case forces the country to confront the legal profession as an apartheid asset that never underwent full economic transfer.
Law helped structure dispossession. Law protected land theft. Law defended pass controls, labour discipline, forced removals, banning orders, mining capital, farm property and white commercial privilege. After 1994, the profession rebranded itself as guardian of constitutional democracy while its internal economy barely moved.
Black lawyers know this in their bodies. They know who receives the brief, who gets introduced to the client, who enters partnership discussions, who receives patience, mentorship and second chances.
Reuters reports that current and former black employees at several of the firms described discrimination, barriers to advancement, alleged favouritism in case allocation and promotion disputes, while the firms denied discrimination and pointed to their internal processes. Those accounts show the flesh beneath the statistics.
Ngcukaitobi faces the political meaning of this moment whether the legal fraternity admits it or not.
Can a black advocate stand with the white conservative side fighting black legal empowerment and still function as the uncomplicated face of transformation?
Can the profession use individual black ascent to cover the blocked transfer of ownership, briefs and command?
Black legal labour deserves more than ceremonial applause from the order that fears black power.
It belongs in the service of the majority, not in defence of white institutional property.
It must build a legal economy under black command, with ownership, briefs, institutions, authority and historical repair placed in the hands of those locked out for generations.
Until that happens, every celebration of individual black ascent will carry the same bitter question: How does a black advocate become the sign of transformation while standing against the movement that seeks to make transformation real?
Gillian Schutte is a South African writer, filmmaker and political analyst. She specialises in African politics, geopolitics, multipolarity, media power, Western imperialism and the unfinished question of African sovereignty in post-apartheid South Africa.
The Bar will invoke the cab-rank rule, which generally requires counsel to accept a brief in a field where they practise, even when they dislike the client or cause. Yet the rule allows refusal where conflicts, competence, availability, improper instructions, fee issues or other special circumstances arise