Welcome to the men’s club! Advocates and senior counsels Tembeka Ngcukaitobi, Wim Trengove, Ngwako Maenetje and Geoff Budlender have captured the attention of the state and the Department of Justice (DoJ) with their legal expertise and compelling advocacy skills. The four men have been briefed to help with the investigation and prosecution of State Capture crimes. The DoJ asked them to “guide investigations and oversee prosecutions”.

The appointments have been welcomed by National Prosecuting Authority (NPA) communications head Bulelwa Makeke, who said:

“The services of these experienced advocates will be to assist the ID in their investigative work and, where necessary, with the actual prosecution of matters.”

The same sentiment has been shared by the spokesperson of the DoJ, Chrispin Phiri, who indicated that:

“The advocates will assist the NPA in their investigative work and, where necessary, with the actual prosecution of matters.”

Each of these legal eagles is assured of pocketing up to R5-million in legal fees for assisting the state in dealing with State Capture crimes.

The engagement of the services of Ngcukaitobi, Trengove, Maenetje and Budlender was preceded by President Cyril Ramaphosa’s appointment in May 2019 of advocate Hermione Cronje to head the Investigating Directorate (ID) in the Office of the National Director of Public Prosecutions to focus on State Capture crimes.

The appointment of Cronje followed Ramaphosa’s proclamation in March 2019 of the establishment of the ID, in terms of Section 7(1) of the National Prosecuting Authority Act 32 of 1998.

Make no mistake, Ngcukaitobi, Trengove, Maenetje and Budlender have deserved their acclaim as top legal eagles.

Ngcukaitobi can be remembered for his well-thought-out argument as part of the legal team that represented the EFF’s successful bid in 2016 for an order by the North Gauteng High Court for the release of the State Capture report. He also argued in defence of Julius Malema regarding the EFF chief’s November 2018 speech outside the State Capture inquiry criticising certain journalists by name and imploring his supporters to challenge “the enemy” and “cut the head”. Ngcukaitobi argued that Malema’s intention was only to demand that journalists report fairly and honestly about Ramaphosa and Public Enterprises Minister Pravin Gordhan’s roles in the Zuma administration.

Trengove played a role as the State legal representative who argued before the KwaZulu-Natal High Court in Pietermaritzburg that Zuma should not be allowed to invoke the tainted spy tapes to secure a permanent stay of prosecution for arms deal corruption charges against him.

In July 2019, Trengove represented Gordhan in his attempt to interdict adverse findings of Public Protector Busisiwe Mkhwebane in which she found Gordhan guilty of violating the Constitution through the so-called SARS “rogue unit”.

Trengove, a highly experienced adjudicator, has made many appearances before the Constitutional Court. Like Ngcukaitobi, he once represented the EFF in the 2016 Nkandla case. Trengove’s apparent interest in fighting corruption can better be explicated with his statement in the Nkandla case that Zuma “also violated this ethical duty in his defiance of the public protector because he defied the public protector as president of this country in order to protect his ill-gotten gains”.

Maenetje is also no stranger to cases related to gross corruption. In the 2017 Nkandla case, he represented then Speaker of the National Assembly, Baleka Mbete, and conceded to Chief Justice Mogoeng Mogoeng that Mbete could have “done more” to institute proceedings to determine if there were grounds to impeach Zuma for using state funds for his private Nkandla home. He said, “Ultimately if there is a failure‚ that failure is of the collective responsibility of the National Assembly. It must fall to the National Assembly, not the speaker.”

Budlender is also a distinguished silk. His role in the corruption and Zuma saga came into the spotlight when he argued on behalf of the Council for the Advancement of the South African Constitution and addressed the issue of “judicial overreach”.

He was in 2016 commissioned by Tokyo Sexwale, then a non-executive chair of Trillian, to investigate claims of links between the Gupta family and Trillian Capital Partners that was 60% owned by Gupta associates Eric Wood and Salim Essa. This commissioned investigation was triggered by Sunday Times allegations of State Capture and pre-knowledge by a member or members of Trillian that Zuma would be replacing then finance minister Nhlanhla Nene with Des van Rooyen. The outcome was the damning 2017 report exposing the Gupta-linked Trillian Capital of corrupt practices involving multimillion-rand payments from Eskom and Transnet.

It is obvious from the narrative above that the four advocates were carefully selected and engaged.

But allow me to take a different view on their appointment to assist in the investigation and prosecution of State Capture. Where are the senior female advocates and why are they not given the work alongside their male counterparts?

The issue of gender parity and diversity in respect of the legal profession is an ongoing concern, and has been so for decades. More concerning is when female legal practitioners are not considered worthy of high profile cases by the State.

In 2013, for example, Dumisa Ntsebeza expressed concern that the government was failing black and female advocates by not giving them meaningful and enough work to allow them to get experience. At the time, Jacob Skosana of the DoJ said the Legal Practice Act would address the problem. But it is as clear as daylight that the more things change the more they remain the same.

The judge president of the Western Cape, at the October 2017 hearings of the Judicial Service Commission (JSC), questioned the skewed briefing patterns that exist, and do not represent the demographic profile of the South African legal profession.

Writing on women at the bar in England and Wales, Janet Kentridge noted in 2004 that, “The less challenging work women receive, the less experience they have, the less they are qualified to do such work in the future, the less exposure they have, the less likely they are to become silks, and judges, and judges of appeal.”

I am not against the appointment of the four advocates in question; my concern is the impression created that high profile cases in South Africa are reserved for men and characterised by the recycling of a few top-notch legal practitioners.

Where are SA’s top women lawyers? The last time I checked we had the likes of Lindi Nkosi-Thomas SC, Beverley Fourie SC, Adelé de Wet SC, Lesego Matlhodi Montsho SC and Kgomotso Moroka SC. If we do indeed have these capable women and their like, why then in most high profile cases does the briefing of legal practitioners by the government to critical roles not represent the demographic profile of the South African legal profession? Is the State unwittingly advancing and promoting the historic privilege of men in the legal profession with its gender unrepresentative appointments?

Besides the fact that Ngcukaitobi, Trengove, Maenetje and Budlender are well-experienced in high profile litigation and have exposure to grand corruption cases (including State Capture), they are all men, appointed for briefing by the state to help with a problem that was primarily created and/or enabled by men. The issue of gender-based briefings must not be left behind as the state scouts the length and breadth of South Africa to find top attorneys and advocates to help in the investigation and prosecution of State Capture crimes. It should not only be about men.

Of course, sexism at the Bar and inequitable briefing patterns are broader than the appointments in connection with State Capture. The Bar has been trying very hard to self-regulate on this matter. The Johannesburg Bar in 2016 took a resolution that it would “henceforth constitute unprofessional conduct and therefore a disciplinary offence for lead counsel to accept or remain on brief where there is a team of three or more counsel on brief in a matter and no member of the team is a black person”.

Unfortunately, this resolution did not particularly foster the briefing of women. To address this holistically and comprehensively, the minister of justice and the Legal Practice Council may have to think along the lines of the Law Council of Australia, which in 2016 reformulated the regulatory initiative called the Equitable Briefing Policy (EBP). Before that, female representation in Australia was dealt with in terms of the 2004 policy called the Model Equal Opportunity Briefing Policy for Female Barristers and Advocates (MBP).

The EBP aims to deal with the disadvantages experienced by female practitioners at the Australian Bar, and seeks to debunk the myth that in terms of the “trickle-up” approach – which assumes that “the historical predominance of men in the field of law will simply resolve itself over time” – no corrective action is needed.

The EBP was based on an investigation report (NARS Report) that found, among other things, that women are not “receiving access to the number or the kind of briefs compared to their male counterparts”.

The same can be said without hesitation about women legal practitioners in South Africa. DM