‘It is in the governmental interest to represent organs of state involved in litigation.’

By Ian Gough

In terms of s 3(3) of the State Attorney Act 56 of 1957, the state attorney has a discretion to act for a litigant in a matter where the government is a party to proceedings or where it is not a party but has an interest in a matter, or otherwise where the government is concerned in such matter. The Act’s predecessor, the Government Attorney Act 25 of 1925, contained a similar provision, however this discretion lay with the Justice Minister.

The position in the United Kingdom and Australia

In English law the Attorney-General has the power to act in matters where the Crown has an interest in legal proceedings. As part of the Crown prerogative, the Attorney-General, when suing on his own motion on behalf of the Crown or when sued on its behalf, has an unimpeachable right to choose the place of trial. This right, known as the right to have a trial at bar, extends to those matters where the Crown has an interest in the litigation or dispute (JM Evans (ed) De Smith’s Judicial Review of Administrative Action 4ed (London: Stevens & Sons 1980) at 449).

Two early cases in English law are illustrative of the courts holding that the Crown had an interest in legal proceedings although it was not a party to such proceedings.

In Rowe v Brenton [1828] 8B and C 737 the plaintiff was a tenant of Crown land that was subject to a conversionary tenement. The plaintiff had sunk a shaft and had raised copper ore from the land. The defendant had carried away the ore and had under-mined the land on which the plaintiff had mined. The Attorney-General, on behalf of the defendant, stated that the defendant claimed the ore as a lessee under the Crown in right. The court found that the plaintiff’s rights were only in respect of base tenure and he had no right to the ore. It appeared that all copper ore that had been worked in the past had been worked by virtue of leases from the Duke of Cornwall or the king and the defendant held such a lease. The Attorney-General, acting on behalf of the lessee, had demanded a trial at bar as a matter of right, which the court granted, holding that the Crown had sufficient interest in the proceedings to entitle the Attorney-General to select the venue.

In Attorney-General and Kennedy and Turner v Barker and Hodgson LR 7 Exch 177 the queen, as lady of the manor, had granted two licensees power to enter on the land comprised in the manor and to search and carry away minerals subject to the payment of compensation for surface damage. The licensees entered the land and began mining operations without the consent of the tenants of the surface land. These tenants instituted action against the licensees for trespass. The Attorney-General, on behalf of the licensees, applied for the declaration of rights and for an order that the action for trespass should be restrained. The court held that, as the rights of the sovereign were involved, the sovereign was entitled to bring an action in any litigation affecting those rights.

In both of these cases the rights of those represented by the Attorney-General had derived from the Crown.

In Brownsea Haven Properties Ltd v Poole Corporation [1958] 1 All ER 205 the treasury solicitor acted for a local authority in an application to declare an order of the local authority ultra vires. According to the court, the real question at issue was whether local authorities, of which the appellant was one, had the power to make orders of the kind referred to. The court held that the Crown had an interest. Lord Evershed stated at 210:

‘In the present case … I feel no doubt at all that the Crown has an “interest”, according to the ordinary acceptation of that word, in the subject matter in dispute. Traffic control is notoriously a matter of national concern.’

In two old English cases the court held that the Crown had an interest in the litigation where the defendants held high offices of the Crown. One was Lord Bellamont’s case 2 SALK 625. Bellamont, the governor of New York at the turn of the 19th century, had been sued for damages for alleged abuse of authority and was represented by the Attorney-General.

In Buron v Denman (1848) 2 Ex 167 the defendant was a vice-admiral of the British navy who had seized the plaintiff’s slaves. The plaintiff had sued Denman for damages allegedly suffered as a result of the seizure of the slaves. The actions of Denman were adopted and ratified by the ministers of the Crown.

In both these cases the court held that the Crown was entitled to a trial at bar as it had an interest in the proceedings.

In The King v The Archbishop of Canterbury and Another [1902] 2 KB 503 and The King on the Prosecution of AW Cobham v Archbishop of Canterbury [1903] 1 KB 289 a rule nisi was granted at the instance of the prosecutors Cobham and Garbett calling on the Archbishop and his vicar-general to show cause why a prerogative writ of mandamus should not issue commanding them to hear opponents of the confirmation of Canon Gore as the bishop elect of the diocese of Worcester. The Attorney-General intervened on the basis of the Crown having an interest. The court held that the treasury solicitor’s representation of the Archbishop was lawful as the Crown had an interest in the proceedings.

What constituted the Crown’s interest in litigation was examined and explained in Dixon v Farrer, Secretary of the Board of Trade [1886] 18 QB 43, where the plaintiff maintained that the Crown had an interest in only those proceedings in which the proprietary rights of the sovereign, either in his personal capacity or as head of the state, were affected. On the other hand, the Attorney-General argued that the Crown had an interest where one of the parties was a servant of the Crown. This, according to the court, would include the situation where a public official was charged with acts alleged to have been an abuse of his office. In these circumstances, the court held, if judgment was obtained against the official, he would be personally liable for the damages and any action for the enforcement of the judgment would be against him only. Accordingly, neither the sovereign nor the state would be directly affected by the decision. Notwithstanding this, the court held that the Crown had an interest in litigation involving such officials as the Crown had an interest in seeing that the duties of its servants were properly discharged.

In the court a quo in Dixon v Farrer, Secretary of the Board of Trade [1886] 17 QB 658 Wills J stated at 666: ‘[T]he right to a trial at bar exists … in cases in which the sovereign intervenes in a different capacity, as the head of the state and authorised by the constitution, through the responsible ministers of the Crown, to enforce law and good government and to afford the protection of the state to public officers sued in courts of justice for acts done by them in the discharge of their duties as servants of the Crown. It is clear also that the right applies equally to civil cases and to criminal prosecutions … .’

Two Australian cases indicate instances where the government solicitor of Australia acted in the interest of the Crown where the Crown was not party to the litigation. In both cases the right of the defendant to recover costs was in issue.

In Blackall v Trotter (No 1) [1969] VR 939 the defendant was represented by a solicitor of the Insurance Commissioner in a claim arising out of an accident involving a motor vehicle insured under a contract of insurance with the Insurance Commissioner under part V of the Motor Car Act 1958 (No 6325). It was held that the Crown had an interest in the proceedings and that the defendant was entitled to recover the costs awarded against the plaintiff, notwithstanding the defendant not being personally liable for the costs of the solicitor.

In Inglis v Moore and Others No 2 (1979) 25 ALR 453 the defendants were employees of the Commonwealth in the parliamentary library who were sued by a co-employee in connection with action taken in the course of their employment. The Crown solicitor appeared on behalf of the defendants.

Davis J stated: ‘The events which gave rise to this action occurred in the functioning of the Commonwealth Public Service. The appellant and each of the respondents were members of the public service employed in a post having a relationship to the parliamentary library, Canberra. The respondents were not sued as officers or employees of the Commonwealth. They were sued personally but in relation to orders, minutes, instructions and like acts, which occurred within the public service, albeit their acts were, in the view of the appellant, wrongful, malicious and not made in the due performance of the duties imposed upon the respondents’ (at 462).

According to the court, the entitlement of the Crown solicitor to act for a party other than the Crown depended on the Crown’s interests in the litigation rather than the extent of the Crown’s powers, although the limits of the power would circumscribe the range of possible Commonwealth interests. Where the Crown had an interest in the litigation, there was no reason why the Crown solicitor should not act for a party. The Commonwealth had an interest in protecting its employee against claims brought against him in respect of acts done within the scope of his employment. This was not only to protect the Commonwealth from claims made against it on the footing of its vicarious liability for the acts or torts of its employees, but also to protect its employees in performing the functions of their employment from the risk of personal liability for costs if they should be sued in respect of what they had done or attempted to have done in performing their functions (at 456 – 457).

In determining whether the government has an interest in or is concerned in litigation, factors to be taken into account include the nature of the dispute, whether it has a public character, the parties to the dispute, the relationship between the parties and the effect that the litigation may have on the state.

Representation of ministers, political heads and members of the executive council

The state attorney represents political heads, ministers or members of the executive council of a province in matters where they are sued in their official capacity relating to the exercise of their constitutional, statutory, regulatory or other defined powers, duties and responsibilities. Included in the types of proceedings are the review of the political head’s decisions; interdicts prohibiting the alleged wrongful exercise of such powers, duties and responsibilities or interdicts to compel compliance therewith; and applications for a declaration of rights. In these cases the state or the government is not a party to the litigation (see Minister of Finance v Barberton Municipal Council 1914 AD 335 at 349 and 355 – 356).

In this regard, in The King v Commissioner for Special Purposes of Income Tax [1920] 1 KB 26 the court drew a distinction between an officer who performed statutory duties and the Crown.

In the common law of England the Crown was not liable for costs. The rule did not, however, apply to an official who was charged with the performance of a duty in terms of statute although he may function as a servant of the Crown.

The court stated at 40: ‘It seems to me to follow as a matter of course that wherever the court can order a mandamus to issue to an officer charged with the performance of a statutory duty it can order that officer to receive or pay costs, for the reason that the mandamus is not an order directed to the Crown, which this court can never issue, but is an order directed to an officer.’

The state attorney also acts on behalf of political heads involved in certain types of personal actions depending on their nature. He could, therefore, act on behalf of a political head who is sued for damages for defamation for allegations made pursuant to his functions.

Political heads are inevitably cited as plaintiffs in actions where the government is involved in claiming damages against another party. In these cases the government is a party to the proceedings, the Minister suing in his representative capacity, much the same as he is cited in terms of s 2(2) of the State Liability Act 20 of 1957 as defendant.

The state attorney may be cited in his official capacity as exercising a constitutional, statutory or regulatory power. In these cases the government would not be a party to the proceedings.

Organs of state, statutory boards and bodies

It is in the governmental interest to represent organs of state involved in litigation. Not all organs of state are, however, represented by the state attorney. As a matter of policy, organs of state that are statutory corporations or which derive income from sources other than the state, such as Eskom, the SABC and Transnet, are not represented by the state attorney.

In general, the state attorney represents the Chapter Nine institutions, the public service and commissions. This is not exclusive. The state attorney also acts for the National Director of Prosecutions or the respective directors of public prosecutions in civil matters.

In addition, the state attorney represents magistrates, small claims court commissioners and licensing authorities when their decisions are taken on review.

It is, however, incumbent on the state attorney to determine in each case whether to exercise his discretion to act for such organs or bodies.

Employees of the state

The state attorney represents individual employees in both criminal and civil matters. Often individual employees are sued with the state for actions allegedly committed by them where the state is vicariously liable. However, in some cases individual employees may be sued for acts arising out of their employment where the state is not a party. These cases are ones in which the government clearly has an interest. The state attorney also represents employees in certain personal actions, including actions for damages for personal injuries arising out of a motor vehicle accident against the Road Accident Fund. In addition, the state attorney has represented employees that have sued for defamation where the alleged defamatory statement related to performance of the functions of the employee (see Potgieter v Ellis and Another 1948 (3) SA 1183 (D)). There is, however, a long-standing directive of the director-general of the Justice Department that such actions may only be instituted with the written consent of the director-general.

The state attorney also acts for employees who have been charged with certain criminal offences. The nature of the offence is, however, paramount in determining whether or not to act for the employee. The state attorney does not generally act for employees charged with offences involving an element of dishonesty, such as theft, fraud or corruption. The gravity of the offence will also affect the state attorney’s discretion in deciding whether to represent an employee.

In each case involving the representation of a person in the governmental interest, the Justice Minister has an overriding discretion to permit such representation. Practices have developed over the years with regard to the representation of employees. As far as I am aware, in cases where an employee is cited in civil matters or joined as a wrongdoer, state attorneys do not refer the matter to the Minister. The same applies to ‘run of the mill’ criminal matters such as assault or reckless and negligent driving. However, in matters that are out of the ordinary or are abnormally severe, such as those involving allegations of murder, state attorneys refer the matter to the Minister or his delegate for his decision as to whether or not to represent an employee.

Ian Gough BCom LLB (Rhodes) LLM (UKZN) is a state attorney in Bloemfontein.

This article was first published in De Rebus in 2012 (June) DR 30.