Stakeholders urged to work with the Office of the Solicitor-General

January 6th, 2023

The Solicitor-General, Fhedzisani Pandelani, hosted a stakeholder meeting in Gauteng on 23 November 2022. The meeting started with a brief virtual address by the Minister of Justice and Correctional Services, Ronald Lamola. Mr Lamola said that since the establishment of the Office of the Solicitor-General it has been his desire that the State Attorney Offices and its operations are stabilised in the whole country. He added that the Office of the Solicitor-General is the central authority of the state legal services and the executive officer of all state attorneys in the country.

Mr Lamola called on stakeholders to continue to work with the Office of the Solicitor-General to stabilise their offices. Mr Lamola said that the government has a responsibility to receive fair value for legal services and the state attorney must also receive fair value for all the legal services it receives. He added that the state attorney has the duty to ensure transformation of the justice system and more broadly the legal profession. To ensure equality and equal opportunities for all in terms of s 92 of the Constitution of South Africa (SA).

Mr Lamola said this imperative is essential for government to achieve and ensure a better life for all its citizens and that all South Africans participate fairly and equally in the legal profession. ‘It is not with that the scarcity of the previously disadvantaged individuals and in particular women and in the pool of practitioners who continue to dominate constitutional and other high-profile litigation has the consequential effect in the slow pace of transformation. The transfer of skills pertaining between skilled practitioners and those practitioners who are still at the developmental stage is not only imperative but also beneficial to the state and the country as a whole,’ Mr Lamola added.

Solicitor General, Fhedzisani Pandelani, during a stakeholder meeting hosted by his office in Gauteng.

Mr Lamola pointed out that the State Attorney Amendment Act 13 of 2014 is an enabling tool that must be used to transform the legal profession, however, he said that the Act alone is not enough, he added that the Office of the Solicitor-General is the nerve centre of the state’s legal services and consumption of the state’s legal services should assist in the turnaround of the provision of the state’s legal services. He said that in doing so the Office of the Solicitor-General is going to require the assistance and support not only of the State Attorney Offices, but also state departments and private legal practitioners as well.

Mr Lamola pointed out that in order to give effect to the government transformation policies, the Office of the Solicitor-General has finalised the enrolment of briefing and outsourcing of the state legal work policy. He added that the policy will be sent to the cabinet committee and Parliament to finalise the process. ‘The Office of the Solicitor-General is in consultation with National Treasury to develop a contract to solicit information from legal service providers to enable the state to establish a pre-approved list of qualified legal services provider attorneys and advocates respectively’, Mr Lamola added.

Matshepo Mobeng from the State Attorney Offices highlighted some of the challenges that they face when it comes to state legal services and the outsourcing of work to private legal practitioners. She said the requirements to outsource work requires a lot of information that legal practitioners need to take to the State Attorney Offices in order for them to satisfy themselves and so that the National Treasury and the Auditor-General can see that the state office is doing what is required. She added the challenge is that legal practitioners are not always willing to corporate with the State Attorney Offices. She pointed out that state attorneys will send requests for codes along with timelines for when the requests should be sent back to the State Attorney Offices.

Ms Mobeng said most of the time state attorneys find themselves in a situation where they must redo the process because some practitioners do not respond at all, or they do not respond timeously. She added that when that happens they get accused of just ticking the box, which she pointed out is not true. She added that when the State Attorney Offices try to expose up-and-coming legal practitioners to work, they are accused of using incompetent people, she said it is difficult to find a balance and to satisfy everyone.

Panelist, Thabo Masombuka, said in 2016 the Law Society of South Africa (LSSA) convened a Summit on Briefing Patterns in which Procurement Protocols were developed and were expected to be signed on. He asked if there was commitment to do so? He added that to the extent that legal practitioners at the meeting spoke mostly of shared frustrations regarding state legal work shows that there was no commitment with regards to the LSSA’s Procurement Protocols. He added that according to his observation, what happened was those who had an opportunity to deal with skewed briefing patterns have either not done so or became comfortable with the briefing patterns.

Mr Masombuka said this created an impression that black people should close the door and self-introspect and tell each other things they do not want to hear. He added that the State Attorney Offices are better places to dismantle the challenges practitioners have with skewed briefing patterns without excuses.

Council Member of the Legal Practice Council (LPC), Kathleen Matolo-Dlepu, said that the sad part for someone like her who has been in practice for the past 30-years, is that each time one knocks at the door, one is asked for experience, which they will not ask for in a white law firm, but they look for it in a black law firm. She added that there is a problem because the legal profession has two professionals, namely, attorneys and advocates and that this presents an artificial relationship between the two professions. She pointed that there is a discussion about briefing patterns, however, attorneys are not even briefed, and the same advocates want attorneys to brief them. She said if attorneys do not get work, they are unable to brief advocates. She added that this must be dealt with and that attorneys need to be able to get work from government.

Ms Matolo-Dlepu also raised the issue of self-monitoring. She said that it has never worked in SA. She pointed out that it is the reason why the LPC is dealing with the issue of transformation through the Codes of Good Practice on Broad-Based Black Economic Empowerment. She pointed out that under the Codes the LPC wants a Legal Sector Council that will monitor the State Attorney Offices, state-owned enterprises, and the municipalities so that they can make sure that when they say they are giving 90% of work to black legal practitioners and female legal practitioners it is indeed true.

One of the panel discussions, included, from left: Legal practitioner, Ronny Mkhwanazi; legal practitioner, Elizabeth Makhanani Baloyi-Mere SC; Council Member of the Legal Practice Council, Kathleen Matolo-Dlepu; and legal practitioner, Thabo Masombuka.

Legal practitioner, Elizabeth Makhanani Baloyi-Mere SC, said that since 1994, the word ‘transformation’ has been thrown around but there has never been a real conversation about what transformation is and how black people have been marginalised for all those years. She added that there has never been a conversation on how women have been marginalised, she said that there has never been confrontation with regards to those issues. ‘We cannot keep putting a plaster on a crack and hoping that it will stick. We need to go back to the basics and look back on what [Ms Matolo-Dlepu] has referred to. Why are the big law firms getting work from the state and small law firms are not? Why are we not pairing small law firms with big law firms in order for them to get experience? Why are we not pairing all the other advocates with white male advocates who have been doing work for Sars for so many years? Why do we not pair them with black junior advocates because we are told its specialised work?’

Ms Baloyi-Mere said the legal profession is not taking a deliberate step to heal and close the gap. She said until the issues she spoke to are not confronted, year in, year out, there will be meetings talking about the same issues.

Legal practitioner Ronny Mkhwanazi said that for the past few years he has seen the change with regards to briefing patterns changing towards going to black law firms. He added that whether or not the firm is good enough to do the work, it is a personal decision for that firm in terms of whether they are able to deliver the mandate. ‘I don’t believe that everybody should be brushed with the same brush in terms of this issue,’ Mr Mkhwanazi said.

Mr Mkhwanazi pointed out that for the past financial year the spend of the Auditor-General’s legal fees was approximately R 1,5 billion. The question is what amount of that money is for legal fees, and what amount is for costs? He said he would like to know from the Office of the Solicitor-General whether they have made an assessment to see where the money is being spent as far as legal fees go. He added that it would be erroneous to say there is waste and overcharging by legal practitioners if in fact the issue is wastage and incapacity by the clients of the state attorney.

Mr Mkhwanazi said the conversation should start there, so that when they discuss the issue of legal fees, they are able to say that in the R 1,5 billion, this is what was spent here and this is what went to legal practitioners, so that the perception that legal practitioners are overreaching is removed. He admitted that legal fees are expensive in South Africa. ‘In fact, I doubt it myself even as a lawyer that if I needed to brief a lawyer in my personal capacity, whether I will be able to afford legal fees,’ Mr Mkhwanazi added. He pointed out that the questions become who set the legal fees? And how does one determine a senior council verses a legal practitioner who has been in practice for 15 years. He said that is a conversation that needs to be discussed.

Some of the challenges that were raised by attendees included –

  • briefing patterns;
  • request for quote systems;
  • operation of the state attorneys;
  • legal fees;
  • private legal practitioners not being briefed;
  • black female legal practitioners not being briefed;
  • repetition issues on work given to some legal practitioners;
  • procuring of legal services; and

While addressing the attendees, Solicitor-General Pandelani, said that there should be ongoing debates on the issues and challenges that legal practitioners have, however, he pointed out that it should not be debates for the sake of debating, but should be effective and intended to achieve a milestone. He said that he observed that the debate was more about the politics but not building on how to disrupt what has been happening. He pointed out that in February 2020 the State Attorneys Amendment Act was proclaimed, however, he said that legal practitioners have kept quiet for almost six years when that Act was being supressed.

Mr Pandelani pointed out that the Act was in fact promulgated in 2014 and not a single organised body raised their hand to advance transformation or raised the issue of why this piece of legislation was held back. He added that the time then came that the state on its own volition decided to proclaim the same piece of legislation that for six years the organised legal profession kept quiet about. He said that people complaining are those who have never raised their hands when his office asked for assistance.

Mr Pandelani said that when he was appointed the Solicitor-General there was no substantive offices of the state attorney, that there was only one in the old dispensation in Pretoria and all other offices were just branches. He added that with the proclamation of the State Attorney Amendment Act they are now able to have 13 State Attorney Offices. He said the reason he raised that is that there is no one nerve centre in relation to State Attorney Offices. The only nerve centre that is there for consumption of state legal services is the Office of the Solicitor-General. He pointed out that his office is engaging legal practitioners so that they can give his office the outlook of the Office of the Solicitor-General that will be optimal to serve the interest of legal practitioners.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.