Transformation of state legal services

July 1st, 2012

By Nomfundo Manyathi

On 21 May 2012 Justice Minister Jeff Radebe introduced a framework aimed at revolutionising the public legal sector to enable it to provide a high standard of legal services for all.

The plans will result in an overhaul of state legal services, including the Office of the State Attorney.

In a statement, Minister Radebe said that the state was the largest consumer of legal services in southern Africa and that its litigation account ran into billions of rands annually.

The Minister said that the reforms aimed to address some of the shortcomings in the current system that resulted in government losing court cases it should not have lost and embarking on ill-fated litigation where it ought to have considered alternative forms of redress, thus resulting in huge costs to the fiscus.

The reforms also aimed to broaden the pool of legal practitioners briefed by the state to ensure a fair representation of black and women practitioners.

Minister Radebe said that the transformation of the judicial system, and of the judiciary in particular, would be incomplete without the transformation of the legal profession. They were ‘two sides of the same coin’, he said.

Minister Radebe said that the lack of effective coordination of legal services had led to a number of operational challenges for government, including:

  • Prescription of claims involving government.
  • Default judgments granted against government.
  • Insufficient preparation by attorneys and advocates.
  • Instead of settling matters, attorneys and advocates proceeded against instructions and consequently burdened the state with unnecessary cost orders.
  • Lack of monitoring systems over the work and output of attorneys and advocates.
  • Inconsistency in the determination of counsel fees by the different branches of the Office of the State Attorney.

Briefing practices

Minister Radebe said that there was a general outcry in the profession that previously disadvantaged individuals (PDIs) were not given briefs or, where they did receive briefs, the value of these was not commensurate with transformational objectives. He said that some of the inadequacies relating to allocation of legal work to practitioners included:

  • Briefs not being awarded on an equitable basis – big law firms in the cities and affluent areas and white counsel receive preference over PDIs and single practitioners in underprivileged areas.
  • Women are overlooked due to gender prejudices.
  • PDIs are not briefed to perform specialised and commercial legal work.
  • PDIs are not briefed in constitutional matters, resulting in a select few advocates appearing in the Constitutional Court.
  • Many young advocates are not given work.
  • State entities brief private counsel directly, with some of them engaging the services of private counsel on a retainer basis.

Minister Radebe said that these practices resulted in white practitioners receiving preference over PDIs, in particular with regard to work in commercial, tax, environmental and other areas of specialised law.

Minister Radebe said that the proposed policy framework sought to remove obstacles to access to legal work and to ensure a fair and equitable distribution of work.

The policy framework will apply to:

  • The affected units of the Justice Department, including the Office of the State Attorney and its branches.
  • All state entities subject to the Public Finance Management Act 1 of 1999.
  • All private legal firms and legal practitioners contracted by the state and its entities to provide legal work.

Minister Radebe proposed the creation of a system for sourcing legal work and allocating briefs to attorneys and advocates from a database of legal practitioners to be established. He added that the database would be a broad representative pool of practitioners spread across the various specialised fields of law.

Minister Radebe said that a tool for measuring the work of practitioners and the transfer of skills through the outsourcing of legal work would be created. He said: ‘The tool must ensure that PDIs and new entrants into legal practice, in particular women, are empowered not only as a constitutional imperative, but also to hone their legal skills and thereby enhance the quality of their output.’

Minister Radebe said that the issuing of legal briefs would be aimed at promoting and facilitating the development of skills in multiple legal disciplines, as well as ensuring an increase in the pool of expertise of black legal practitioners from which judicial appointments could be made.

Minister Radebe said that the following measures should apply when advocates are briefed to ensure an exchange of critical skills:

  • Where more than one practitioner is briefed, at least one of them must be previously disadvantaged.
  • Briefs to senior and junior counsel should be issued on condition that junior advocates will be actively involved in the performance of all activities.
  • Consideration must be given to practitioners from small legal firms who do not have the same exposure as bigger firms.

Functional structure

Minister Radebe said that the primary objective of the policy framework in the medium-term was to consolidate and streamline all state legal services under a single functionary, who will be appointed as the head of state legal services.

‘The head of state legal services, who will occupy a position of, or that similar to, the Solicitor General in comparable jurisdictions, will be the state’s chief legal adviser [and] will represent the state in all civil litigation (in the same way that the National Director of Public Prosecutions represents the state in criminal prosecutions),’ he said.

The head of state legal services will oversee the following in relation to state legal services –

  • intergovernmental coordination;
  • specialist litigation;
  • general litigation;
  • mediation services and alternative dispute resolution mechanisms;
  • legislation certification;
  • state legal advisory services; and
  • corporate management and research (cooperative governance).

Minister Radebe said that the head of state legal services would be appointed ‘urgently’ as this appointment would set in motion the institutional arrangements aimed at transforming state legal services.

Minister Radebe concluded by saying that the policy framework was a ‘milestone in the transformation of the legal profession’ and that, together with the Legal Practice Bill, it would ‘go a long way towards the development of jurisprudence in South Africa’.

Nomfundo Manyathi,

This article was first published in De Rebus in 2012 (July) DR 9.