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:
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:
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:
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:
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 –
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, nomfundo@derebus.org.za
This article was first published in De Rebus in 2012 (July) DR 9.