Hon Deputy Speaker, for some time now, serious concern has been expressed about aspects of state litigation, including the quality of legal services provided to organs of state. To illustrate this point, only 38% of the cases enrolled by the Office of the State Attorney in 2011-12 were successfully litigated.
In a judgment handed down in 2006, Justice O'Regan expressed displeasure at the Office of the State Attorney in Pretoria, whose systems of training and supervision appeared to be woefully inadequate.
In a judgment handed down in 2008, Justice Madala expressed concern at the ineptitude of the State Attorney and noted: Relying on the moral obligation of the State Attorney and the Department of Justice to improve the state of affairs has been an exercise in futility.
In March 2012, Justice van Oosten observed that the instances of neglect and general decline in standards of service at the Office of the State Attorney required an in-depth investigation by the authorities.
Finally, in 2013 Justice Tuchten said that the experience of each of the members of the full Bench had been that frequently, and most disturbingly, civil litigation against the state in this division was allowed to go by default.
According to the learned judge:
The Office of the State Attorney, Pretoria, an important organ of state, is presently unable to comply with its constitutional and statutory obligations.
Clearly, the legislation from which the Office of the State Attorney derives its authority, ie the State Attorney Act, Act 56 of 1957, is outdated and does not address the modern-day challenges of a complex entity delivering legal services to the state.
These challenges include: prescriptions of claims involving government; default judgments granted against government; instead of settling matters, attorneys and advocates proceed contrary to instructions from clients and consequently burden the state with unnecessary cost orders; lack of an intergovernmental, legal-services mechanism resulting in poor co-ordination of state legal services, which has led to attorneys and advocates being instructed at national and provincial services level without the involvement of the Office of the State Attorney; inconsistency in the determination of counsel fees by the different branches of the Office of the State Attorney due to the absence of guidelines to regulate tariffs; failure to ensure equitable distribution of briefs among previously disadvantaged individuals, particularly women; and spiralling costs and over-reliance on private legal capacity.
To address these and other challenges, the State Attorney Amendment Bill amends the State Attorney Act of 1957, and endeavours to consolidate and streamline all state litigation under the co-ordination, supervision and management of a Solicitor-General. The Solicitor-General will be the state's chief legal adviser in all civil litigation, similar to the role of the National Director of Public Prosecutions in criminal matters.
The 1957 Act established one office in Pretoria, and various branches under the control of the Minister of Justice. This amending Bill provides for the establishment by the Minister of offices of the State Attorney, each with its own head, which will mean that the existing office in Pretoria and existing branches shall become offices of equal standing.
The Bill also provides that the Minister may create additional offices.
The Bill further empowers the Minister to develop policy in respect of various aspects of state litigation. The Solicitor-General, through directives and standards, will implement such policy. This policy will be determined by the Minister, in consultation with the Solicitor-General, and after consultation with the State Attorneys. Moreover, such policy must be approved by Cabinet and be tabled in Parliament for information.
It is envisaged that the amendments contained in the Bill will provide the basis for ensuring that effective and cost-efficient state legal services are provided, to such an extent that the provision of legal services to organs of state is drastically improved.
Deputy Speaker, we commend this Bill to this House. [Applause.]
There was no debate.
Declaration of vote:
Mr Speaker, no set of rules has been in place to govern the State Attorney's Office, and it has consequently become inefficient and wasteful. At times this has resulted, as you have heard, in scathing comments by the courts and in punitive cost orders against State Attorneys.
The DA supports the creation of a Solicitor-General to steer the implementation of a policy, to be drawn up by the Minister after consultation with the Solicitor-General, on matters such as the co- ordination and management of all litigation; initiating, defending and opposing of matters; and the use of alternative dispute - resolution mechanisms to avoid long, drawn-out litigation where matters should have been settled.
The policy is to be approved by Cabinet and tabled in Parliament. Sir, we would have liked an explicit requirement that the Minister of Co-operative Governance and Traditional Affairs should seek and submit the views of the provinces and the local spheres of government on the policy before it serves before Cabinet.
However, it is up to those spheres of government to make their positions known to the Co-operative Governance and Traditional Affairs Ministry, and perhaps the NCOP will insert what we thought.
We were successful in the one key amendment we asked for, namely that the policy can never override the professional duty of an attorney, also of a State Attorney, to his client. Policy drawn up by a national Minister on behalf of the national Cabinet, which will, at times, be locked in litigation with provinces, and others, must not disturb the professional relationship between the State Attorney's Office and his clients in other spheres when there are intergovernmental disputes.
When a client wants to initiate or defend or when a client wants particular counsel to be briefed, the client department's wishes override the broad policy. This has been written in, and so we support the Bill.
Bill read a second time.