The Sidelined State Attorney

In recent legal interventions involving the unlawful suspension of the National Head of the Hawks, the Helen Suzman Foundation became aware that the Minister of Police had, at the expense of taxpayers, sought the help of a large private firm. The State Attorney is the Office charged with the functions of dealing with State litigation. This revelation leaves one wondering what the State Attorney is doing.

In recent legal interventions involving the unlawful suspension of the National Head of the Hawks, the Helen Suzman Foundation (“HSF”) became aware that the Minister of Police had, at the expense of taxpayers, sought the help of a large private firm. As the matter has progressed, the pleadings have gone from simply citing the State Attorney as the correspondent attorney to leaving the office out of the proceedings entirely. In other words the State Attorney has been sidelined. The result is that two entities are being paid to do the State Attorney’s work. The second entity is no doubt being paid far more than a State Attorney, and is certainly aware of its client’s deep pockets.

The Appropriation of State Funds

In 1957 the South African Government created the Office of the State Attorney that would on a national and provincial level assist in [1]:
  • the drafting and managing of contracts on behalf of the State;  
  • the handling of criminal and civil litigation cases instituted against State officials and committed by means of acts or omissions while executing their official duties;
  • the handing of applications from qualifying personnel for admission as advocates to the High Court;
  • the handling of applications for admission as a practicing attorney;
  • the regulation and overseeing of the conduct of private attorneys operating under the State Attorney Act.

The State Attorney Act 56 of 1957 (“the Act”) states that “[t]he functions of the office of the State Attorney and of its branches shall be the performance in any court…of such work on behalf of the is by law, practice or custom performed by attorneys, notaries and conveyancers…”. 

It is worth mentioning that the State Attorney has nothing to do with the Attorney General. The latter was renamed the National Director of Public Prosecutions and is the Head of the National Prosecuting Authority.

The Appropriation of Even More State Funds

In 2013 Parliament, as a result of the Policy Framework for the Transformation of the State’s Legal Services, produced an Amendment Bill. The Minister of Justice explained that the aim was to “develop legal skills in the private (sic) sector through the equitable outsourcing of legal work to previously disadvantaged individuals in order to redress the imbalance of past discriminatory practices in the legal profession and the state”[2]. A further priority involved consolidating and integrating services within the department with the goal of managing litigation.

The Amendment has been promulgated (“Amendment Act”), but has yet to receive a commencement date. The Amendment Act seeks to substitute, inter alia, sections 1 to 3 of the Act. The new sections will be:
  1. Establishment of offices of State Attorney;
  2. Appointment of Solicitor-General, State Attorneys and other persons in offices of State Attorney and termination of appointment;
  3. Functions of offices of State Attorney.

As a result of the Amendment Act, the Solicitor-General, a new position, will become responsible for the drafting and implementation of policy concerning the functions of state attorneys. The content of this new policy is unknown. Furthermore, the policy implications are so far reaching that the content has the potential to be impractical or incomplete.

The Amendment Act simply requires that there be consultation between the Minister of Justice and the Solicitor-General, in consultation with the State Attorneys, regarding policy relating to, inter alia, briefing of advocates and outsourcing of legal work. This would then need to be approved by Cabinet and tabled in parliament by the Minister of Justice.

Big Law trading as State Attorney

To appear before of a court an attorney needs to be within a specified distance of the court. If the attorney does not practise within this distance he or she is precluded from practising in that court’s jurisdiction. In this event the attorney would use a correspondent attorney. A correspondent attorney performs administrative tasks such as service and filing. This arrangement is signified on legal documents by the “Care of” abbreviated as “C/O” before the correspondent attorney’s details. Section 8 of the Act provides that the State Attorney may employ correspondents.

At no point does the Act refer to the wholesale outsourcing of legal work. The reasoning is simple: the State Attorney is an institution funded by taxes. The remuneration that its employees receive is in respect of work done in their capacity as members of the office; and that outsourcing would result in the public purse being double billed. The Amendment Act will allow for the wholesale outsourcing of legal work historically performed by the State Attorney.

In our legal interventions against the Minister, the HSF’s attorneys and counsel sought to recover disbursements i.e. the operational costs related to photocopying and the like. The Minister’s legal fees are likely to run into many hundreds of thousands of rands for six appearances at court. Some of these appearances were necessitated by the poor preparation of the Minister’s legal team. The preparation and consultation costs (that will be written off against the public purse) are a secret shared by the Minister, his legal team and their correspondents.  

Paying More for Less

In September 2014, Judge Bertelsmann stated that courts could not function effectively without the professional support of the state’s attorneys and advocates. He noted that [3]:
“The state attorney is involved in most of the litigation affecting the state, but it often gets punitive costs orders against it, resulting from poor service delivery by the office of the state attorney.
The taxpayers are the ones who have to fork out.” 
We are now replacing the ill-equipped and the ill-prepared with the fee-driven and the cost uncontained. In the end taxpayers will still “fork out” but the bill will be greater, as more fingers enter the public purse, as the state attorney slowly loses more capacity, independence and in the long run, no doubt, its integrity.