State Attorney Amendment Bill [B52-2013]: Department response to submissions

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Justice and Correctional Services

28 January 2014
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Department of Justice and Constitutional Development (the Department) presented a summary of the comments that the Department had received on the State Attorney Amendment Bill, together with the Department’s response. The Cape Bar Council (CBC) and the Western Cape Government made essentially the same points. The CBC suggested that clause 2 should specify that removal of the Solicitor-General (SG) from the roll of attorneys would automatically result in termination of the appointment, and the Department agreed that although this was not absolutely necessary, it could be included. CBC was concerned about the reference in clause 2 to the SG being subject to the “control, direction and supervision” of the Minister, suggesting that this might infringe rights between attorney and client, including confidentiality and decisions on whether to pursue a case, and argued that this control should be in relation to administrative matters only. The Department pointed out that this was not a new provision, but that these concerns should be taken into account when the Minister formulated policy, as well as in the directives and standards. It also stressed that the Offices of the State Attorney would have to observe ethics and rules of the Legal Practice Council. The policy would also have to be approved by Cabinet. CBC recommended that the Bill should specify the need for a performance agreement between SG and Minister, but the Department disagreed, since the normal rules and legislation for the public service already provided for this. CBC further suggested, in relation to clause 2(3) that the Minister should not delegate appointments of State Attorneys to the SG, but should do this “in consultation” with the SG. The Department felt that “after consultation” was sufficient. The Department did not agree with the suggestions to revise clauses 2(7) and (8), which CBC seemed to have misread.

The Department did not support the Western Cape Government’s view that the functions of the new Offices of the State Attorney needed to be clarified, although it would remove outdated references. The point was made that State Owned Companies did not use the State Attorney, nor did local government. CBC and Western Cape Government were concerned that the policy referred to in the new section 3(4) should not assume the status of subordinate legislation, and there should be no obligation to follow that policy. The Department reiterated that the policy would have gone through Cabinet for input, but agreed that issues such as briefing and outsourcing would have to be covered in that policy. The Department conceded the need for clarity on the new section 3(4)(b) would have to be clarified, particularly the use of “assign” and “delegate”, and would also correct the new section 6 in regard to stamp duties.  The Department also agreed with the suggestion that the delegation of power by a State Attorney should not divest that person of any power or function. Finally, it was noted that, although the Department and Office of the Chief State Law Adviser disagreed, the Bill had been tagged by the Joint Tagging Mechanism as a section 76 bill.

Members discussed whether the tagging was correct, whether this was a bill envisaged by section 197 of the Constitution, and whether it affected the provinces, but concluded that they could not alter the decision, although amendments were being proposed to the Rules of Parliament on tagging. Members asked for clarity on the position of the Office of the Chief State Law Adviser, which was not covered in the Bill, and were told that although there was a long term vision to include all State legal services under one functionary, this Bill sought only to address the most urgent issues, specifically the current shortcomings of the Office of State Attorney. They asked for written input from the Department on how those problems were being addressed. The DA and ACDP urged that the policy should not interfere with the attorney/client relationship and there should be some flexibility and discretion on briefing of private practitioners, although they also recognised the need to advance previously disadvantaged practitioners, as well as address the high State legal costs. The Department assured the Committee that the Minister would not attempt to control what matters would be initiated or defended, and that the primary purpose was to curtail unnecessary and costly litigation that should have been settled. Members debated whether wording should be inserted that all ethical norms and standards must be adhered to. Members also recognised that the SG and Minister would not exercise day-to-day control over every office and the fact that the SG would not personally undertake attorneys work. The DA suggested that amendments were needed for clause 3(4), and more clarity on the functions and powers. The ACDP felt that the consultation process and tenure must be debated, and suggested that it might be useful to use wording similar to that for the appointment of the National Director of Public Prosecutions. Members would continue to discuss whether there was a need to clarify the wording, to ensure that advocates could still be considered for appointment as SG (if they were re-admitted as attorneys) and whether the term “Solicitor-General” was preferable to other options.

Meeting report

Opening remarks
The Chairperson briefly summarised the work that the Committee still needed to do in this term.

Ms M Smuts (DA) asked why the presentation by Khulumani, on reparations, was on the programme. Dr Khotso de Wee of the Department of Justice and Constitutional Development (the Department) had repeatedly briefed the Committee on this issue, and it appeared that Khulumani simply did not take the point that reparations and human rights violations were addressed by the Truth and Reconciliation Commission (TRC). She felt that their briefing was likely to amount to “flogging the dead horse” of reparations suits abroad, which had already been dealt with, and she felt that, particularly given the other work facing the Committee, it was not necessary to deal with the issue again.

Secondly, she reminded the Chairperson that the 17th, 18th and 19th Constitutional Amendment Bills were still before the Committee, which had heard the preliminary briefings last year. The Department must give its response, and she urged the Committee to then facilitate public hearings, since several commentators wanted to air their views both for and against those bills. She would not allow these to fall by default because matters such as the Khulumani briefing might oust them.

The Chairperson agreed with Ms Smuts on whether Khulumani was likely to persuade the Committee, but said that he had taken the decision to grant the hearing, but would accept the Committee’s decision if it felt he had erred. He suggested that this briefing and engagement could possibly put the matter to rest once and for all. The Committee might wish to make it clear that its position had not changed. There was no intention on his part, or that of anyone else, to delay consideration of the private members’ bills.

Dr M Motshekga (ANC) thought that, for efficient operation of the Committee, the Chairperson should have a discretion whether to allow a briefing. There were different opinions in the Committee, and it was in the interests of democracy that the Committee at least listen. Matters must be exhausted also to the satisfaction of the constituencies that Members served.

Mr S Swart (ACDP) appreciated that the Chairperson did have the discretion to invite groups to speak, but said that there were also other civil society groupings who may wish to brief the Committee, and he was concerned that if requests were granted, this would take up time that was more valuably served on the pending legislation. He suggested that Khulumani could be told that its matter was not urgent and should perhaps rather stand over for a later decision. The legislation and Constitutional amendments were more important.

Ms D Schäfer (DA) suggested that perhaps a list of what was still outstanding could be drawn, and the Committee should firstly deal with those, including her own private member’s bill, before taking new briefings. It was a question of prioritising.

Mr Swart asked if there was yet an indication of the time available for meetings.

The Chairperson responded that it was still uncertain.

Ms C Pilane-Majake (ANC) thought that if the Committee felt it had exhausted the matter, then a letter must be written to the group expressing that.

The Chairperson said that the group had already arranged to attend on the following day, and would be inconvenienced if the Committee were to cancel at this late stage.

Dr Motshekga agreed, and suggested that the Committee accept the legitimate decision of the Chairperson to allow the briefing. However, he also agreed that it would be important to list and prioritise outstanding matters.

State Attorney Amendment Bill: Department of Justice briefing
Ms Ina Botha, State Law Adviser, Department of Justice and Constitutional Development, noted that the Department had prepared a document summarising the written submissions that the Department had received, together with the Department’s response (see attached document for full details).

Clause 1
Ms Botha noted that Clause 1 sought to amend section 1 of the State Attorneys Act (the Act), which spoke to the power of the Minister to establish more than one Office of the State Attorney (OSA). Currently there was one, with different branches. The Cape Bar Council (CBC) agreed with the transformation and move to have offices of equal standing.

Clause 2
Ms Botha outlined that clause 2 contained a number of sub-clauses. The first dealt with the power of the Minister to appoint a Solicitor-General (SG), who would be subject to the control, direction and supervision of the Minister. The CBC expressed its concern on two aspects. Firstly, it pointed out that section 57 of the Attorneys Act presently provided that state attorneys must be entitled to practice, and be members of a law society. The Solicitor-General (SG) would be a member of all regional law societies under the Legal Practice Bill, which highlighted the importance of that person being a practicing attorney. The Bill, however, did not provide for a situation where the SG might be de-registered, and the CBC suggested that another clause was needed to state that the appointment would automatically terminate should the SG lose the right to practise. The Department believed that this was the case anyway, by operation of law, but it would not do any harm to insert this provision like that. There was an example in the new Legal Practice Bill, regulating the term of office of members of the Council, stating that the appointment would end in a number of named instances, and similar wording could be used here.

The second comment from the CBC revolved on the Bill’s statement that the SG would be subject to the control, direction and supervision of the Minister, as it believed that it could infringe rights between attorney and client, including confidentiality and provision of proper advice. The CBC suggested that the Minister’s control should be limited to the administration of the office of the SG, and not extend to matters handled by the SG and decisions, for instance, on when to brief, when to settle and so forth.

Ms Botha pointed out that section 1 of the existing Act established the State Attorneys office also under the control of the Minister, so this was not new. The provision of legal services to government fell within the mandate of the Minister, and therefore the head of that office should be under the control and supervision of the Minister. The Department suggested that no amendment was needed to the Bill, but noted that when the Minister formulated the policy, as well as the directives and standards, the concerns of the CBC should be taken into account and covered. Control and supervision would also have to take into account ethical norms and standards in the attorneys profession, including confidentiality. The State Attorneys would fall under the control and jurisdiction of the Legal Practice Council (the Council) and would have to observe its rules also. The policy would have to be flexible enough to deal with the realities. Furthermore, the proposed new section 3(5) required policy to be made by the Minister and approved by Cabinet, and at that level, different Ministers would be able to give input on these issues.

Ms Botha outlined that the CBC also had a recommendation on clause 2(2), which indicated that the SG was appointed for five years, but that period could be extended further. CBC suggested that any extension of an appointment to such as senior and important position should be subject to rigorous performance scrutiny, and the Bill should include the requirement for a performance agreement. However, the Department did not feel that this was not necessary. The SG would be appointed subject to the laws governing the public service and therefore would have to conclude a performance agreement under those laws, whilst conditions of service as applicable in the public service would already apply.

Clause 2(3) dealt with appointment of persons other than the SG, whom the Minister may appoint, subject to laws governing the public service and after consultation with the SG. These included state attorneys to head up each State Attorney Office, other attorneys (who were admitted and practicing) as well as “any other person” which referred to administrative posts. CBC suggested that the Minister would not be able to attend personally to all appointments, but felt that the SG should have only the power to determine the number and level of support staff, and that the Minister should also deal with appointment of the State Attorneys to head each office, although the SG could have delegated power to appoint other attorneys and administrative staff. CBC also wanted a provision that the appointments of State Attorneys must be done “on the recommendation of ” or “in consultation with” the SG, stating that if the parties could not agree, the Minister’s view would prevail. The Department noted that the Act already provided for this and the “after consultation” provision required the Minister to give serious thought to the views of the SG. There were provisions already about withdrawal of the delegated power, or attaching conditions, and “after consultation” would mean serious consideration, not mere rubber-stamping.

Clause 2 also proposed a new section 2(7), which would require a person to exercise powers and perform functions as the Minister may determine. However, she pointed out that the new section 2(3) related not to the SG, but only to attorneys and other staff. Whilst the CBC suggested that the new section 2(7) was not correctly formulated, it seemed to have misunderstood the position. The new Pretoria office would be established as one of the offices, and the Minister would appoint State Attorneys under the new section 2(3) to head the offices. The current incumbents would be deemed appointed in terms of the new section 2(3A). The Department did not think it necessary to revise the clause.

Ms Botha then said that clause 2(8) was a new provision to state that the SG may not receive any other remuneration or salary other than that under his/her appointment. The CBC was concerned that the Bill did not cover the position of remuneration of the professional staff, other than to state that they should be remunerated. It was not clear whether the Occupation Specific Dispensation (OSD) would continue to apply. The CBC asked whether this subclause could be changed to specify the level of remuneration of professional staff in the Office of State Attorney and the fact that their remuneration would not follow the usual public service scale but would be determined by the Minister, similar to the position in the National Prosecuting Authority (NPA). The Department, however, felt that there was no need to cover this specifically, as it believed the current Act and Bill were sufficient.

The Western Cape government had supported several of the comments made by the CBC.

Clause 3
Ms Botha noted that page 6 onwards dealt with the new sections. The new section 3 dealt with the offices of the State Attorney, but the Western Cape Government suggested that the functions of these offices were not clear. The existing section 3 of the Act stated that the State Attorney would assist all government departments, and (although it contained outdated information) also referred to Railways and Harbours and other state bodies. The Department did not feel that there was any need to supplement this.

She noted that the Committee had previously suggested that the references to “Parliamentary Agent” must be deleted, which the Department would still do.

The Department did agreed with the suggestion of the Western Cape Government on a technical point in relation to the new section 3(2).

Ms Botha returned to the point about the “Railways and Harbours”, and said that this raised two points – the first in relation to succession in title, and the second whether the State Attorney still rendered assistance to para-statals and State Owned Companies (SOCs).

Ms Kalay Pillay, Deputy Director General, Department of Justice and Constitutional Development, noted that the SOCs briefed their own attorneys.

Mr Swart asked if the State Attorney acted for the Road Accident Fund (RAF), which fell under the Department of Transport.

Ms Pillay said she would check whether it could, although in practice, both the RAF and the Unemployment Insurance Fund usually briefed own Counsel.

Mr Swart suggested that the Committee flag this issue.

Ms Botha noted that a new subsection 3(4) related to the power of the Minister to determine policy, which must be done in consultation with the SG. This may include the coordination and management of all litigation involving the State, the briefing of advocates, outsourcing of legal work, initiating, defending and opposing cases, and implementing dispute resolution mechanisms. This policy “must be observed” by all persons appointed in the offices of the State Attorney. CBC was concerned about this policy, and suggested that it should not in fact assume the power of subordinate legislation. It suggested that the Minister may issue policy, but nobody should actually be obliged to follow it, merely to take it into consideration. CBC was concerned that the policy might cover matters such as briefing of advocates, outsourcing of legal work, or implementing resolutions that might not in fact be in the best interests of the clients of the OSA. The Western Cape Government expressed similar concerns. The Department, however, held the view that the Bill said that policy must go through Cabinet, where other ministers would give input. When that policy was determined, the Minister must be careful to deal with issues such as briefing and outsourcing.

The Western Cape Government wanted the Bill to clarify the decision-making powers of the SG and State Attorneys. Its submission was not entirely clear, but the Department believed that section 3 regulated all issues satisfactorily and other clauses, including clause 4, made it clear what the power or authority of the SG would be.

Clause 4: New section 3A
Ms Botha explained that the new section 3A(4)(b) said that the SG would be the executive officer of all offices of the State Attorney and must issue directives and standards regarding the functions referred to in that section. The Western Cape Government suggested that this was problematic, because later in the Bill it was said that the SG may delegated certain functions to certain persons, such as a State Attorney (or another attorney). The Department had initially used both “delegate” and “assign” but it had been pointed out that these words did not have the same meaning, and it would deal with that.

Clause 5: amendments to section 6
Ms Botha noted that the Western Cape Government had said that the Stamp Duties Act had been repealed and the references to it must therefore be deleted. The new section 6(2) said that fees and costs in a motion application should include any amounts of any stamp duty or fee of office which was payable and borne by the State. She would clarify whether any payments were in fact necessary.

Later, Ms D Schäfer (DA) noted that apparently no stamp duty was payable on Motion applications, and the Department confirmed that it would attend to the necessary changes.

Clause 7: insertion of new section 8(3)
Ms Botha note that the proposed new section 8(3) said that the State Attorney may delegate any power to any person employed in the office of the State Attorney. The Western Cape Government suggested that words should be added to note that the State Attorney would not be divested of any power or function by making the delegation. The Department agreed that it may be prudent to add this.

The Western Cape Government suggested that this was a Bill as envisaged in section 197 of the Constitution, and should thus be tagged as a section 76 Bill. The Joint Tagging Mechanism (JTM) had agreed that this was to be tagged as a section 76 Bill. However, the Department, supported by an opinion from the Office of the Chief State Law Adviser (OCSLA), did not agree with the tagging, and did not think that this was a bill envisaged under section 197.

Mr Mongameli Kweta, State Law Adviser, Office of the Chief State Law Adviser, said that the crux of the argument around the tagging was whether this Bill was one falling under the scope of section 197 of the Constitution. This section referred to public service legislation but he pointed out that Parliament had already enacted the Public Services Act of 1994, to cater for the necessary requirements, and that Act itself was explicit in noting that it was framed under this section. The current Bill, however, was concerned with the appointment of the SG, and that appointment would be subject to the laws governing the public service. However, OSA was a component of the Department. The Bill stated that the Minister would make appointments and delegate appointments to the SG, but did not specify about remuneration or conditions of employment. Similar examples in other legislation had not been considered to fall within the ambit of section 197. For this reason, OCSLA thought the Bill should have been tagged as a section 75 bill.

Ms Schäfer agreed with OCSLA that this Bill did not fall within the ambit of section 197 of the Constitution, but was concerned about clause 3, which allowed the Minister to determine policy on matters such as briefing. She had a problem with this provision, as such a determination might be seen as interfering in the powers of provinces, and may not be in the interests of a province. However, she felt that the Bill, by reason of the provincial interests, should be a section 76 bill.

Dr Motshekga agreed with OCSLA. In answer to Ms Schäfer, he said that the powers of the Minister would be subject to constitutional imperatives. He reminded the Committee of concerns that departments tended to brief only the well-established white firms, with the result that young, previously disadvantaged (PDI) black attorneys and advocates did not get exposure and sufficient experience, with the knock-on effect that they would not be nominated as judges. Discrimination was still happening subtly in the legal profession. Affirmative action, a constitutional imperative, should be addressed, and this would only be done if the Minister determined the policy and if OSA were obliged to follow it. He did not agree that there was a risk of the Minister interfering in the powers of the provinces, saying that the federal system did not apply, that there were concurrent and exclusive powers, but the Minister was accountable to the government. Pockets of power would create a problem. At some stage, there was interface between law and politics, as seen with the textbook saga in Limpopo, when the public of Limpopo demanded explanations from the national Minister of Basic Education on what had gone wrong. Dr Motshekga was also concerned that there seemed to be “some convergence or collusion” between the CBC and Western Cape Government, to try to draw powers away from the Minister to entrench federalism.

Mr Swart said that the Department, on page 3, had addressed issues of law, but there were many instances where a province might litigate against national government. The Department had pointed out that the control and supervision must take into account the ethical standards in the profession. There was a need to be cautious. Whilst control by the Minister was already noted in the current Act, it would be important to check how policy had evolved over the years. He cited an instance where the State Attorney was briefed in a local government matter, so the Western Cape Government had to brief private attorneys, to avoid a conflict of interest. This was an important point and had to be fleshed out. He did not agree that there was anything collusive about the concerns, and said that there were day-to-day issues, including to what degree centralised power might dictate whether the State Attorney could act for a province. The local government sphere tended to use private attorneys, and it was clear that the OSA did not have the capacity to act for every municipality. However, this also raised cost implications. These were complex issues.

Ms Smuts asked that all suggestions of “collusion” be set aside. She herself had sent the CBC submission to the Western Cape, to get its comments, and suggested that it should put its position to the Committee, in order to contribute to the process. The most interesting issue was inter-governmental disputes. The main difficulty with the Bill was around control, supervision and policy. She did not think that it was sufficient to say that the Minister already had control, and said that the policy of the current government on state legal services must also be taken into account. The Parliamentary Research Unit document (see attached opinion) had noted that the vision for state legal services included the fact that ideally state legal services would not only defend litigation against departments, but also initiate litigation on behalf of the poor. More was envisaged than was in the Act at present. The Committee would have to check the exact wording of the current section 3, and how it circumscribed function. She further noted that she would like some clarity on OCSLA’s position, which was not addressed in this Bill, although OCSLA was part of the State’s legal services.

Dr Motshekga responded to Ms Smuts that when he used the term “collusion” he had qualified it, by saying that “it would seem…” because there was such convergence between the two opinions.

Ms Smuts also wanted to go back to the discussions on clause 2, and said that there should be no interference in the attorney/client relationship. Giving more opportunity to young black graduates was part of the goal, and the Director General of the Department had sat with attorneys to monitor their performance in court, and this was a good avenue to increase work for black and women advocates. However, the policy must not be so rigid as to remove the discretion of the SG to brief whomever s/he wanted, and even more so in the case of inter-governmental sphere disputes. Some proposals had been made, including that clause 2(4) required not that the policy be “observed” but “considered”. Another option could be to put in a proviso emphasising that all ethical norms and standards must be adhered to. It was not enough to say that this policy must serve before Cabinet, as it must also serve before provincial Cabinets and before every municipal council. Finally, Ms Smuts agreed with Ms Schäfer that this would be correctly tagged as a section 76 bill because of its impact on the provinces.

Ms Schäfer said that the Committee was well aware that South Africa did not have a federal system, and emphasised that the tagging also must take into account the provincial impact.

Dr Motshekga agreed with the point made by the Department that the “control” of the Minister should refer to administration. However, this led to the point that it was not desirable to have state officials in nine provinces without anyone directing them, and the Department should not be fragmented. Policy was a political matter, which was why the Minister had to submit the policy proposal to Cabinet, an independent sphere of government, and it was necessary to guard against stripping that sphere of its powers. He believed that the fear that provinces may bring cases against national government was unfounded. The Minister would not decide what the State Attorney should do, and the control would relate to administration, not to what cases should be pursued. He also thought that the Minister might not direct provinces as to what cases they may accept, and did not agree that it would thus impact on provinces.

The Chairperson noted that there was merit in all of the arguments advanced and reminded the Committee that he had raised his concerns on the process of tagging last year. Although all members were supposed to read the ATCs, most did not have time to do so. During deliberations on the Legal Practice Bill, a Parliamentary Legal Adviser had informed the Committee that this bill had been tagged as a section 76 bill, but when he wrote to the Presiding Officer to question this, he was told that the time for objection had passed. He raised the point then that the mechanism for tagging was not working well, that committees should be informed of the recommendations of the Parliamentary Legal Advisers to the Joint Tagging Mechanism (JTM). A recommendation on this Bill had at least been furnished in writing so that the JTM’s argument could be understood. The ANC would be proposing, to the relevant sub-Committee, that the Parliamentary Rules be amended to allow committees the opportunity to make input to the JTM, which would a written outline of the JTM’s reasoning, rather than the current position of the decision being announced without any motivation. However, on the current Bill, the points raised by the Committee had merit but did not alter the position that the JTM had already decided, so all arguments were moot.

Dr Motshekga wanted to place on record that he agreed with the attempts to amend the Rules. The law of consultation meant that at times, OCSLA and Parliamentary Legal Advisers may not agree, and politicians may be obliged to abide by matters on which they disagreed with, but they were accountable to the public. The current Rules essentially meant that MPs were being run by administrators.

The Chairperson noted that the Committee heard the points raised by Mr Kweta but was not in a position to say that OCSLA’s opinion was right or wrong. He noted, however, that if the SG was providing services to provincial departments, there was an impact on provinces. The JTM took recommendations from the Parliamentary Legal Advisers but was not bound by them; the decision was announced in the ATC, which all Members should read.

Technical point
Ms Botha said that there was another small, technical comment. Reference was made continuously in the Bill to “the Minister of Justice and Constitutional Development”. There had been a suggestion to insert a definition, either in section 1 or at the end of the Bill, and then merely to refer to “the Minister”. Alternatively, this essentially technical point could stand over until later. She reminded Members that at this stage it was the intention of the Department only to make a few amendments. Later on, the Department would be proposing more, which would also implement the transformation of the State legal services, which may also go further than the State Attorneys, and address, for instance, OCSLA’s position.

Mr Kweta noted that Ms Smuts was referring to the Constitutional Court judgment in the Tongwana matter, in relation to the tagging. This did say that a Bill may be classified as a section 76 Bill, if it dealt with a matter listed in Schedule 4, and if it affected provinces in substantial measure. Other approaches were set out in section 76(3), listing other matters to be taken into account. However, he reiterated that the OCSLA was of the view that this was not legislation dealt with under section 197.

Mr Swart pointed out that when committees considered legislation, they often took into account the broader context of the problems. He wondered if it might not be wise to get an update from the Department as to what had been done to address the known problems in the OSA in Pretoria (the only office dealt with under the current Act), such as the prevalence of default judgments, costs de bonis propriis, and investigations of the Head of the office. He also indicated that the Research Unit had pointed out, rightly, that this office was hugely under-resourced, so that its staff could not be blamed for their inability to cope with all matters in the same way that a private law firm could. Another point related to litigation costs of the State, and whilst this was being addressed broadly by government by a policy framework, he felt it could be useful to get the input from the Director General of the Department as to what had been done so far. It was important to remember that the SG would not only head the OSAs, but all State legal services, and it would be impossible for the SG to exercise day-to-day management of all offices. Up to now, the Pretoria office had had this role, but it had not worked.

Ms Smuts asked if Mr Swart was asking for a briefing from the Department on these issues now, or asking state attorneys to make individual submissions on the Bill (although they did all fall under the Department). She did not think it was possible to go deeply into all the issues.

Mr Swart agreed and said that objective assessment of the performance of the OSA could not be dealt with immediately, but he still felt that a short update from the Director General would be useful, because the Bill dealt with the powers of the SG overall. There was a crisis situation and one judgment had actually been referred to the Committee.

Ms Pillay explained that the SG would be appointed in terms of the State Attorneys Act and would take charge of the OSAs. The vision for legal services was for the long term, and eventually all state legal services would fall under one component. The reason why this amendment was sought at the moment was that the OSA was in need of urgent intervention, because of the negative judgments and other issues. She noted that in the Pretoria office, disciplinary proceedings were instituted against the former Head, who had then resigned, and had since passed away. Although the current Act suggested that the Pretoria OSA was “in charge of” the others, in practice other State Attorneys had been appointed at the same rank, and therefore could not be said to be reporting to the Pretoria State Attorney, whose role had diminished by natural developments in the provinces. She agreed that whilst there was a long-term vision that all State legal services components, including OCSLA, would fall under one functionary, the SG was being appointed primarily to fix issues in the OSA now.

Ms Pillay then commented on Members’ statements around the policy. Matters such as briefing of advocates did need to be covered in a formal policy, in order to promote and assist with transformation. Although some offices were briefing PDIs, they were generally not receiving enough substantial work, and the implementation of the policy would need to be addressed. Outsourcing of legal work raised two issues. She agreed that rising legal costs to the State were a major problem; the costs for briefing of private advocates by the State Attorney alone was close to R1 billion last year and private attorneys’ firms may also have been briefed. She confirmed that local government did tend to brief private firms. The question was really whether a department should be able to brief legal practitioners of its own choice, and if so, at what cost. The intention was not that the Minister should control what matters could be initiated or defended. The State Attorney rarely initiated litigation, although it could do so under the current Act. In some offices, attorneys handled about 400 files each, and that was a huge workload, even for well-resourced attorneys’ firms. She added that, particularly against the Departments of Police, Health and Home Affairs and Social Security Agency of South Africa, there was an unfortunate tendency by the public to institute “opportunistic cases” and she said that the OSAs should ideally be far more active in ensuring that such cases were detected and resolved far more quickly, before major costs were incurred. Many judgments against the State arose from medical negligence cases. In the different provinces there was divergence and lack of coordination in how these cases were handled. The policy should thus also cover proper coordination. Implementing alternative dispute resolution procedures would result in a decrease of costs to the State. As soon as a summons was received, the OSA should be able to investigate, immediately, whether the cases should be settled rather than defended.

Mr Swart added that the workload was very heavy and this in practice resulted in the State Attorneys only giving proper attention to the matters when they became most urgent, when they were set down for hearing. The same applied to RAF, and costs would already have escalated before any consideration was given to whether it was more appropriate to settle, whereas this decision should be taken as soon as the summons was issued, when the costs were low.

Ms Schäfer thought that the Bill must not specify that every State department would be obliged to use the OSA, if its workload was already so high, but it was important to allow for discretion.

The Chairperson said that even when the discretion was exercised, it could lead to problems, For instance, the Department of Home Affairs had recently decided that it wanted to appoint a particular private  firm, but the Office of the State Attorney, although it had no intention of dealing with the matter itself, had asked for another firm to be appointed, at a lower cost.

Mr Swart agreed that the Public Finance Management Act would also apply; a particular brief could be irregular and wasteful expenditure as well. These kinds of issues must be fleshed out in the policy.

The Chairperson confirmed that this Bill must be seen as a first step in dealing with the problems around state litigation.

Mr Swart asked if the Department would be briefing the Committee, following the budget process.

Ms Christine Silkstone, Content Advisor to the Committee, said that she was not sure if that would be on the programme. An alternative might be to ask the Department to give the update suggested by Mr Swart during the quarterly report briefing.

The Chairperson said that no plenaries would be held until after the State of the Nation Address.

Ms Smuts, supported by the Chairperson, suggested that perhaps a written update from the Department might be acceptable, and the Committee agreed that a document should be requested, listing the challenges, an update on the negative cases, and the steps taken.

Preliminary points raised by the Committee
Ms Smuts said that she would like to see some amendments to clause 3. She thought that the key point was to get a better formulation on line 22 of clause 3(4), to recognise the important points about the discretion of the client and the ethics. In addition, the Committee should consider the function of the SG, which had not altered, so the Minister may not in fact require any new powers, as this would follow in the next stage of the process.

Dr Motshekga reiterated his view that the powers of the independent sphere of government should not be diminished, and the power of the Executive should not be reduced. He could not think of better wording than “control, direct and supervise”.

The Chairperson pointed out that from a practical point of view it was not possible for the Minister to do this on a day-to-day basis.

Dr Motshekga agreed, and said that it should not be trivialized as the OSA would be staffed by professionals who would understand the law and ethics.

Mr Swart said the Research Unit document made the point that OSA would be dealing with civil matters for the State, just as the NPA dealt with criminal matters, and he wondered if the Committee should consider an appointment process similar to that for the National Director of Public Prosecutions (NDPP) and use wording along the lines of giving due regard to his or experience and integrity. He also noted that the tenure of the SG was stated as five years, but with an extension for “any further” periods – perhaps this too should be qualified with a reference to another five years. Finally, aspects of “in consultation” or “after consultation” would need to be debated, during the debate on control and policy. He commented that the Research Unit’s submission had been very helpful.

Mr J Sibanyoni (ANC) questioned what steps needed now to be taken.

The Chairperson said that it would be desirable to try to finalise this Bill as soon as possible, although it would only be able to be debated once plenaries were held, after the State of the Nation Address. It was unfortunate that the Committee was not advised of the section 76 tagging earlier, for it left the NCOP with only a short time to finalise the Bill.

Dr Motshekga noted that Mr Swart said he was open to discussion on “in” or “after” consultation, but thought the Committee had already addressed that point. “In consultation” suggested an element of co-governance and elevated officials to the levels of Minister, as well as eliminating the Minister’s role in deadlock-breaking. He suggested that someone should be above both the SG and Minister to set direction. He pleaded that co-governance should be avoided, as it would lead to paralysis. 

Mr S Holomisa (ANC) asked why the SG should be admitted as an attorney and not as an advocate, particularly if that person might previously have acted as an attorney and thus be familiar with notarial and conveyancing work.

Ms Pillay answered that the reasoning was that the head of a department of attorneys should be an attorney and familiar with the requirements of a large attorneys’ practice, which was very different from the one-person advocates’ office.

Dr Motshekga said that the profession was already moving to “some kind of fusion” because rights of appearance in the High Court were extended to attorneys.

Mr Holomisa noted that a State Attorney must also be “qualified” to practice as attorney, notary and conveyancer, but reiterated that an SG previously practising as a attorney should not be disqualified from being appointed. .

Dr Motshekga pointed out that he himself had served articles, was admitted as an attorney, and practiced for ten years before moving to the Bar. In terms of this Bill, he would not be considered for this post.

Ms Botha said that clause 2(1) currently referred to “admitted and entitled”.

Dr Motshekga suggested that perhaps better wording might be “admitted as a practising lawyer” (which could be defined) or “entitled to be admitted”.

Ms Botha explained that in the earlier drafting stages, there had been discussion on whether the SG was doing the work of an attorney, but the drafters had received instructions that the Bill should be explicit that the SG would never be required to actually do the work of an attorney, such as attending court. Clause 4, inserting a new section 3A, therefore said that the SG was the “executive officer” of all OSAs. This followed similar wording to that used for the Master, in the Administration of Estates Act. At one stage, the Department considered simply leaving section 1 to have only one OSA, but this was changed later, and it was envisaged that the SG would “manage”, rather than being involved in the day-to-day work. One of the provisions in the Bill specified that OSA would be able to charge for undertaking attorneys’ work, but perhaps the reference to the SG needed to be deleted from that clause, as that person would not be doing attorneys’ work.

Dr Motshekga agreed that the SG should not handle any cases, and that made it important not to exclude advocates who had previously been attorneys.

Ms Pillay said that a person “entitled to practice as an attorney” would cover those who had passed the attorneys’ admission examination and been admitted at any point. An advocate would simply need to remove his or her name voluntarily from the roll of advocates, and re-register as an attorney, which was done by a simple court application.

Mr Swart noted that the OSA was in fact, at present, the only institution in which a person could act as attorney and state advocate simultaneously. He noted that Adv Gaum was admitted as an advocate whilst working for the OSA. That position would change when the Legal Practice Bill was in force. He also noted that in the past, no attorney was able to be appointed to the office of NDPP. He reiterated that a reference to due experience, conscientiousness and management might cover that point.

Ms Botha said that the issue of the role of the SG vis-à-vis that of the NDPP must also be considered. The NDPP was involved in the decision making process whether a prosecution should be instituted or not, and could make that call in high profile cases where the Deputy Director of Public Prosecutions could not be involved. It was possible to include something about executive power, but it might affect that issue.

Mr Swart asked if it was envisaged that the SG would be monitoring cases on a daily basis.

Ms Schäfer wanted to raise another point on clause 2(1). That stated that the SG would be subject to the control, direction and supervision of the Minister. However, clause 3A required that SG to exercise control, direction and supervision over all offices of the State Attorney, which ultimately meant that the Minister would control everything. She thought clause 3(4) was problematic also, querying what would happen if the Minister stated that certain types of matters may not be defended by the State.

Ms Smuts agreed, and said this was particularly important in inter-governmental disputes.

Ms Schäfer suggested that perhaps references to initiating or defending matters should be removed, so that this was not included in the policy.

Ms Smuts responded that this would not be possible but perhaps it could be qualified.

The Chairperson noted that the  policy would be tabled in Parliament, but not necessarily for approval.

Ms Smuts followed up on the comparison with the NPA, and Ms Botha’s statement that sometimes the NDPP would decide whether to prosecute. That was not quite what the Act said; the NDPP could determine whether a provincial Director had followed policy, through a certain process, so that although there was the power to review, this differed from taking a decision.

Ms Botha said that her remarks were in the context of a review; the NDPP could set aside a decision of a Deputy, but only after the prescribed process. Although she was not very well acquainted with the Legal Practice Bill, she reminded Members that the SG would also be subject to the Legal Practice Council.

The Chairperson clarified that the term “legal practitioner” was used in that Bill, rather than “attorney” and “advocate”, and asked if an admitted advocate would be excluded from appointment as SG.

Mr Swart clarified that the Advocates Act stated that State Attorneys only would not have to be removed from the roll of advocates to work in the OSA. However, he pointed out also that the Legal Practice Bill had required that heads of legal firms must be practising attorneys, not members of another profession. That point may need to be clarified here, and the different pieces of legislation checked for consistency.

The Chairperson asked the Department to work on those clauses.

Dr Motshekga felt that all motivations from the Department had been good, and endorsed the position taken. He agreed that the Department should now attend to the drafting matters raised by Members.

The Chairperson asked the Department to notify the Committee Secretary when it was ready to re-present new suggested wording.

Mr Holomisa asked if the Committee had discussed the term “Solicitor-General”, whether it was apposite to a system that did not use the term “solicitor” and pointed out that this term was not defined.

Ms Smuts explained that there had been attempts to avoid the connotations attached to the old office of “Attorney-General”.

Mr Swart asked if there was a post of Chief Litigation Officer, as referred to in the Memorandum of Objects.

Ms Pillay said that this was a post, but it was not created in terms of any legislation, although it was a Deputy Director-General level, and may be phased out. She agreed that the term “Solicitor-General” was largely symbolic as the Department was seeking to avoid connotations from “Attorney-General”.

Ms Smuts wondered if people now remembered the old titles and cited several others that had fallen into disuse.

The Chairperson wondered if “Chief State Litigator” might be appropriate.

Dr Motshekga thought this might be too limiting; the SG references could perhaps remain.

Mr Holomisa suggested that Parliament should be able, when adopting any name, to explain what it meant, and perhaps the title “Attorney-General” could be used again in a different context.

The Chairperson said that the matter was not closed for debate.

The meeting was adjourned.


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