Turnaround strategy of State Attorney Office: Solicitor General briefing

This premium content has been made freely available

Justice and Correctional Services

16 February 2021
Chairperson: Mr G Magwanishe (ANC)
Share this page:

Meeting Summary

The Solicitor General (SG) highlighted the five main policy areas across which the turnaround strategy of the Offices of the State Attorney have been planned. He also outlined the extent and nature of the challenges he is facing, supplementing a short slide presentation with a more comprehensive written report for Members.

[The Minister of Justice and Correctional Services, appointed Mr Fhedzisani Pandelani to act as a Solicitor General for a period of 24 months from 1 April 2020. This step followed the long-delayed commencement of the State Attorney Amendment Act of 2014 as of 7 February 2020. The amendment act established a new statutory officer in the form of a Solicitor General, who in turn co-ordinates all state attorney offices. In essence, the amendment act creates a framework for government to transform its litigation strategy.]

The Committee enquired into the short duration of the Solicitor General’s appointment, particularly in the light of the five year tenure provided for in the new legislation. Members asked if he would be willing to consider a second term. The Committee was concerned about reports of corruption from within the Offices of the State Attorney as well as a poor service delivery track record experienced by client departments who rely on the state attorney offices when they are involved in litigation or providing legal advice, and have to brief advocates or instruct attorneys. Members wanted to know what support was available from the State Information Technology Agency as well as how its Human Resources functions work in the advertising of vacancies for Heads of Office and the relevant timelines in that process.  There were concerns that the Solicitor General’s responsibility to render legal services to all 302 state owned enterprises would be more than the offices of the state attorney could realistically manage. The Committee highlighted the need to focus on rebranding and providing good services to the sister departments that were currently serviced. Reports of client departments who did not pay the disbursements of the state attorney were also a major topic of discussion. The Committee asked for the reasons for this.

Members asked for details on why the contingent liability of the state was increasing as well as plans to implement a standardised fees scale for private legal practitioners to limit overcharging. The levels of attrition within the staff of the Office of the State Attorney were discussed as well as the reasons why it was so hard to attract high calibre attorneys as office heads.

Overall, the Committee was pleased with the work of the Solicitor General and the turnaround plan, undertaking to schedule briefings on the individual five policies as they became certified. The Committee also undertook to have more regular input from the Office of the State Attorney on how it was managing in its attempts to be better resourced.

Meeting report

The Chairperson said that the briefing would be from the Office of the Solicitor General (SG) who would be presenting on the turnaround plan of the Office of the State Attorney (OSA). He hoped the meeting would be finished by 13:00 so that Members could attend to the debate. He asked the SG to begin. [Last year, the Minister of Justice and Correctional Services, appointed Mr Fhedzisani Pandelani to act as a Solicitor General for a period of 24 months from 2 April 2020.]

Mr Fhedzisani Pandelani, SG, thanked the Committee for the welcome. All the Heads of State Attorney Offices across the country were present on the meeting along with their support staff. He had invited them to the meeting so that they can answer to the Committee if it has questions about their specific offices. As he understood the purpose of the meeting, it was to speak about the implementation of the State Attorney Amendment Act (SAAA), with particular emphasis on the turnaround strategy and milestones for the OSA.

He began by saying that he had never been a public servant before his appointment. The Act that enables the appointment of the SG is the State Attorney Amendment Act 13 of 2014 (SAAA). The SG had been in this position for a period of 11 months having been appointed on 16 March 2020. As an outsider, the mandate given to the SG was to implement the provisions of the SAAA. Before beginning the presentation, he thought it would be helpful to begin by doing a deep dive into what he found in the space which he was in. He saw it fit to prepare a supplementary report in order to take the Committee into his confidence. He was not going to interrogate the report, however, it was for information purposes. It is in fact, an extraction of what constitutes his mid-term report to the executive authority. However, it was important for him to also take the Committee into his confidence, hence, the supplementary report seems to be a booklet in itself. He had tried to highlight the state of affairs as he found it up until the present date. He then proceeded to the turnaround strategy presentation.

Briefing by the Solicitor General on turnaround strategy of the offices of the State Attorney

It is common cause that the State Attorney Act 56 of 1957 has never been amended before. What has happened amounts to cosmetic changes with the incorporation of the Bantustans with no substantive amendment to the Act. The only amendment came about with the 2014 Act. However, there was a six- or seven-year delay in the proclamation of that Act. He highlighted the six- or seven-year period for the purpose of highlighting that the state lost an opportunity to turnaround the fortunes of both the OSA and the state itself.

He would not deal with the functions of the OSA as it was common cause as in the Act. The SAAA envisages that there should be 13 OSA offices across the country, including the previous office, which was the centre, in Pretoria. The OSA has now got 13 offices country wide. The essence of creating 13 offices is that state attorneys cannot be found to be rudderless. A problem arose where those branches were not able to implement the policies and procedures that were there.

The appointment of the SG in terms of the SAAA is not different to the analogy of a pilot that is parachuted to save an aeroplane that is airborne but in peril. All that it has onboard are passengers and the likelihood is that it was going to crash. This is how he wanted to look at the situation at the OSA as he found it. It was laden with a lot of challenges and the SG had to choose what to offload from the plane otherwise it would likely perish or the state would not meaningfully deal with issues of a legal nature. People in the aviation field would know that the first thing to do is dumping excess fuel. Once you are parachuted, there are not many options, as a pilot, you either crash with those that are on board or alternatively, you save everybody onboard. This is how he would like to look at the state of affairs of the OSA.

He found that there were no policies in relation to the management of state legal services [meaning the management of lawsuits and transactions for and against the state. OSA may brief private legal professionals to provide specialist drafting and advocacy skills. State attorneys act in service of the state and represent the State and State Departments (national and provincial)]

Before dealing with the issues, he wanted to draw the Committee's attention to section 3(4) of the SAAA, which he felt was very instructive as it outlines the need for policies in the space. If it is accepted that there were no policies and that it was a rudderless institution, then even the head, which was Pretoria before the creation of the other twelve offices, did not have a substantive Head of Office. This meant that there were Acting Heads of Office throughout the country, including those that were in what was called branch offices. In the implementation of the SAAA and as part of his mandate, he was required to appoint Heads of Office throughout the country. There were two Heads of Office that existed in terms of the SAAA, and he was pleased to announce that insofar as the capacitation of OSA branches to date, six Heads of Office have been appointed, in addition to the existing two, out of the thirteen. OSA was not able to find a fit and proper person for East London, therefore five offices are going to be capacitated before the end of the first quarter of financial year 2021/2022. He envisaged that the capacitation process for all offices of the OSA would be completed by May or June 2021, or even earlier.

These were the challenges which the new SG decided to prioritise (as summarised on slide five of the presentation):

- Policy and or legislation gap

- Structure, leadership, capacity and Occupation Specific Dispensation (OSD)

- Infrastructure

- High cost of litigation

- Mandate of OSA

The OSA has managed to complete its five policies, ahead of the timelines given to him. As SG, he has been in this role for 11 months with a 24-month contract. One could have tried to stagger the policy implementation over 24 months, however, the OSA has tried to ramp up its policies because unless these are ramped up, those who consume from the state are unable to do that. More often than not, there is resistance to complying with the lawful requests by OSAs.

Policy and or legislation gap

More often than not, the SG observes that irregular expenses are incurred and that client departments have established within their own departments, what can be called bodies that are intended to constitute databases for which they are procuring legal services without following the normal processes. [This sort or procedure] is against the provisions of the Public Finance Management Act (PFMA). The audit [of these transactions] happens in the hands of the state attorneys. Invariably, state attorneys—at least before he took up his role as SG—were merely rubber-stamping instructions that came from client departments. Therefore, when the money needed to be recuperated, as the baseline budget for payment of legal practitioners came from the Department of Justice and Constitutional Development (DoJ&CD), there was also resistance in that regard. Client departments sometimes say that while they appreciate the services rendered, the OSA had not followed normal processes. While state attorneys cannot allow the state to collapse, state attorneys often find that the department to whom services have been rendered will indicate that they will not reimburse the OSA based on the argument that normal processes were not followed.

It is common cause that state attorneys do not charge a fee to client departments. He wanted to repeat in all forums that state attorneys, are in fact state attorneys and do not belong in the strictest sense, to the DoJ&CD. As with the SG, they have cross-cutting powers to assist the state in dealing with litigation, hence the need for policies.

Structure and leadership capacity and OSD

The structure, leadership capacity and the Occupation Specific Dispensation has negatively impacted the OSA. [The OSD, inter alia, prescribes entry-level salaries at very low levels.] The OSD is unable to attract high-calibre individuals for historic reasons including a lack of agility in enabling proper rendering of state legal services. Client departments do not want to reimburse the Department. State attorneys are in fact state attorneys and do not belong to the DoJ&CD. The OSA struggles to attract high-calibre individuals into the OSA. This may be in part, due to the OSA’s history.


Another problem the SG noticed when he started work was infrastructure. He knew he was zooming into problems, however they impact negatively on how the OSA can seamlessly change the fortunes of the state, by rendering sterling legal services. State attorneys do not have a system that they can utilise. They are, by-in-large, operating on paper-based systems and do not have automation. The state does not have a multi-disciplinary solution that will enable either the office of the SG or the offices of the state attorney to be able to have eyes and ears on the ground. If it is accepted that the OSA needs to assist client departments, then there are other deliverables in his space which relate to this issue. The SG is mandated, and by extension, the OSA is required, to assist the state in reducing contingent liability and in managing state liability. One will never be able to meaningfully deal with these key issues unless the OSA is enabled. State attorneys find themselves in a space where there is less investment that what can be observed in Chief Directorates of the various departments they serve. Accepting that the Chief Directorates of the various departments are only focusing on assisting their own departments, whilst state attorneys are supposed to assist the state in its entirety, the SG submitted that there is a need to meaningfully invest in the infrastructure needed to turnaround the fortunes of the OSA. At the moment, there is nothing. When one looks at the mandate of assisting to reduce, manage or contain the contingent liability; it is accepted that when letters of demand are served on the state, they are either served on the accounting officer of department, or alternatively, on the executive authority of that department. If one does not have eyes and ears [or is not careful]; when summons are served at the OSA, the letter of demand has been forwarded to the relevant OSA with jurisdiction. There are now parallel processes, because Chief Directorates do not have the ability to be able to interrogate contingent liability. It is also observable that Chief Directorates are registering letters of demand on the contingent liability register. When summons are served on the state attorney—equally the same summons arising from the same cause of action—it is registered on the contingent register. If, for example the letter of demand was R4 million, and the summons is eventually served on the state attorneys for R4 million; one finds that almost R8 million is being registered because of the silo operations that are there in that space as far as litigation is concerned. The SG said he did not want to speak much more on the issue because if one does not have the necessary tools, one will never be able to interrogate the space.

High cost of litigation

Another observation relating to the high cost of litigation can be turned around by coming up with another policy that is envisioned in section 3(4) of the SAAA, that is, by introducing the alternative dispute resolution (ADR) as instructed by the Act. The SG had submitted to the following argument to the Department and wanted to repeat it on the platform [with the Committee]. The state should not be litigating for the sake of it. There are certain matters that need to be examined very closely to avoid the situation where the state litigates for the sake of it, whilst tripling and in some instances, quadrupling the amount that would have been paid in the first instance. This space can be turned around by introducing the ADR policy, which is ready and has been certified and will be going to Cabinet if scheduling allows, before the financial year-end. The intention with the ADR policy is to turnaround the fortunes of the OSA. Once a letter of demand has been served on any state entity or department, the Office of the Solicitor General (OSG) should be able to say to the claimant that since they intimate commencing litigation against the state, they are required to go into mediation first. It is not uncommon that a can of coke sold on the market for R5, it is sold to the state at R20. Counsel seems to have a similarly laissez-faire approach to government. If counsel asks for R4 000 per hour, there does not seem to be any bargaining by state attorneys.

Mandate of the OSA

This is exacerbated by client departments. The State Attorney Act requires that all procurement be made through the OSA. However, in practice, the SG has observed that the situation on the ground, with the interference of client departments and what he had already alluded to, which is the aspect of them having body shops that are geared towards creating a database within those departments. When client departments require the ratification of state attorneys, the departments will have already agreed on the fees due and payable to any particular service provider. State attorneys therefore end up being rubber stamps to those briefs. Because there is no central nerve centre for determination of the fairness and reasonableness of costs charged to the state and because state attorneys themselves would not have been involved in the negotiation of those costs, the costs end up being astronomically high and at time, unaffordable. However, because it is the state, it is business as usual. He submitted that the turnaround strategy for this issue should be that that it cannot be business as usual. The OSA has a mandate to create a harmonious working relationship with client departments. The relationship of the OSA with client departments is fictitious, unhealthy and something which the SG, in order to turnaround the fortunes of the state, needs to deal with by streamlining and aligning the services offered to those that consume from the OSA.

Turnaround strategy: Policy and legislation

The absence of policy and legislation governing the space of OSA operations in order to turn around the OSA has been very problematic. Unless and until these policies exist and are processed; the SG thought that in the normal course of events it would be another 20 to 30 years and the OSA will never be able to transform. It will also be unable to contain the contingent liability sitting at an amount that is astronomically high. It is therefore critical in turning around the fortunes of the OSA, that the policies that are going to be piloted, three of which have already been certified, will need to go through the normal processes and that process needs to be ramped up. Without policy and legislation governing, the OSA will never be able to blunt these excesses. Often, whenever the OSA raises certain issues with those that consume from it, the OSA is always met with a request that it show the beneficiaries the basis upon which the OSA relies on the assumption. It is often found lacking. The reason for this not being because there are no tools that can be invoked, but it is due to the delay in the proclamation of the SAAA, which has triggered a delay in the formulation of the policies, a delay in the submission of those policies to Cabinet for consideration and a delay in tabling those policies before Parliament. Unless and until this happens, state attorneys will find themselves wanting and will not be able to turnaround the fortunes of the state. 

Turnaround strategy: Create authority for state legal services

There is a need to create an authority for state legal services. The OSA realises that if the Act, as it instructs, stipulates that the OSA needs to co-ordinate and manage all—and he emphasised the word 'ALL' in capital letters—all litigation in which the state is involved; this means that all of the entities that are tax-funded, must be accountable somehow. The OSA can go another 30 years and the OSA will unable to service the state in its entirety. What he meant by this is that, properly contextualised, all the SOEs, which are tax-funded, and which report to client departments, must, one way or the other, account for who they are briefing, how briefs are given and how the services are being consumed, so that the OSA is able to have eyes and ears in those places.

It is therefore the SG’s intention that before the financial year-end and in consultation with Treasury, we are populating an advertisement for an expression of interest by those that are in the legal field, to render services for and behalf of the state.

Turnaround strategy: Infrastructure

How this will be done is that a database which parallels the state attorneys’ model, will have to be created, consideration being given to the fact that one will never be able to render state legal services across all spheres of government.

Once a database is created and it is centrally managed, the OSA will then be able, perhaps on a quarterly basis, to request state owned enterprises (SOEs) and other organisations that are rendering services for and on behalf of the state be it boards, or SOEs (which at the last time he counted, there were 302 such bodies), that [they should] in terms of certain prescripts to at least give the OSA reports from time to time which indicate the total spend in so far as litigation is concerned, and who the entities are briefing so that the OSA can see if they are repeat offenders in that space. One wakes up every day with legal practitioners from, more often, the Previously Disadvantaged Individuals (PDI)/legal practitioners grouping, giving and presenting memoranda and petitions, [to] the Presidency, the Ministry and his office. The OSA is also found wanting in this space merely because it has not put the necessary policies and prescripts in place. Briefing is iniquitous, it is unfair. In the short period of time he has been in this space, the SG said, he has borne witness to this fact. Unless the OSA comes up with cross-cutting policies, it will never be able to turn the fortunes of the state and will always be blamed for not transforming the legal space. It is unheard of that there are so-called constitutional experts of the South African Constitution of 1996. He said that one has to accept that the state has invested immensely in those that are now experts in constitutional time, litigation. When it comes to briefing and briefing patterns there is a skewed attempt to prefer those that are experts. South Africa is not creating its own jurisprudence insofar as the new court of experts is concerned. It is part of the briefing pattern that if you are required to give state legal services, you may be required to take a junior from a disadvantaged background with you so that you can pass on skills and share experience. If this is not by policy, nothing will improve.

Unless there is proper consideration of what contingent liability is, the state will be unable to pay for claims. It is the duty of state attorneys to try and reduce contingent liability. The problem state attorneys face is a difficulty in qualifying cases that are dormant and those that are not. Without proper systems, the OSA will never be able to separate data that is not helpful, in order to determine contingent liability.

In order to turn around the fortunes of the OSA, there is a directive that the OSG has issued which is going to come into effect from 1 April 2021. Even looking at the 1957 State Attorney Act, and the SAAA, there is a critical provision which has never been utilised before. The country often complains about the problem of state looting in SOEs, as well as anywhere else. The critical section says that in certain circumstances, OSA offices may intervene in any litigation in which the state is involved. This is not a part of the policies [but it] is a part of the Act that has never been meaningfully utilised. How this will be used to turn things around is using the fact that all registrars of courts will be required to furnish the OSA with [the details of] cases that are ongoing throughout the whole country. OSA will then join into these cases as interested third parties or as amicus curiae. This will ensure that the OSA is aware of what is happening in cases and whether or not they are without merit. If intervention in a matter is contrived, then a state attorney should have sight as to what the nature of the litigation is. The Integrated Case Management System (ICMS) needs to be implemented.  

Turnaround strategy: Mandate

There is a need for a state legal service intergovernmental forum to be established. In order to align the offerings by OSA offices across the country, the OSA is convening what it is calling the national litigation forum. The national litigation forum involves all accounting officers in the various departments, both national and provincial, so that they can discuss the essence of the SAAA. At the moment, there is either an attempt to feign knowledge, and not to know the impact or import of the SAAA, notwithstanding the fact that a cabinet memo has been submitted in relation to the appointment of the SG as well as regarding the implementation of the SAAA. Once the OSA convenes the forum, these difficult issues will be discussed. It will talk about the one-nerve centre for state legal services which resides with the OSG. The OSG and the incumbent to that office is meant to be an executive officer of all OSA offices. To the extent necessary, it cannot afford not to engage with those that consume services from the OSA. The relationships are, however fractured by mistrust and distrust.

Turnaround strategy: Resource limitations

OSA offices are currently facing serious challenges. As SG, he is only required to appoint [staff to] incapacitated OSA offices in so far as appointment of heads of offices are concerned. However, when he came into the SG role, he noticed that there was a moratorium on the appointment of qualified legal practitioners to assist those heads of offices. There is a likelihood, and it is happening, that those that are in that space, within OSA offices, are being utilised to merely carry briefs on behalf of counsel and do nothing else. This cannot be the intention of the legislature. The moratorium that has been put in this space has impacted negatively on the operation of state attorneys to an extent that each attorney that in fact deals with matters, has on average, 500 files to deal with annually. The OSG is a new branch, and although he understood the need for the austerity measures, the loss of R132 million coupled with the moratorium on employing people and the lack of infrastructure, [means that] this turnaround strategy would be hard to implement. He spoke with 25 years of private practice experience. There are state attorneys who do not even have a desktop [computer].  He did not want only to paint a gloomy picture but to take the Committee into his confidence in saying that there could not be a meaningful change without investment.

Using the Road Accident Fund (RAF) as an example, the SG said that state attorneys are playing an integral role in turning around the fortunes of the state. He knew this was not under the Committee’s purview, but thought that it was important for the Committee to be aware, as it impacts contingent liability costs to the state and gave an indication of the kind of impact that the Committee could have. There are about 70 state attorneys who are going to be set aside to deal with the RAF and who will be paid from the RAF and not from the baseline of the DoJ&CD. This intervention is warehoused in all 13 OSA offices across the country. The intervention is that each OSA must, within reason, and taking into account resource limitations, have some warm bodies that will be dealing with RAF matters until such a time as the RAF resolves the issues and the impasse that it is having with those litigating against it. As he understood it, the matter is now going to the Supreme Court of Appeal (SCA) and it is likely that it may end up in the Constitutional Court. The OSA cannot allow the state to collapse because, in his view, the RAF is one of the 302 entities which must from time-to time report on who it is briefing, and what it is paying in relation to the services rendered to it. If there is an observation [to be made, it is] that there is an over-investment on Chief Directorates that know nothing or little. With all humility, he referred to Chief Directorates dealing with legal services. These Chief Directorates are meant to be assisting OSA offices from time-to-time and they are not doing that. Hence, the need for the national litigation forum that he referred to, as well as the need to harmonise relationships.

The OSA has in fact created an enabling environment in order to professionalise the space and more specifically for the Chief Directorates. The OSA had come up with another scheme of arrangement which acknowledges the limitations observed, and he was prepared to allow client departments to assign their Chief Directorates to serve articles for a period of one year. The reason why this intervention is necessary is so that those that are at the coalface of dealing with state services to know what is expected of them. It is very important to allow that scheme of arrangement, so that those who are warm bodies within the Chief Directorates will know what to register insofar as contingent liability is concerned, so that there is no parallel of summons and letters of demand being uploaded on the contingent liability register, to the extent that there are duplicates. The OSA has also identified that there are a number of letters of demand that continue to sit on the contingent liability register as state attorneys to this day have never removed them. This means that the data, coupled with dormant matters, is creating a huge problem. In order to turn the space around, the SG submitted that these were some of the interventions that might need to be made.

Halfway progress report: Policies

The SG called his next series of remarks a “halfway progress report” as he was about halfway through his term, since as he stated earlier, his contract was only 24 months long and this was his 11th month. He appreciated that this was the Committee's term to oversee the OSA and he appreciated that the OSA needs to be guided in how best to deal with these issues. He repeated that in the 11 months, the five critical policies had been finalised. As stated, there are five draft policies, three of which have already been certified. At the end of February 2021, the OSG would be finalising stakeholder engagement for the remaining two policies, instead of the previous manner of passing one policy a year.

Should the Committee wish, the three certified policies can be lodged with the Committee Secretariat. Once the remaining two policies are passed, the same will be done. In these eleven months, all five policies have been concluded, the remaining two will be certified before the end of the financial year, but if that is not possible, before the end of the first quarter of 2021/22.

Halfway progress report: Creating a central authority for state legal services

The SG said he considered each of the 13 OSA offices to be law firms. The draft legislation strategy is in the consultation stage. The roles for 8 heads have been advertised, five heads have been appointed to date. The OSA does not have human resources (HR) processes of its own. It follows the transversal service of the Department and it has to rely, from time-to-time, on these services. The advertisement in terms of the five positions does not reside within the OSG, but resides in the corporate services of the DoJ&CD. Where there are delays, it is a situation that needs following up via memos and elated aspects as the OSG does not have absolute control insofar as that is concerned. It has established a number of working relationships with a number of government departments. The SG had also established working relationships with accounting officers, and the OSA also has functional stakeholder relations with the Legal Practice Council and with all organised professions such as the Law Society of South Africa, the Bar, the Black Lawyers Association of South Africa, among others. It is very important to have these relationships as it permits collaboration in considering what is possible in terms of the SAAA. Some of these engagements were critical to his presentation today. He has also taken it upon himself to have a meaningful relationship with all judge presidents. He has not finalised interactions with all of them, however, he has had constructive engagements with them. He felt that the Justice College [a state academy within the DoJ&CD] should be better utilised. He was told that he could have used it to re-skill and upskill state attorneys. Morale in the OSA is very low with the attrition rate being very high. Some of this has to do with the lack of resources. 

Halfway progress report: Reduction of state liabilities

The SG said he would not repeat what he said about the RAF, however he felt that after all five policies are put into place, turnaround will be possible. He wanted to take a moment to mention ADR or mediation policy again. He would request the chance to return to the Committee so that he can talk about the motivation for the amendment of the commencement of litigation against certain organs of state, which should be synchronised to refer back to the mediation policy that is intended in the SAAA.

It was his view that the OSA would follow all processes to link the commencement of litigation against certain organs of state, without impacting negatively on those that in fact litigate against the state.  

Halfway progress report: Limitation of state liability

The SG had already alluded to the ADR policy but clarified that it is intended in the main to deal with matters at an early stage. The issue of having to wait seven years to settle a matter that originally was R100 000 is creating a situation where one finds that the capital amount being claimed against the state has ballooned due to inflation and other considerations. From R1 000 to R100 000, R1 million, or R10 million. Capital costs and the costs of litigating need to be mitigated. He said he would take the opportunity to familiarise the Committee with issues that might be of interest to it. Being part of the DoJ&CD collective, he knew that these were critical issues. He had had occasion to look into the medico-legal space as well as the opportunistic claims arising from the SAPS. What he sees in the medico-legal space leaves much to be desired. The contingent liability to this day amounts to trillions of Rands and there are a number of opportunistic claims against the state. He took the Committee into his confidence in outlining some of the measures which his office and the OSA had put in place to address this. When looking into thousands of medico-legal claims, he is seeing duplication and triplication of claims. Using the example of new courts, a claim that might have arisen at the Pretoria High Court, now appears at the Mpumalanga High Court since it has recently been established. There are about 17 law firms which are involved in this scheme. He raised this issue now so that if it comes up in the news later, the Committee is not surprised that he had not mentioned it. These discoveries were being made without the necessary tools of trade. He asked what more could be done with the necessary tools of trade. He asked what more could happen if the OSA could create a nerve centre which is a centre of excellence for the OSA offices and which supports them in rendering their statutory mandate as opposed to merely ticking boxes. He asked what more could be achieved if it could deal with inefficiencies that are happening in the space insofar as the Eastern Cape belt is concerned with particular reference to Mthatha, where judges are now lamenting the fact that private attorneys are coming to court, purporting to be representing government, without having gone through the state attorney model. He said that he thought the rest of the content could perhaps be covered by questions. He took the opportunity to share what he observed in the Office. For him, the Office essentially came into being on 7 February 2020 [when the SAAA commenced].

The Chairperson thanked the SG and said that wanted to ask him an unfair question. He should only approach the response as he was in his power to do so. This kind of work needs a long-term view. He asked whether he is open to accepting another opportunity to apply again [to be appointed SG]. As he thought of his answer, hands were noted.


Ms J Mofokeng (ANC) said she was partly covered. She thanked the OSG for a very good report. The halfway progress report indicates that lots of work is done. She also wanted to know whether he would re-apply for a second term. She asked whether he would have time to train others to take over what he has started, including resuscitating the Justice College.

Mr W Horn (DA) thanked the SG for the presentation and said that from his side, it is a concern that the two major issues which have been identified over the years that were also a part of what has been reported to the Committee as being at the heart of the issues at the OSA offices, seemingly have not been tackled and resolved. He fully appreciated that there was a broader context and that all of the other matters raised will be of relevance to get to situation where there is stability and proper functionality at the state attorney's offices. The two issues remain that firstly; there seems to be a lack of proper expertise and as confirmed in the very last slide,  a lack of 'a proper system of performance management' in place. This is the first concern relating to the warm bodies in the OSA. It must be of concern that this issue has not been resolved. He noted that Mr Swart would speak after him, but said that his takeaway when he was still in practice was that the remuneration available to people in the service of the OSA is not the same as top-earners in private practice, but has always been better on average than for the general practitioner in private practice who survives from the one month to the next. It cannot be that financial considerations are the main issue. He asked for feedback on this specific issue. Secondly, he raised the lingering issue of financial resources that have also come under strain because of the way that advocates specifically are briefed by the state attorney. Seemingly, either because of a lack of proper management, or in other instances because of a malicious agenda on the part of these practitioners and on the part of the advocates, state resources are depleted. It worried him that nothing similar to the system of Legal Aid South Africa has been duplicated in the meantime. He asked why there is still no system in the OSA office within the legal framework, issuing a list of predetermined costs that would be available to advocates who are briefed, and leaving it to the advocates to either accept or reject those predetermined amounts or to refuse to do so. It was problematic to him that it was still being reported that a coke would cost so much more, just because one is working in the state environment. Surely, within the current legislative framework, it should be possible by now to determine the amounts at which advocates can invoice the state?

Mr S Swart (ACDP) apologised for joining the meeting late and welcomed the presentation as it was very in-depth. He commended the SG, saying he had done a lot. There were a number of issues which needed to be thought through carefully. Firstly, the concern raised by Mr Horn about advocates’ fees related to a recent concern from the Competition Commission about the guidelines for advocate fees. He asked if a similar guideline for the procurement of private legal fees would not run into similar problems as with the Competition Commission. He fully appreciated the capacity constraints that OSA is struggling under, now that there has been a further cut in the budget. Having said this, he thought the Committee Members were all deeply concerned with the allegations of corruption within the OSA offices. He asked for an update in this regard, though he noted this may have been covered before he joined the meeting. To the Chairperson, he added that he thought that the Committee needed an update from the Special Investigating Unit (SIU) as to what is being done to recover fees that have been stolen. This is a matter of fraud and corruption was of grave concern as heads of offices were concerned. The strongest action should be taken against the duplication of claims at different courts. He commended the SG for picking this up, however action is now needed. These attorneys must be struck from the roll and a strong deterrent must be put in place. His concern about the SG’s statements around the OSA acting for boards and SOEs and all state-owned companies (SOCs), was that the OSA was struggling to give good service to its current SOEs. He felt that the fractious relationship needed to be improved and the best services provided to these clients. He would be watching this very carefully. He did not wish to suggest that this was not something to be looked at in the long-term, however, he wanted to see the OSA presenting the best and most effective services for existing clients. If it is correct that seven out of 10 cases are lost at present, then this allegation was a serious indictment on the professionalism of the OSA. He acknowledged that Mr Pandelani had only been in office for a short while and was doing exceptional work to try and turn the situation around. He had inherited a legacy of poor service delivery that has been highlighted in the courts by various court judgments. He urged the SG to be careful about taking on too much additional work without being able to deal with the existing work. On the debt owed by client departments when advocates are briefed, he asked for an update because where those departments face budget cuts, the client departments may now not pay for the fees rendered by the state attorneys, for example where counsel is briefed and the OSA pays counsel up front and the department incurs a massive overdraft with the OSA not being able to recover those funds. This is untenable and he asked how the SG was dealing with the matter. One of the most serious issues relates to contingent liabilities facing the nation. The SG correctly referred to the RAF and medico-legal claims. He thought it was commendable to be using accounting practices to quantify the true contingent liabilities. He did not understand what the SG was saying about Chief Directorships doing a clerkship in order to understand the process of summons and letters of demand when it comes to ascertaining contingent liabilities. He would need to be convinced that this is the best possible usage of a Chief Director's time as it is a very high level in the state's civil service to be doing a clerkship or articles; even if only for a year. He said that surely a short course in understanding these things would be better, but he said he might have misunderstood the SG and asked that he explain it to him. He thanked the SG for raising the last issue of the RAF. Again, his concern was whether state attorneys are now taking up RAF matters. He asked how the OSAs involvement is impacting its present infrastructure and capacity constraints. Whilst this could save money in the long term that would be spent on private attorneys acting for the RAF, he was concerned about the capacity of the OSA. He thought that until the OSA had sorted out its capacity constraints and had a sufficient budget, it needed to be careful about taking on new clients. He also wanted to ask that when it comes to RAF matters, his understanding was that where a government official such as a policeman or doctor is involved in a motor accident and they are in the course and scope of their employment, a state attorney will then act on behalf of that policeman or doctor in suing the RAF. He asked if there was not the potential for a conflict or whether the OSA does not act on behalf of government officials that are injured in motor vehicles in the course and scope of their employment or whether this work is given to private attorneys. This would be, to him, where the State Attorneys should be acting.

The Chairperson asked for Mr Swart to enlighten the Committee on the Competition Commission and the fees.

Mr Swart said that there is a guideline for fees [that should be charged] for different items. The Competition Commission said that it was uncompetitive and limiting private advocates as the advocates could not then work for half or less fees. He was not sure whether the guidelines are still used because of the Commission’s case.

Ms W Newhoudt-Druchen (ANC) thanked the SG for the presentation. Even though he had been in this role for 11 months, she asked what kind of support he receives in his office. An organogram or so would do. He indicated that there are OSA offices, six of which have Heads of Office and five of them are still being advertised. She asked what the timelines for appointments were as she thought that making the appointments was very important and should not be something that is dragged on for another 12 months and then the SG is not there. The report says that advertising was conducted on 9 February and she asked for a progress report on it. Mr Swart had mentioned client departments not paying the OSA. She wanted to know how many of these client departments have not paid what they owe to the OSA and what the outstanding value is. She asked that this be shared with the Committee if possible. In terms of the fourth industrial revolution (4IR), and the fact that the SG says that a number of offices are not well-resourced and do not have ICT systems available to them, she asked if the OSA receives any support from State Information Technology Agency (SITA) in terms of provision of technology and updating of the available technology etc. Back on the point of client departments, where departments refuse to pay what is owed to the OSA, but they hire private attorneys and pay them, it means that they have the funds to make those payments, surely. If it is the case of them not paying the OSA, she asked how many situations like this exist.

Adv G Breytenbach (DA) thanked the SG for the encouraging presentation. She had been partly covered however and wanted to express concern about the short term. There is not a lot of time for the SG to finish what he has started. The SG mentioned that when the OSA briefs what he calls 'experts', the OSA requires them to take juniors to court with them to pass on their experience. In her time at the National Prosecuting Authority, prosecutors often briefed outside counsel on prosecuting matters in which they had insufficient expertise or no expertise. They would generally work for a reduced fee, though not significantly so, nevertheless reduced. One of the requirements in the contract which the NPA entered into with them is that they would have as junior counsel two, three and up to four state advocates from her unit who would then spend time with them learning the case, learning from them and attending court with the prosecutors. She asked if the OSA was doing this or would consider doing so. Secondly, she was not sure if it had been asked in a different form, but at present she had read the horror stories of huge amounts of litigation being undertaken by the state attorney with matters being allowed to drag on and on, only to be settled on the court date, literally on the steps of the High Court. This runs up enormous costs and is unacceptable and cannot be defended. She asked what is being done to stop the practice.

The Chairperson asked if in an ideal situation, the SG got all the resources he needed, and he was presenting to Treasury, he should be able to quantify how much the state is losing because of lack of proper empowering. He should then be able to explain by how much he can reduce the loss by. This can be in real figures or percentages, but National Treasury needs to see that should it give this entity an amount, it will in fact regain money to the national fiscus. There is an attempt at changing the attitude to the national fiscus. Instead of a blanket reduction, it is trying to look at cases on a case-by-case basis. If the Committee is going to fight with Treasury for more funds for the OSA, it must be clear in the OSAs business case that the state realistically stands to benefit and see value. He thought that the South African government is faced with a real problem with the economy not growing and the fiscus being small. It was therefore important for departments to be able to account for how they intend to assist the fiscus. He said that it would be important for the SG to assist the Committee in this regard, however, he said that he would give the SG three minutes to arrange who would be answering as there were a number of questions to respond to before he gives concluding remarks after members have given their follow-up remarks. This would serve as a comfort break for Members.


The SG said that, relating to the briefing of those known as experts and the twinning arrangement that could exist in that space in wanting to transform and up-skill those who do not have the necessary expertise, what the NPA has been doing over the years is the way to go. Adv Breytenbach indicated that in terms of regulation 13 of the Disaster Management regulations, issued pursuant to the Disaster Management Act, the Act enjoins the SG to co-ordinate and manage litigation to do with COVID-19 matters. The SG has piloted the practice with the directions that have been issued to the OSA offices. In the event that particular expertise is required from a legal practitioner, it is now at a pilot scale, requiring that briefs will only be given on the known condition that the practitioner upskills others who may not have the necessary skills. This is something that could work, although there could be resistance for now on the basis that there are no policies. However, from what he had observed, the fact that his appointment coincided with the declaration of the National State of Disaster has helped him to study the OSA space and to come up with some of his observations without much interference. Going forward he took the point and would implement the twinning of existing expertise with those that require up-skilling. This is something that would be considered. On the horror stories of cases going on endlessly only to be settled at the doors of the court, using ADR is the manner in which cases like this could be dealt with more expeditiously. Settling matters early will be helpful in addressing this. Using the example of medico-legal claims, there may not always be the necessary experts to come and testify on the behalf of the cases. The reason why early settlement of cases would help is that because of capacity constraints within hospitals. He chose the medico-legal space as an example so that the Committee would be able to appreciate the kinds of interventions that the OSA wants to make. When clients are discharged [from hospital treatment], clients are given their records as there is no system for keeping them. When this happens, opportunistic tendencies creep up. It might creep up two-or three years down the line. If dealing with a minor, it might creep perhaps 17 years after that minor was born in that particular hospital. If ADR processes are used for the early settlement of matters, there is then an opportunity for parties claiming from the state to be required to prove their case at an early stage. This means that they will have to produce the records that they were given. Therefore, if mediation is entered into at an early stage, these documents need to be produced where they may not necessarily be produced for the purposes of court. The issues will then be able to be interrogated and matters will be dealt with at a very early stage.  In this way, both contingent liability of the state as well as the costs that would be inherent in the matter would be limited. It is not good to settle matters at death, as the RAF is reported to be doing. In all the meetings, that the OSA has had, this is something which it is discouraging.

The SG said it would be disingenuous of him to be on the platform and to say that all was [well] in support of the OSG. The issue of support goes to the issue of the implementation of the SAAA. He is required to come up with a structure, at the apex level of what he calls the branch. He could not create a strategy, vision or structure until he had interrogated the bones or ghosts of bones that remain. The essence of the implementation of the SAAA gives the SG the latitude to identify and make a needs analysis in the space. For the moment, however, the OSG was operating on a shoe-string budget if there was a budget at all. All other submissions that he had made, were made with very limited resources, even from the OSG. What was there before [he was appointed SG] was something that was not a creature of statute. There used to be a role [within the Department] called the 'Chief Litigation Officer’. [The OSG] still ended up having to rely on the Department for a number of deliverables. For example, for HR services, the OSG relies on transversal services in the Department. If there is resistance or if people in that unit are not agile enough to capacitate the OSA, the OSA is probably going to fail. The SG said he has made these observations because according to his time lines, the five remaining OSA offices should already have been completed, but there are processes and procedures needing to be followed. He argued that the OSG is a creature of statute and that there cannot be an equivocation as to what processes to follow. The statute allows the SG to appoint 13 heads of offices, however the SG is then told [by the Department] about benchmarking and other prescripts in the space, thereby allowing the appointment of some and stopping the appointment of the last five. He used this as an example. The OSG relies heavily on the transversal services granted by the Department. It is not agile and it is not speedy. He said this with all humility as they do not actually report to the OSG. The SG is not actually an accounting officer, even though the level might be the same, as he accounts for processes which need to happen in his space. This is dependent on external interventions. If the SG does not buy-in to the external dependencies, he will not be able to turn the fortunes of the OSA. He felt it was important to focus on the OSA space as previously any insight given by the Committee to the OSA, was given under the umbrella of the DoJ&CD, and not of his office on its own.

It is important that since this was an inaugural meeting [between the SG and the Committee], he must say that there could be far better systems in place to support the OSG to realise its mandate. Other than that (he said this as an outsider) those that are hell-bent on collapsing [the OSA] could collapse it. Because if the OSA does not have control and cannot conduct its own consequence management to those rendering services to it, there is much that needs to be done.

The SG reiterated that of the 13 Heads of Office, there are eight heads that have been appointed. Two were pre-existing in the North-West and in Polokwane. OSG has since capacitated the OSA offices in Bloemfontein, Johannesburg, Pretoria and Nelspruit, which has a new court and an office. The SG had also just signed off the letters for the Western Cape and KZN. All in all, he will have eight substantive Heads of Office whilst the other ones are acting in the meantime, pending the advertisement, screening and interviews of the five other offices.  As already indicated, East London was part of the offices that were supposed to have a substantive Head of Office, but after an arduous screening process of 513 applicants, the OSG could not find any fit and proper person to be appointed in that space. There were skills limitations and there was a need for people that were fit for purpose who could hit the ground running. In addition to the inherent problem of the OSD, which means that senior attorneys are not willing to apply as Heads of Office because the OSD means they can earn up to R400 000 less than what is [paid for posts] on the more junior level. The requirement that people take a knock on their salaries in order to become Head of Office indicates a lack of appreciation of the role of heads of offices. The five positions will be advertised in line with this question.

The SG then moved to the questions on the non-payment of OSA by client departments. He said he called them disbursements because the OSA does not charge a fee to client departments, but rather a disbursement is charged. He wanted to reflect on the worrisome issue that might answer some of the other questions asked by Members. There is, and continues to be, interference with the operations of OSA offices. State attorneys report being called by individuals [from client departments] in the middle of the night to be told that they are going to brief so and so. This is a culture. There is a subculture which says that people will do as they please, notwithstanding the existence of legislation that Parliament has deemed fit to put in this space. If there is not going to be one central nerve centre for consumption of state legal services, what the state is allowing is wanton looting, by warm bodies within departments who have the latitude to choose who they want to brief. They cannot be blamed for choosing their nephews, uncles in the legal practice and benefiting them at the state's expense; irrespective of the value of services that exist in that space. This interference is something that the SAAA needs to deal with. What is happening both provincially and nationally in certain instances is that client departments create their own databases so that they can obviate having to go through the OSA. He did not mean the OSA in the strict sense, because the act envisages that one can go via OSG if one wants to deviate in procuring legal services. When these departments are allocated a budget, they would not look at state attorneys and they use their own body shops to procure legal services. This is because of the absence of policies. The department would have unfettered discretion as to who they will brief, whether or not it is in their body shop or not. They can brief whichever counsel they deem fit and they pay exorbitant amounts of money with no-one to protect the state by asking why such so much is being paid for counsel when there is a more realistic price. If one drew a graph one would see a trend that state attorneys are now engaged towards August or September. The question is then why only in August or September? The answer is because the client departments no-longer have the money to pay the warm bodies from the body shops. When the departments do this, equally, they do not have the money to pay for the capital expenses related to any such litigation. When this happens, it means that the departments are very unwilling to settle the matter because they do not have the budget. They then dump the matter into the hands of the state attorneys. When payment is made, it comes from the baseline of the DoJ&CD. There needs to be a back-to-back arrangement that the DoJ&CD will be reimbursed with the money that will have been paid in lieu of disbursements and the capital costs that has been occasioned. What the SG has observed is that departments will then tell the OSA that they are broke and do not have the money to pay. In the past meeting when the SG was involved in discussing the turnaround plan for the Department, the question was posed as to what the OSG was doing about the non-payment by client departments to the DoJ&CD. He inherited these issues, but unless mechanisms to deal with these issues are come up with, the state of affairs will remain as is. When he first came on board [in April 2020], non-payment by client departments was R172 million. It is likely to have gone up. When he last checked, this figure was just over R200 million because other invoices may not have been factored in. This leaves much to be desired. As a result, he sought to engage the Director-General (DG) for Treasury because the first thing he found on his desk was a request to write off the amount owed by client departments. He refused to do so, primarily because coming from practice, he deemed client departments to be subject to the intergovernmental framework. He sought Treasury's intervention because he did not understand why sister client departments would not pay a fellow sister department money that has lawfully been expended on their behalf. The intergovernmental framework discourages departments to sue each another because they work for the same state. Those that belong to the area of financial management would know better how to deal with the issue, but up to this date, he had not agreed to write off the fees. He had come up with some suggestions which were controversial but he would share some on this platform even though it was a virtual one. First, he would like his hand to be firmed in a manner that says that in the budget allocation to these departments, the amount owed to the OSA should be withheld and paid to the OSA. There are other options as one could refuse to render services to the client department that owes it.

The SG said that support for the OSG and OSA was inadequate. Systems have been dumped in the OSA space. This has not been helpful. It is as good as being given a word processor. Lawyers should be equipped with the ability to protect the constitutional dispensation. Ideally, as soon as a Constitutional Court or Supreme Court of Appeal (SCA) judgement has been passed, a state attorney needs to be able to access it. There is nothing in OSA offices that enables them to do this. Case management cannot be conducted properly within that space. State attorneys are unable to determine which matters are dormant and which matters are not dormant as they do not have the tools of trade. Reflecting on the past, the SG said that those intended to support the OSA in digitalising had failed it. There is nothing and the situation is dire. He asked how one could be expected to train a candidate attorney in that space. The OSA is failing its own professionals. This is part of the reason why some attorneys find the reason to join the opposition, and when they do, after the state has invested so much money on them, they become a weapon in the hands of private practitioners because they know the weaknesses [of state legal services] from within the OSA offices.

Looking at the levels of OSA attrition and the levels of recruitment of those that are in private spaces, those litigating against the state find fertile ground to recruit from the ranks of state attorneys after the state has invested so much in them. The OSA has categorised state attorneys in line with departments, so that there are units helping various clusters within the Department. This information, in the main, will be considered to be state secrets. However, there is nothing stopping these attorneys, knowing the strengths and weaknesses of the OSA model, from seeking greener pastures elsewhere owing to them feeling unappreciated. This is something that he needs to be dealing with.

When client departments hire private attorneys, they do indeed pay, however, they are not keen to pay for services rendered as disbursements by state attorneys; taking into account the fact that fees are not charged.

The SG asked Mr Isaac Chowe to speak to the issues on the Competition Commission and fees, after which he would deal with the remaining issues raised by Mr Swart.

Mr Isaac Chowe, Pretoria Acting Head of Office, greeted everyone and asked the SG if he should speak to the fees of counsel.

The SG said that he should also speak as to whether the OSA has guidelines for fee categorisation.

Mr Chowe said there was an issue raised some time ago when the state attorney presented to the OSA and the DG at the time, Mr Madonsela, saying that the OSA had created a standardised fee-guideline which became known to the advocates and ended up being a cause for uproar. Advocates were not happy with it, arguing that it actually restricts competition among advocates. On this basis the then Acting Chief Litigation Officer, before the OSG was created, took the matter up with the Competition Commission. There was a communication which the OSA received from the Competition Commission after explaining that there was standard fee which the Department or the state, through the state attorney, puts in place for everyone in a particular category to earn equal fees. The Commission at the time said that this was not necessarily uncompetitive, but was merely a standard fee set across the board. The state attorney then did have these fees in the previous dispensation. OSG, however, it is now in the process of ensuring that there is a standard way of dealing with counsel fees and these processes are now at a very advanced stage, but he would leave this to the SG to continue with as it was his territory. The guidelines that were created are still utilised, however they are not cast in stone, because there are issues to be taken into consideration when discussing counsel's fees, such as the duration of the matter, the volume of papers that counsel has to go through and the novelty of the issue needing to be discussed. Up to now, the previous guideline is being used but the guidelines to be set by the OSG will be the final manner in which this issue will be dealt with.

The SG said that it cannot be that fees cannot be uncompetitive. Insofar as fees are concerned, one generally sees revisions by the Fees Committee, which set up norms and standards of fees that can be charged on a party-party scale; an attorney-client scale and punitive costs as may be another category. In this cascading scale, he observed that party-party will be the lowest and will be fair and reasonable. It is meant to also accord an opportunity to poor litigants to deal with their litigation. Attorney-own-client will be at a higher scale as it is in nature punitive. There are also costs de bonis propriis which can be issued by any court and are at a higher scale. If fees charged to government are not standardised, the state is creating fertile ground for those rendering services to the state to charge punitive costs to the state. This is why there is a need for standardised fees. Going forward, those who want to be on the database will have to indicate the fees that they intend to charge to the state. The OSA will have to be guided by what is fair and reasonable under the circumstances and in the light of the inflation rate and guidelines that will be set by the Fees Committee. It will also be informed by the Legal Practice Council (LPC) as it is the authority dealing with all legal practitioners. The SG said this because he came into this role from a different space and could see the exorbitant fees that the state is made to pay from time to time. He did not purport to have enough energy or resources to deal with all of the things which he was piloting now, however, he thought it was fair to project the picture so that Committee Members will be able to appreciate the environment under which OSG is operating.

Corruption in OSA was one of the first things he considered in his first week. The African proverb says when checking the depth of a river, you do not put both feet in but one. Hence, he asked if the SIU would look into the OSA. The SIU presented files to do with state attorneys. These processes are very slow. Now that he knows the people addressed in those cases, he, as SG, could cite an example given to him is that it is not uncommon—that attorneys advise that another zero be added to their claims against the state so that it ends up adding another R27 million to the capital amount that is being claimed and this is what is settled for. This was an example given to him and he had not actually examined which matters specifically deal with these issues. The question is then what happens to the R27 million. He asked if it is going to be shared between the warm bodies or not. These are problems which are reported. Suffice it to say, the SIU, insofar as procurement of legal services is concerned, utilises the OSA to procure legal services, as with the NPA. However, there is a very good working relationship between the OSG and that of the SIU. The offices interact from time-to-time as this is the space that the SG is interested in. Some of the issues are not really legacy issues and are merely intended to assist the state. Matters are ongoing and there are matters where judgments have been taken by default, particularly in the Eastern Cape and in Mthatha, for example. With his permission the SIU went to Mthatha to review the judgments and set them aside. This should be reported in the SIUs numbers. Recently, there was a case where the SIU was able to rescind a default judgment that was taken without the state's participation and one wondered where the summons had been served. If the state does not augment its service points, in certain instances, where the Sheriff comes to deliver summons at an OSA office and if there are no proper checks and balances, it is possible that the Head of Office may not be given those summonses, because, in terms of the scheme of arrangement, the summons will disappear. Unbeknown to the state, a judgment will then be taken, which is why he argued for an augmentation of this system so that the OSA can plan for some of these occurrences. The issues of fraud, malfeasance and corruption in the OSA—and there are those working with them, though few in number— blights everything that one sees in the OSA.

The opportunistic tendency on the duplication of matters is not an issue confined to Pretoria and Mpumalanga, but is also found in Thohoyandou and the new court established in Polokwane. Both courts had dependencies as they were branches of the former Transvaal Provincial Division (TPD). The SG said that before the establishment of CaseLines [a commercial digital / electronic case management and litigation system introduced by the Office of the Chief Justice in 2020, which was piloted at the high courts in Johannesburg and Pretoria], it was not unheard of to find that a matter would have been resolved at the TPD, which is the North Gauteng High Court, and with the establishment of the Polokwane High Court, another set of attorneys, even if not the first set of attorneys, resuscitate a matter that has been settled before for the same client, on the basis of the same cause of action but likely for a different quantum of damages. This is the space he was interested in and he needs resources to deal with these issues. 17 identifications [of such duplications] made so far without resources indicate that the OSA really means business when it says it wants to turn the fortunes of the state around. He was talking about his colleagues here, but said that if he can catch one thief, either from the private legal space or not, it sets an example to others of what is possible in that space. He may not be able to deliberate on the issues that the OSA has in cooperation with the SIU as most of them are very sensitive. To the question as to how the OSA will deal with the issue, he said this spoke to the next question as to whether the OSA was not taking too much onto its plate since the OSA was imploding.

The SG felt that this observation was fair and reasonable and it was the temptation being resisted at the present moment. The temptation is also informed by a number of other concerns. Municipalities that are semi-comatose are also approaching the OSA because they are facing litigation from left-right and centre and they are saying that they have heard of an office that has been created, which is the OSG. Although municipalities are aware that they have a sinking fund and that they could have the latitude to do their own things, they are hampered and they do not have resources. He had requested on more than one occasion for OSA offices to assist in this space, notwithstanding the fact that on the one hand we are fighting for resources. The OSA will be blamed for things not going well elsewhere and to the extent necessary, even without resources, an attorney that operates on ethics cannot under these circumstances resist having to assist; even for a municipality that does not fall within its scope. Doing this increases the contingent liability of the state and exposes the state negatively with default judgments being taken. Mr Swart's observation was correct and the OSA has internal problems and capacity constraints and it can do more to turn the OSA around.

In the memorandum concluded with the RAF, the OSA already said that it did not have resources. RAF approached the OSA mid-term after budgets were allocated. The RAF reports to the Department of Transport and will have nothing to do with the Portfolio Committee on Justice, however to the extent that it is imploding in the OSAs hands, the OSA needed to intervene. The OSA is only able to offer them an umbrella. It did so because RAF approached the Legal Practice Council and was about to do a Cabinet memo to request that they create their own internal legal firm. This has been resisted and rejected. RAF was then directed to the OSG, and the SG needed to come up with an interim measure. The interim measure has no impact on the financial resources of the Department because, from the R10.6 billion that they save annually, the Department should be able to pay the 70-odd attorneys hired to assist them. The 70-odd attorneys are not currently dealing with any matter within the OSA and are only dealing with RAF-related matters. His state attorneys were getting calls from Judge Presidents day-in and out where default judgments were being taken out against the RAF. The OSA was hampered as it did not have the necessary resources to respond to that challenge. The scheme of arrangement is meant to be temporary in nature, and is not supposed to be permanent, but to the extent that it could become permanent, the OSA would find a way to mobilise resources from the RAF itself to fund the additional competency which the OSA will be required to assist with.

Moving on to the issues raised by Mr Horn, the SG said he appreciated the fact that he was a former practitioner himself and that he would be able to appreciate the kinds of challenges that one would have in this space. On this point, there is something to be said about the state growing its own timber. At the moment, the state is not doing so because it is not investing in the state attorney model. This model had nothing and only had one piece of legislation. If there was a competing piece of legislation that would assist the state, it is Legal Aid South Africa where the SG sits as a board member because there are cross-cutting competencies. Legal Aid has a different mandate and it was not the OSA’s intention to encroach into that space. If the OSA does not invest in its own people, the likelihood of the OSA paying exorbitant fees to those rendering services to it are going to be endemic. This is where the problem is. The answer to this is cross-cutting with the other observations he has made. Financial resources are indeed constrained and this was common cause. The OSA was facing austerity measures. He needed to go back to the indication by the Chairperson that a value proposition would need to be made. With the data that he has, the observations he has made, and a number of documents that have been produced in this space and never implemented, he thought that this had been a huge investment in him as a person. He had jokingly said to the executive committee that it seemed he had only come in yesterday and when it comes to contingent liability, once he leaves, they would ask him to consult based on all the processes he came up with and a portion of what the processes saved the state could be a kind of commission for him. He said this jokingly to show that he could use these processes as a way to transform state attorney offices if given the resources.

The SG said that he had skirted the question on the length of his appointment on other occasions. He came into this role reluctantly. After the first two months, he decided to stay. There have been people who have confessed that he [should] not stay, however, these people have seen that there was a vision he carried to turn things around. He had been in this field for a long time and was part of the first people who drafted the paper for transforming the OSA although it was self-serving at the time since he was in private practice. He is taking each day as it comes. Unless he is given the tools of trade, he has decided that he is not going to make the OSG a grandiose organisation, but his focus would be on the OSA. He also noted that the legislation does not make provision for an Acting SG, and so he did not see himself as Acting SG. The OSG is another matter that will be discussed.  He added that he had to attend these meetings with his own resources. He is not asking for complex 4IR intervention. He merely wanted basic tools of trade. For example, someone fell off a roof during work, and he claimed [workmen’s compensation from the fund set up in terms of] the Compensation for Occupational Injuries and Diseases Act (COIDA). The injured worker then met an uncouth legal practitioner who encouraged him to claim against RAF for hit and run. Not long after, the same cause of action was claimed that against the Department of Health on the basis that when operations were being done on the same person, secondary negligence had occurred. These matters cannot be dealt with meaningfully without a multi-disciplinary solution that enables the SG to have eyes and ears across government departments The SG followed the case to conclusion and under cross-examination the worker confessed that he fell off the roof during the course and scope of employment. He said that this could be served by simple artificial intelligence (AI) that can identify a claim under COIDA from that same ID number.

The SG said that there was talk of professionalising the public service and there is a virtue in capacitating the public service. Most public servants called Chief Directors in the legal space are very high up in the organisation. One finds situations however that there are some Chief Directors [in the legal space] who entered into the public service very early on, without serving articles or pupillage and yet, they are a Chief Director. This is a long-term issue. These are the people who are meant to be interfacing with OSA offices in so far as the protection of the state is concerned from a legal point of view. If they do not know better, when they receive a letter of demand, they proceed to populate the departmental contingent liability register. When the OSA then receives summons in relation to the same matter the OSA, of necessity, enter it on the contingency register, correctly so, [but] creating a duplication. These Chief Directors need to be capacitated. It is inimical to decide to fire everybody. There is a mother that is there who is a Chief Director [in the legal space] and has been one [for a long time]. There are many of them. Considering about 30 government departments in provinces, one can count a minimum of 11 departments each, all of which have Chief Directors, these figures discounting municipalities. The one way to deal with them is to have regular interactions. At his level at the office of the OSG, it is important to have a working relationship with those that are supposed to be supporting the OSA. If this happens, then the state would be greatly assisted in that space.

The SG said that as much as one would want to, one can never assist the state in its entirety. One thing which the Act enjoins the OSA to do is that whilst it is getting its house in order as state attorneys, the OSG needs to liaise with SOEs. It needs to deal with [briefing issues and is concerned about] briefing patterns being equitable. He did not mean that the OSA would interfere in this space. If the policies are in place, he did not intend to render the SOEs legal works. The Act requires that he issue directives and policies. He needs to have a back-to-back relationship with accounting officers so that the system functions well. Periodic reports need to be given to the OSA, even if quarterly so that the OSA can see who is being briefed and what the spend is on the briefings. One can only achieve this without hampering the work of the state attorneys. As he rebuilds the OSA offices, he indicated that a database on legal practitioners from the legal space is being piloted. These practitioners would have to agree with the OSA on fees that are conscionable and not unreasonable. These practitioners are ones from whom private legal services would have to be consumed when needed. A long-term goal is dealing with briefing patterns across all spheres of government. This goal is not something which he is prioritising as opposed with having to rebuild the OSA offices and conducting a resource mobilisation exercise. He wanted to make as much noise as possible in the time that remains in his tenure to his own executive authority and to engage with Treasury and the Auditor General (AG). He needed to go there as certain things that are not measurable in the hands of state attorneys must be dealt with. He acknowledged that the OSA had problems in having and allowing default judgments to be taken and in allowing dormant matters to continue being part of the work load that it indicates as being part of what the OSA does year in and year out. It is this which triggers the high numbers in the figures seen around contingent liability. He thanked the Committee.

The Chairperson thanked the SG for the comprehensive briefing. He was very excited by the presentation which the SG had made. He expressed the desire that the whole Department take his open approach in dealing with matters. If it did so, he thought it could go very far. The SG had conducted thorough surgery on what was going on, in the short, medium and long term. To the extent that he needs partners, the Committee was here for him. He will be unable to fight corruption if there is a corrupt legal system. He was happy to see that the Law Society was present in the meeting. During the course of the year, the Committee would meet with the Law Society, the Legal Practice Council (LPC) and the General Council of the Bar and all other Bars and to precisely discuss the issue their members being found to be guilty of corruption. The Members had seen a number of programmes on television where attorneys in particular were robbing people of their livelihoods and also the state. It is something that is unsustainable and it erodes the value system that the country is working so hard to build. It is therefore important, that the Committee have meetings with the LPC, the Law Society and the Bar, to ensure that members who do not belong to the profession are rooted out. One cannot have a profession that is meant to enjoy the trust of the people; continuously betraying this trust until it becomes normal. He suggested that the Committee and the OSA agree to make time for the policies which are already certified to be presented to them so that it can walk this journey with it. The Committee would take the same approach that it has taken with the SIU, the NPA and the Asset Forfeiture Unit and house the OSA as its special project. This means that on a regular basis, it will ask the OSA to come and make a presentation to the Committee in order to identify areas where it can work together to ensure that it assists the SG to turn the institution around. For instance, he had identified the issue of medico-legal claims was of mutual interest to the OSA, the NPA and the SIU. These entities were investigating in Gauteng and the Eastern Cape, but the OSA had now indicated that there are 17 firms, some of which are in Mpumalanga, that may be guilty of the same malfeasance. It would be important that as the Committee works together with the NPA and the SIU in its continuous briefings, that it does the same with the OSA. It is one of the branches in the DoJ&CD that the Committee wants to know that by the time it comes to an end, that branch can being turned around would serve as a proper legacy deserving of the people of South Africa. The Committee had accordingly identified the OSG and said that if its problems can go right, a lot of things can go right in the country. The Committee would want to give it all the support it needs and also thought that the OSA needs to develop a customer satisfaction model so that as it is building and re-branding, the State Attorney’s Office, there needs to be regular customer satisfaction especially from the departments and other organs of state. With all that the OSA had raised, there is also, on the side of the departments; a strong feeling of not having been served properly. The OSA has made an undertaking to the effect that it is re-building the institution to ensure that it serves the state properly. As part of doing this, he thought it important that there is regular customer satisfaction as the Committee tries to ensure that the departments comply with the Act, there should be a corresponding satisfactory level that is being delivered by the office of the state attorney to those departments. The Committee was happy that the OSA was having engagements with National Treasury and the Office of the Auditor General as one of the measures which it can use is to work with the AG so that for the departments that do not comply, these instances become audit queries. In most instances, departments want clean audits or unqualified audits and would not want audit queries. He thought that working with the office of the AG would also assist in this regard. It would also be important for a discussion to be held between the OSA, the Minister and the accounting officer for the DoJ&CD for the establishment of some kind of project office on the issues which the OSA really needs to do its work on. For instance, the issue of not being frustrated by HR and to decide on what kind of support can be ringfenced to properly service the OSG so that it is able to meet its own targets. This is one discussion that needs to take place with the accounting officer and the Minister. Part of what is stumping South Africa and ensuring some of its deliverables, is that the state is grossly leaking. The SG had for instance given the example of something worth R5 which the state pays R20 for. These instances amount to billions of Rands that could otherwise be saved to build schools and hospitals and all other things. South Africa cannot sustain a situation where it empowers a few at the expense of the many. It cannot maintain a situation where the [rich] will be made happy by paying them exorbitant fees whilst the poor cannot be serviced properly and when there are no schools for the general population. To the extent that it has been found that the fees guidelines are not uncompetitive, these are the kinds of things that are urgently needed so that the state can regulate to ensure that it pays a fair and equitable amount as a state for the services it is procuring. The Committee will assist the OSA in ensuring that those issues are resolved. He thanked the SG and its team and congratulated those who had been appointed and expressed the hope that all Heads of OSA offices will have been appointed by June. He thought that the whole DoJ&CD should take a leaf out of the book of how the SG has managed dealing with a complex organisation dealing with complex problems within such a short space of time. The Department has been dealing with issues that date back for more than 20 years that have not been solved, even to this date. The Committee has always said to the Department that there are centres of excellence around it such as Legal Aid South Africa and other entities and now there is a branch which, with the type of vision and energy which the Committee is seeing, will be a centre of excellence. The Department therefore has no reason to perform the way it is performing. It has no reason for high vacancy rates lasting more than a year, when in less than 12 months, the SG has been able to share what the SG has been able to achieve. He asked that the SG share some of these experiences with the Department to ensure that it turns around and serves the people of South Africa for the better. He thanked the Members and said they would meet the next day at 09:30.

Ms Mofokeng reminded the Chairperson that the Committee still needed to deal with the minutes of the previous meeting.

The Chairperson thanked Ms Mofokeng and added that before the Committee looks at the minutes of the previous meeting, he excused the SG and his team to continue the work in dealing with the issues affecting the organisation.

Committee minutes

The Chairperson asked the Committee Secretary to display the minutes and said he had asked that he also circulate the report from the Minister on the Chairperson of the Audit Committee. The Committee would find an appropriate time and date to discuss the report from the Minister pertaining to the investigation it was asked of him to conduct. The Committee had also received the legal opinion on a matter that was raised by Mr Horn on the process of appointing or recommending the Deputy Chairperson of the South African Human Rights Commission and whether the current serving members, who the Committee will not be interviewing, also qualify to be considered and how that could be done. A legal opinion was sought and would be distributed that day to all members so that a day can be found to discuss the issue. He asked that the Committee begin by dealing with the first set of minutes.

The Chairperson asked if there were any corrections to the minutes of 10 February 2021.

Mr Horn asked for one possible amendment on page 4 where it says NSRO will not be public on the third last bullet before point 9. This was a view expressed but it was not a view that the Committee had taken. He did not think there should be mention of normal and not normal people.

The Chairperson noted this was true.

The minutes were adopted.

Minutes dated 12 February were adopted.

The Chairperson thanked all present in the meeting for their participation and adjourned the meeting

Share this page: