Ladies and gentlemen,
We are all agreement that some very important issues were raised over the course of these two days.
Perhaps the two most significant issues are, firstly, taking cognisance of the reality under which our Offices of the State Attorney have to function and deliver, and secondly, the issue of transformation and, more specifically, briefing patterns.
On the first issue, namely how the Office of the State Attorney functions, we must acknowledge the reality of litigation.
Litigation costs are rising year-on-year. We know that the volume of work is rising, and morale is low.
We have heard that client departments often issue inadequate instructions or instruct the State Attorney to defend or oppose matters that the State should not be defending or opposing.
We know of Ministries and departments complaining about the quality of service received from the State Attorney’s office – late notification of the service of summons, not keeping the files up to date, failing to take action or the case being neglected when the person dealing with it is on leave.
I have heard complaints about the conduct of departments, in terms of responding to correspondence from the State Attorney’s office. That may be so, but what is the State Attorney doing about this? Why is this not reported to the Ministry so that the matter can be taken up with the relevant Minister? There could even be a Cabinet Memorandum in this regard.
We know cost orders are being made de bonis propriis and that, due to the OSD, the entry-level remuneration for a state attorney makes it hard to attract or retain talented individuals. There are issues surrounding a lack of training and support services – such as research assistants or librarians – for State Attorneys.
It is important that these issues are raised. These are all issues that must be addressed urgently. But in doing so each and every one of us needs to look at what we can do to improve the State Attorneys’ performance. It is not enough to keep blaming someone else and expecting another person to solve the problem.
We must bolster the Office of the State Attorney and revitalise its operations to turn it into the legal firm of choice for the state and all its institutions, including local government.
We therefore value the development of a turnaround strategy by the State Attorney and the creation of centres of excellence and specialised units on, for example, constitutional litigation, medical negligence and labour matters.
We believe that the stakeholder management forum and the policy on litigation, amongst others, will play an important role.
The second issue relates to briefing patterns and transformation.
Transformation has a number of different meanings, but the easiest to measure are with regard to race and gender. We need a Bar that reflects the racial and gender demographics of our country.
Do we have one and are we anywhere close to it? The answer is no.
Racially, in terms of the latest available figures, 70% of the Bar is white – while whites make up only 8.9% of the population; 18% of the Bar is African, but Africans make up 79.2% of the population. Coloured people make up only 4% of the Bar, but 8.9% of the population. People of Indian origin make up 7% of the Bar, but 2.5% of the population.
From a gender perspective, 25% of the Bar are women, but women make up just over half of South Africa’s population – 51.3%.
As far as silks are concerned, 7% are African vs 85% white; less than 1% are African women. Has there been historical progression? The earliest official statistics only go back to 2010 and then it was 74% white and 13 % African and 21 % women. This amounts to only a marginal increase.
It was mentioned here yesterday that the private sector is not coming to the party as far as preferring to brief white men. A report on transformation of the legal profession by the Centre for Applied Legal Studies found that, both at the Bar and at firms, briefing patterns tend to prefer a small selection of black women and a larger selection of white men.
The State is the biggest consumer of legal services in South Africa, and its litigation account runs into billions of rands annually. However, it is evident that, when attorneys and advocates are briefed to act on behalf of the State, the cake is not shared equitably among the diverse constituencies of practitioners, with Black and female practitioners being the worst affected. If 76% of the briefs are going to previously disadvantaged individuals then why are the results not showing this?
The most glaring shortfall in the Bar figures is with regard to African women. We need a target within the Previously Disadvantaged category for African women. In fact, we need to break down the 76% and set targets for each group. For example, we will not be changing the demographics of the Bar if the 76% of work is given mainly to White women or Indian men.
I heard Mr Mabelane’s complaint that some Black counsel want to charge exorbitant fees. That may be true but there are many, particularly junior black counsel, who are battling and being forced out of practice. I find it hard to believe they would refuse to do work because they are not being paid enough.
We will consider Dali Mpofu’s suggestions made yesterday as well other proposals – for example the CALS study proposed that:
"The Department of Justice and Constitutional Development should undertake a research project to monitor the career paths of black female law graduates and determine how and if they progress in the legal profession over a ten year period. They should also encourage the JSC to take responsibility for the patterns of discrimination that may or may not be emerging in the profession and, as a result, in their decision-making."
We must consider these and other proposals, because quite clearly we are not making the necessary progress.
The State Attorney Amendment Act provides for the development of policy on briefing patterns and mediation.
This is a fundamental development in our transformation trajectory. It is through this process that legal work will be allocated equitably among practitioners. This will help address long-standing concerns about the skewed allocation of briefs.
We have, as a Department, taken bold steps to increase the allocation of briefs to previously disadvantaged individuals. But let me emphasise that there also needs to be proper monitoring of the quality of the work produced, regardless of the colour or gender of the counsel briefed. Counsel who do not apply themselves diligently should not be briefed again.
We must ensure that briefs are given as widely as possible, in other words, that it’s not the same people who are continuously briefed and that female and Black practitioners are exposed to many different types of work, so as to build expertise in a variety of areas.
There are complaints about the types of briefs being given, for example when the Minister and I met with Advocates for Transformation some time ago, we were told that an African woman can be given a brief to draft the pleadings in a matter, but then the brief to appear in the more lucrative trial is given to someone else.
When the State Attorney outsources work due to, for example, capacity constraints or a conflict of interest, or instructs correspondent attorneys, it doesn’t only mean instructing black attorneys’ firms, but it also means that where they do make use of bigger corporate law firms, they should insist that black attorneys play a prominent role in the actual work being done and that younger black attorneys must trained in the areas of work, so that development and a proper skills-transfer take place.
Ensuring that Black advocates are given the opportunity to learn by getting briefs that will develop them is also key.
The complaint against the State Attorney isn’t just about briefing patterns, but also about the late payment of accounts. Because of this, I offered to take up the issue of the late payment of accounts on behalf of advocates who had had complaints.
The one I did take up, on behalf of an African female counsel, was interesting – one account was unreasonably delayed because of a technicality, another because of a dispute over fees. The State Attorney sent it to the Bar Counsel on the day I sent my query. The advocate claimed she had asked for it to be sent 4 months before. I am still awaiting an explanation from the relevant State Attorneys’ Office.
In conclusion, I think we have made meaningful progress over these two days and I want to thank you for your valued contributions.
There have been very useful suggestions and inputs made on how we deal with the challenges we face.
I thank you.
