Background and Introduction
Distinguished Members of the judiciary, members of the legal profession Viewers at home Consistent with the undertaking I made during my budget vote speech last week, it gives me a great pleasure to bring our stakeholders on board and the country at large, to share with everybody, initiatives that are intended to enhance access to justice for people of South Africa. Our constitutional dispensation has brought about more and more consciousness about rights and the need to protect them is accompanied by growing litigation.
I am pleased to release, this morning, the Policy Framework on the Transformation of State Legal Services which forms part of a comprehensive approach to the transformation discourse that also include the Transformation of the Judicial System and the role of the Judiciary in the developmental South African state. The transformation of the judicial system and of the judiciary in particular, would be incomplete without the transformation of the legal profession. They are the two sides of the same coin. It is in respect of both the judiciary and the legal profession that the Constitution sets the foundation to redress the legacy of the past, which perpetuates inequality, exclusion and fragmentation that were the hallmarks of the policy of segregation of the erstwhile apartheid government.
The legal profession is the source of training for professional persons to accede to important positions where they are required to perform national duty, in the broader national and international institutions, including the judiciary. It is therefore necessary that legal practitioners, in both the private and public sector, are adequately skilled, and that the advancement of women into leadership positions in society is promoted.
The lack of effective coordination of legal services has led to a number of operational challenges experienced across government, which include the following:
- Prescription of claims involving government
- Default judgments granted against government
- Insufficient preparation by attorneys and advocates
- Instead of settling matters, attorneys and advocates proceed against instructions and consequently burden the state with unnecessary cost orders
- Lack of monitoring systems over the work and outputs of attorneys and advocates
- Inconsistency in the determination of counsel fees by the different Branches of the Office of the State Attorney
The key guiding principles that underpin the transformation of state legal services are, among others:
- Professional efficiency
- Collegiality; and
- Accountability and value for money:,
Briefing practices
There is a general outcry within the profession that Previously Disadvantages Individuals (PDIs) are not given briefs, or where they receive some in rare occasions, that the value of the briefs are not commensurate with transformational objectives set out in the Constitution. The following are some of the inadequacies relating to allocation of legal work to practitioners:
- Briefs are not awarded in an equitable basis, big law firms in the cities and affluent areas and whites counsel get preference over PDIs and one man practices in under privileged areas
- women are overlooked due to gender prejudices
- PDIs are not briefed to perform specialised and commercial legal work.
- PDIs are not briefed in constitutional matters, resulting in a select few advocates appearing in the Constitutional Court more often to the exclusion others.
- Many young advocates who join the Bar are not given work, which results in their struggling to sustain their practices.
- There are perceived allegations of corruption in the awarding of briefs.
Other challenges are as a result of state entities and certain other government entities briefing private counsel directly, with some of them even engaging the services of private counsel on a retainer basis. Much reliance is placed on the reputation for success of certain counsel, and this, in turn, creates a pattern of briefing to the exclusion of other competent counsel of colour.
The consequences of the above is that White practitioners get preference over PDIs in particular with regard to commercial law, tax law, and environmental law other areas of specialisation and as a result constitutional imperatives are not realised.
The above challenges come against the backdrop that the state is the biggest consumer of legal services in Southern Africa, and its litigation account runs into billions of rands annually. However, it is evident that the cake is not shared equitable among the diverse constituencies of practitioners, with Blacks and women trapped at the bottom of the ladder. It is therefore important that we open doors of access to equal justice.
Therefore the proposed policy framework, in part, seeks to remove obstacles to access and unleash the potential of all practitioners, by ensuring a fair and equitable distribution of legal work.
Principles that underpin the briefing policy.
The objectives of the policy framework are therefore to the develop legal skills in the private sector through the equitable outsourcing of legal work to PDIs in order to redress the imbalance of past discriminatory practices in the legal profession and the state. This is intended to ensure the progression of PDIs, and women in particular, in the practice of law, the judiciary and other positions of responsibility in the broader community and internationally.
The policy framework shall be applicable to the following:
- The affected units of the Department including the Office of the State Attorney and its Branches.
- All state entities that are subject to the Public Finance Management Act.
- All private legal firms and legal practitioners who are contracted by the state and its entities in the performance of legal work.
The basic guiding principles for the outsourcing of legal work are the following:
- Core values:
- Justification for outsourcing legal work
A mechanism should be created for sourcing legal work and allocation of briefs to law firms and advocates from a database established for this purpose. The desired mechanism should be with a view to achieving a fair and equitable distribution of legal work. These will not be based on a handful of practitioners, but a broad representative pool of practitioners who are spread across the various specialised fields of the law.
As part of the mechanism, a tool will be created, for setting norms and standards in terms of which the work of practitioners will be measured, as well as measuring the transfer of skills through the outsourcing of legal work. The tool must ensure that PDIs and new entrants into the legal practice, in particular women, are empowered not only as a constitutional imperative, but also to hone their legal skills and thereby enhance the quality of their output.
In tandem with ensuring the empowerment of historically disadvantaged practitioners, the issuing of legal briefs shall be aimed at promoting and facilitating the development of skills in multiple disciplines of law, as well as to ensure an increase in the pool of expertise of black legal practitioners from which appointments to the judiciary can be made.
Some of the following measures should apply when advocates are briefed to ensure that an exchange of critical skills occurs:
- Where more than one practitioner is briefed, at least one practitioner must be a previously disadvantaged practitioner.
- Briefs to senior counsel and junior counsel should be issued on explicit conditions that junior advocates shall be actively involved in the performance of all activities.
- Consideration must be given practitioners from small legal firms who do not have the same exposure as their counterparts in affluent areas of South Africa.
Functional structure
The primary objective of the Policy Framework, in the medium term, is to consolidate and streamline all state legal services under a single functionary who will be appointed as Head of State Legal Services. The Head of State Legal Services, who will occupy a position of, or that similar to that of Solicitor-General in comparable jurisdictions, will be the state’s chief legal adviser who will represent the state in all civil litigation (in the same way that the National Director of Public Prosecutions represents the state in criminal prosecutions).
The Solicitor-General will oversee the following streams of units of the State Legal Services:
- Intergovernmental Coordination
- Specialist Litigation
- General Litigation
- Mediation Services and Alternative Dispute Resolution Mechanisms
- Legislation Certification
- State Legal Advisory Services
- Corporate Management and Research (Cooperative Governance)
The appointment of the Head of State Legal Services will be done as a matter of urgency for the desirable consolidation, mainstreaming and co-ordination of the State’s Legal Services to begin in earnest. This will set in motion all the institutional arrangements aimed at transforming State Legal Services.
In conclusion, I want to thank the opportunity for presenting this Policy Framework which is a milestone in the transformation of the legal profession. Together with the Legal Practice Bill which I am advised that will be gazetted later today, this Policy Framework will go a long way towards the development of jurisprudence in South Africa that is necessary to advance our democratic society envisaged by the Constitution.
I look forward to constructive engagement with the audience who heeded our call to be here today to witness the launch of yet another very profound policy discourse.
I thank you.
