Counting the costs of government's legal fees
Last year, government spent R873m on legal services — an increase of 161% over six years. The police, whose legal costs are up 228% over the same period, accounted for R300m of that
In 2016, national government paid a whopping R873m for legal services, the bulk of which — R300m — was spent by the SA Police Service.
Increasingly, government is in court and, under President Jacob Zuma, the ever-more acrimonious relationship between citizens and the police epitomises the problem.
Each financial year all national departments list the amount spent on “legal services” in their annual reports. This refers to the costs of appointing attorneys outside of the state attorney’s office, which offers its in-house services for free and advises on legislation. Overall, these legal services are primarily to deal with civil and private litigation, as well as claims brought against departments for alleged maladministration, corruption or unfair practice.
Tracking the amount spent on legal services by all 35 national departments since the 2009/2010 financial year reveals an alarming trajectory. The total rises from R334m in 2009/2010 to R873m in 2015/2016.
That’s an increase of 161% — or R540m in round numbers — since the beginning of Zuma’s administration.
Inflation and the high price of legal fees, for advocates in particular, mean that legal costs will inevitably rise year-on-year. But these increases generally tend to far outstrip inflation.
The police are at the heart of the problem. They are responsible, on average, for about 30% of all legal services costs. Like other departments, they hiked expenditure on this front — only, the totals are enormous.
In 2009/2010, the police spent R89m on legal costs. By 2015/2016, that number stood at R293m — an increase of 228% over six years. And that’s actually better than the year before, when it peaked at R340m.
So the fundamental question is: what is going wrong in our police service?
Legal costs have increased 161% — or R540m in round numbers — since the beginning of Zuma’s administration. It’s more than the cost of Nkandla
To better understand this, you need to dig into “contingent liabilities”. This item indicates the amount estimated as a potential cost that a department faces for a private claim against it, should it lose. It is not an absolute cost, but a speculative projection, done for budgeting reasons and as a worst-case scenario.
So, while a department might not lose every claim against it, contingent liability is a useful indicator of a trend: the higher the contingent liability, the more the department is having to defend itself in court.
Here, the numbers are truly spectacular. Back in 2009/2010, the police’s contingent liabilities stood at R7.4bn. But by 2015/2016, this had ballooned to R35.2bn — an increase of 370%. For the most part, the number has grown by about 30% every year.
Here the trend definitely spiked after Zuma took charge. From 2006-2009, it was relatively stable, hovering between R6bn and R7.6bn. Since 2010, it’s been one-way traffic. Last year’s record high of R35.2bn is equal to nearly half the police’s entire annual budget.
After an incident, a person must lodge a damages claim against the police within three years — so any argument that the numbers represent an accumulation of claims isn’t accurate.
The truth is more that the justice system, under pressure and under-resourced, often has delays of up to five years before a claim actually gets to court.
So what sort of claims are brought against the police?
Looking at last year’s report, damages claims for wrongful arrest and detention were the largest item, at R21.4bn.
While many of those claims are likely to fall away, the fact is that last year the police paid out a total of R293m to citizens for all claims across all categories, including those of assault, collision, crimen injuria and negligence.
Disturbingly, one of the biggest payout categories was for shooting incidents — in others words, where police shot someone they shouldn’t have. In all, R66.8m was paid out to citizens for “shootings” — over 10 times more than the R5.3m paid for this category seven years ago.
Back in 2010, the total amount paid out across all categories was R79m, of which arrests and detentions comprised R51m in payouts and a total liability of R5.6bn.
Now, the difference between liability and payout does not necessarily mean most claims are dismissed. Evidence on the number of successful claims brought against the police versus those dismissed is not readily available. Far more likely is that
large sums are cited in most claims but the final settlement — if successful — is only a fraction of it.
Advocate Mark Oppenheimer, a personal injury law expert, says: “There is no limit to the amount that a plaintiff can sue for, but courts are restricted by case law when determining a fair amount of compensation.”
Oppenheimer says the increase in the police’s actual liability “could be a result of more instances of police brutality, but it could also be due to a raised awareness among the public that they are entitled to sue for compensation”.
Anecdotal evidence suggests the largest successful claim for a private individual against the police is about R500,000. The bulk of detention claims would appear to involve a person wrongfully held over a weekend, which are settled for about R20,000-R30,000 each.
Of course, national departments are only the tip of the iceberg.
Last week’s state of the nation address left SA reeling. “Parliament is broken,” was the cry.
DA leader Mmusi Maimane’s first action after the chaos was to turn to the courts to review the president’s decision to deploy
Increasingly, opposition parties like the DA and EFF are using the courts to define government’s moral parameters. As the relationship between the legislature and the executive melts down completely, it is to the third branch of government — the judiciary — that many look for relief.
The police account for about 30% of the state’s legal costs. Their legal costs are up 228% over the past six years
From Nkandla to political appointments, the judiciary has struck a number of powerful blows. These dominate headlines because the precedent they establish is so important and universal. But it is clear that ordinary citizens, too, are increasingly looking to the courts.
And, increasingly, government has been found wanting.
The state of the judiciary — politicised, depleted, underfunded and overstretched — has never been more important. It would appear to be the final bulwark between a national administration that is constantly overstepping its mark and a sense both of order and justice.
The ANC has its sights set on tackling the highest legal echelons of power, infuriated by what it sees as the courts’ constant interference in matters of policy.
But, whatever the governing party’s ambitions on this front, you get the sense it is the low-grade war of attrition that is being fought by private citizens that is really intensifying. Here, too, the state has often come off second best.
Both these battles, at the top and the bottom, are currently playing themselves out. Both are worth following closely.