Picture: 123RF/ALLAN SWART
Picture: 123RF/ALLAN SWART

The appointment in 2020 of a solicitor-general to oversee the work of the state attorney’s offices around the country has the potential to save the state billions of rand, not only in terms of litigation costs and in the amounts paid out for claims but also in the eradication of corruption.

The incumbent Fhedzisani Pandelani, who took up the post in March 2020, got to grips with his mandate with vigour and dynamism and the turnaround of the office is beginning to take shape, though it remains an enormous task.

Under the new structure there will be 13 heads of offices around the country with the solicitor-general at the apex instead of the previous fragmented and uncoordinated system of one office with branches. Pandelani has already got eight heads of offices in place and hopes to have all 13 appointed by June at the latest.

The work of the office will be underpinned by five policies stipulated in the State Attorney Amendment Act, which was promulgated in 2014 but only proclaimed in 2020. These policies will provide an overriding framework for state litigation of civil cases.

Pandelani has finalised the development of these policies, which have yet to be certified and approved by cabinet. The policies relate to the requirement for the solicitor-general to act as a nerve centre to manage and co-ordinate all litigation by organs of state, a power that will no doubt be resisted by government departments that want to do things on their own; the use of alternative dispute resolution mechanisms to resolve disputes at an early stage; briefing and briefing protocols to ensure the fair allocation of briefs to legal practitioners; the outsourcing of legal work; and the initiating, defending and opposing of legal matters.

Implementation of these policies will address a number of ills that beset litigation by the state. Government departments often embark on litigation without the knowledge of or input by the state attorney’s office. Sometimes defending a claim is ill-advised or there is cronyism and corruption in the choice of legal practitioners to brief.

Alternative dispute resolution through arbitration and mediation is intended to settle claims early on without incurring substantial legal costs and the inflation of claims when cases drag on for many years.

The creation of an integrated and centrally co-ordinated structure will hopefully address the corruption, which Pandelani says is endemic to the state attorney’s office. This is also under continuing investigation by the Special Investigating Unit. The horror stories are legendary — the receipt of summonses being suppressed so default judgments can be awarded against the state; the duplication of the same claim in different court jurisdictions; out of court settlements on the day before a matter is to go to trial after several months or years of preparation; the corrupt augmentation of the monetary amounts of claims; and the payment of claims that have no merit.

Addressing this malfeasance could contribute significantly to lowering the state’s liability given that according to the Treasury at the end of 2020/2021 claims against government departments was expected to amount to R36bn and against the Road Accident Fund R343bn. In 2018/2019 medical negligence claims against provinces amounted to R104.5bn.

Justice and correctional services minister Ronald Lamola said when announcing Pandelani’s appointment that tackling the ever-increasing state liability bill is an urgent priority. 

The solicitor-general also plans to standardise fees to prevent legal counsel from charging the state astronomically higher fees than they would normally.

But having the right structure and policies in place is one thing; another is to have the right infrastructure and competent staff, both of which have been sadly lacking in the state attorney’s office.

Judges have frequently expressed exasperation at the lack of preparedness and professionalism of state attorneys or their failure to comply with deadlines. The high rate of attrition in the office and the large caseload per state attorney has contributed to this malaise.

As with Sars and the National Prosecuting Authority, which respectively have the ability to raise revenue and recoup monies stolen from the state, an investment in the state attorney’s office offers the prospect of big savings. 

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