The Public Service Commission (PSC) says the system used by the State Attorney’s Office to allocate work to advocates is not transparent – it has no policy in place on briefing patterns, a ‘favoured few’ are given preference, and there are allegations of kickbacks, notes Legalbrief. In a report released this week, the PSC also calls for legislation to entrench the independence of the offices of the Chief State Law Adviser and the State Attorney – after a study found there were perceptions that legal opinions were not always impartial, and were drafted to please the government. The office was widely acknowledged as a key player in transforming the legal profession by ensuring black and women counsel get briefed, the report said. According to BDlive, the report notes there was no policy in place for briefing counsel, although one was being developed. The same black and women advocates were given preference when briefs were handed out. There were allegations that some counsel were given more briefs or briefs in more complex matters, ‘depending on their political affiliation or ‘kickbacks’,’ the report stated. The ‘acting State Attorney’ – not named in the report – said the culprits were the client departments, which insisted on appointing counsel of their choice. One respondent alleged that a minimum of R3 000 was charged by corrupt employees to get a brief. When the acting State Attorney tried to investigate, however, there was no evidence to support the allegation.

Full BDlive report  

The quality of work of the the Office of the Chief State Law Adviser was good, but ‘isolated concerns’ from stakeholders had come in about the constitutionality of some legislation to which the office had given the green light, and on the quality of its advice on certain matters – prompting the PSC study. According to a Business Day report, some of the ‘respondents’ to its study – departments, employees and parliamentary services – believed the legal opinions provided by the Chief State Law Adviser’s Office were not ‘always genuine and impartial’. They were drafted so as to please the leadership of whomever they were advising, said some respondents. Advice on legislation was & lsquo;at times pro-executive or executive minded’. The report quotes one respondent saying: ‘The (Chief State Law Adviser) … gives opinions that the members of the executive want to hear, which results in embarrassment for the President and the government’. Chief State Law Adviser Enver Daniels emphasised that his office performed its functions independently, according to the report. But the commission recommended a feasibility study into establishing an independent Chief State Law Adviser’s Office similar to the NPA. This should include the Office of the State Attorney, said the report.  

Full Business Day report  

Taxpayers have coughed almost R1bn in legal fees over the last two financial years for 13 government departments, according to the report. Despite this, the government is losing seven out of 10 court cases, notes a Netwerk24 report. Although there are 36 government departments, the PSC study used only 13 departments as a sample. According to the PSC, the police incur the highest legal bills of all departments: R340m for 2014-15 and R291m for 2013-14. Correctional Services spent R42.8m and R29.6m respectively. The PSC concluded that the State Attorney’s Office is staggering under its workload with too few hands to meet demands for its services. During interviews, lawyers indicated that 300 attorneys had to deal with 248 000 cases in 2015-16. Several critical positions, such as 12 of the 37 positions for litigation specialists, are vacant.

Full Netwerk24 report  

The report is examined from a different angle in a Daily Maverick commentary by Stephen Grootes, who suggests the report goes some way to explaining why government loses almost all the cases it battles all the way to the Constitutional Court. The lawyers are forced to do as their political masters say. He notes that early in the report they say some respondents were of the view that the legal opinions ‘are not always genuine and impartial’, but they are drafted in a manner that would satisfy the leadership of the institution and advice on legislation is at times ‘pro-executive or executive-minded’, thus creating a ‘conflict of interest’ in the roles of advisers. In other words, notes Grootes, the lawyers are under pressure to give politicians the advice they want to hear, rather than the advice they truly need. He notes the comment later in the report that this office ‘should maintain its impartiality and professionalism by ensuring that when executing its mandate, there is no undue pressure to say what the executive wants to hear, given that previous experience has resulted in embarrassment in court’ is telling.

Full Daily Maverick commentary

Assessment of the Effectiveness and the Efficiency of the Office of the Chief State Law Adviser