A new bidding system for the briefing of advocates by the State Attorney’s Office was a “retrogressive measure” and would be harmful to transformation of the legal profession, argued Advocates for Transformation (AFT) and the General Council of the Bar (GCB) in court on Thursday.
The high court in Pretoria was hearing a challenge by the two advocates’ organisations to a tender process, initiated by the justice minister and the solicitor-general. It would require advocates wanting state attorney work to bid to be included on a panel, from which state attorneys would then select when it needs to brief an advocate.
The state attorney’s office has been described as the largest law firm in the country. It represents the state and government departments — national and provincial — in their lawsuits and transactions. As one of the largest procurer of legal services in the country, it has been recognised as a crucial role-player in transforming the legal profession. As judge Anthony Millar said in court: “The market isn’t really the place where transformation takes place. I think the history of the profession demonstrates that.”
AFT’s counsel, Tembeka Ngcukaitobi SC, argued that while the solicitor-general had said the tender was necessary to advance transformation, “intention must be matched by the content”. Ngcukaitobi submitted that here, the effect of the tender was the opposite. It “will entrench the status quo”, he said.
One of its problems was that it required counsel who wanted to be part of the panel to indicate their specialisations and prove these through having judgments to their name. But “as soon as you introduce specialisation, by definition you are excluding”, he said.
Pointing to some of the categories of specialisation in the tender document — such as ICT, construction and competition law — he said these were areas dominated by white men.
The tender was therefore keeping people out, when its intention was to bring them in.
“Specialisation is a mechanism of exclusion when it is imposed as a disqualification criterion,” he said.
Another problem was that the system would exclude new entrants — because the panel would be a closed one and would last for 36 months. The GCB and AFT said a large cohort of new entrants to the profession are black.
“Many of them are reliant on work from the state attorney. Yet they will be excluded for the next three years ... because the panel is closed to them.”
Everyone is getting carried away with all other extraneous factors that have got nothing to do with the tender.
— Nazeer Cassim SC, for the minister of justice and solicitor general
The GCB and AFT raised several other arguments about why the tender was unlawful and irrational in law. One of these was that the preference point system — how points were awarded to decide who got the brief — was irrational. An example was the definition of “historically disadvantaged individual”, which did not align with the definitions used in current empowerment legislation, said Piet Louw SC, for the GCB.
He went through this definition carefully, arguing it was internally contradictory and unclear. He said this type of lack of clarity ran throughout the tender — “one imprecise definition, following another imprecise definition”.
Louw said the people that would suffer the most from this would be the state attorneys who had to implement the system.
The tender also contained a provision that “a person who obtained South African citizenship on or after the coming into effect of interim constitution is deemed not to be an HDI”. This meant that black people, women and people with disabilities born after 1994 would not get the empowerment points under the tender, he said.
But Nazeer Cassim SC, for the minister of justice and solicitor-general, argued the purpose of the tender was to establish a panel that would assist the state attorney’s office with its work.
“Everyone is getting carried away with all other extraneous factors that have got nothing to do with the tender,” he said.
The point of the tender was to improve the system at the state attorney’s office, which even the GCB had said was dysfunctional, said Cassim.
He said all government tenders had common features — including that the price was determined upfront and that they lasted for specific time frame. The GCB and AFT wanted lawyers to be treated as a special group.
“Lawyers are not special. No consultant tenders are open-ended,” he said.
He said if the point preference system was read using a “sensible, common sense approach”, together with applicable regulations, they were easy to work with, and the definition of HDI was based on the form under the 2022 Preferential Procurement Regulations.
Cassim argued that, as with all tenders, choosing to bid to be on the panel was voluntary. There was no right to work in South Africa.
Ngcukaitobi said the GCB and AFT had never argued advocates had a right to work. But the tender “closed off state work to advocates who qualify in the next three years. It is unconstitutional to close off state work and reserve it to a select few.”
Judgment was reserved.
The Sunday Times previously reported that professional staff at the state attorneys office in Johannesburg had sent a petition to the minister, describing the office as one “at war with itself, and with its stakeholders”.
The petition, sent on March 14 and signed by 80 of 110 staff, listed several grievances and concerns about the state attorneys office — the briefing of advocates being one. The minister’s spokesperson, Chrispin Phiri, had told the Sunday Times that the minister had had been “assured that a detailed report will be delivered to him by the end of next week”.
The Sunday Times report was on April 28. Questions sent in the two successive weeks were not responded to. Questions sent today were not responded to by the time of publication.
On Saturday, justice spokesperson Chrispin Phiri said: “The Ministry can officially confirm that the department's senior management are actively engaged in discussions and interventions with the key staff members in the state attorney's office. We want to assure all stakeholders that this matter is being given the highest level of attention within the department.
“He said the details of the interventions were “of a sensitive nature at the moment”.
UPDATE: June 8 2024
This article was amended after publication to reflect comment obtained from the minister of Justice’s spokesperson
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