State law office ‘not functional’

The State Attorney’s Office has over the course of the past three financial years incurred almost R170 million of irregular expenditure from appointing private counsel and expert witnesses to represent the state.

This figure was contained in the department of justice and constitutional development’s latest annual report.

Earlier this month, a Labour Court judge hit private attorneys appointed by the state with a costs order due to shoddy work and griped that taxpayers had to foot their bill. But according to the department’s annual report, taxpayers had to foot a massive bill for work carried out by the private sector for the state over the 2016/2017, 2017/2018 and 2018/2019 financial years.

It said that in 2018/2019 irregular expenditure increased by R1.147 billion and “the increase includes expenditure incurred by the department relating to the appointment of counsel by the State Attorney on behalf of the department to the value of R169.6 million”. The department confirmed this week that this had been incurred over a three-year period.

Former senior state prosecutor and the Democratic Alliance’s shadow minister of justice Glynnis Breytenbach explained there were times when appointing private representation was warranted.

“Sometimes you need a niche litigator with specialist knowledge and expertise. And that happens in the State Attorney’s Office more often than anywhere else. But it can’t happen every day.”

The annual report highlighted an array of problems in the State Attorney’s Office, from vacancies in top management, a Special Investigation Unit probe to its “spiralling” litigation costs.

Breytenbach said the State Attorney’s Office had been in a downward spiral for at least 15 years. “The State Attorney’s Office used to be an employer of choice and a viable career option for attorneys … Now the State Attorney doesn’t function,” she said.

In May 2012, the department published a policy framework “for transformation of state legal services”. It highlighted “over-reliance on the part of the State Attorney on private practitioners to do its legal work” and said it was necessary to turn this around.

The department’s spokesperson, Chrispin Phiri, said: “Several policies were developed and are being considered … These relate to the management of state litigation, briefing patterns and outsourcing of legal work to private practitioners.”