South Africa

Analysis

New sheriff in town: State Attorney ‘horror show’ in for cleanup as acting solicitor-general appointed 

Justice minister Ronald Lamola. The original photo has been altered. (Photo: Kabelo Mokoena/Tiso Blackstar Group)

Alarm bells about industrial-scale corruption in the Office of the State Attorney were sounded by Judge Eberhard Bertelsmann way back in 2014. Now, newly appointed acting Solicitor-General, Fhedzisani Pandelani, has been tasked with cleaning up and rebuilding the state’s corroded legal services.

Announcing the appointment of acting Solicitor-General Fhedzisani Pandelani in a media statement on 2 April 2020, Justice Minister Ronald Lamola described the establishment of the office of the Solicitor-General as “historic”.

Legislation amending the State Attorney Act, passed by Parliament in 2014, came into operation on 2 February 2020. The amendment empowers the minister to appoint a solicitor-general as a sort of executive, super-structure, overseeing the running of all offices of the State Attorney.

Government, said Lamola, was frequently involved in various litigious matters, “often at great expense to the fiscus”. 

The appointment of the acting solicitor-general, he said, would assist in transforming the state’s litigation strategy, reducing its “ever-increasing state liability bill” as well as collecting recoveries on behalf of the State.

While it is still subject of ongoing litigation, one such future recovery might include the R20-million in legal fees paid to attorney Barnabas Xulu’s firm, B Xulu and Partners Inc (BXI) by the former Department of Agriculture, Forestry and Fisheries (DAFF).

In this instance, in a landmark January 2020 judgment in the Western Cape High Court, Judge Owen Rogers ordered BXI to repay the monies for work which could have been provided to DAFF free by the Office of the State Attorney.

The abuse of state litigation resources has been widespread and endemic for years and includes RAF claims, medico-legal claims involving the Department Of Health as well as cases instituted against SAPS.

In February 2020, Special Investigating Unit head, advocate Andy Mothibi,  briefed members of Parliament’s Justice Committee on the progress of a massive countrywide investigation of the Office of the State Attorney.

Committee members gasped and were “shocked” at revelations by Mothibi of the extent of the corruption and the millions, if not billions, lost through collusion between Office of the State Attorney officials, legal practitioners, “brokers” and other “intermediaries” who feasted on public funds.

President Cyril Ramaphosa signed off a proclamation in July 2018 setting in motion the investigation by the SIU into the handling of state litigation by the Office of the State Attorney.

At the time, the state was losing seven out of 10 court cases while a 2016 report by the auditor-general found more than R30-million in irregular expenditure by the office.

 A March 2016 assessment by the Public Service Commission of the effectiveness and efficiency of the Office of the State Attorney also made extensive recommendations.

Selecting two random examples as recorded in the February 2020 brief by the SIU to the Justice committee turns up breathtaking and brazen displays of criminality and opportunism.

For example, in February 2018, Kgosi Lekabe, former head of the Office of the State Attorney, was charged with collusion totalling about R26.5-million in a case involving the SAPS.

Then there was “one intermediary” who Mothibi told the committee had charged R123-million “for services rendered despite the irregular appointment of the company”.

Invoices, Mothibi said, were vague and did not indicate the services provided. The mark-up by these intermediaries “was 100% of invoices which ran into millions”.

These intermediaries, he said, “had not done anything other than forward the invoice for payment. There were also many invoices that had been submitted repeatedly, even though the invoice had been paid repeatedly”.

Mothibi revealed that medico-legal claims had been made “without the knowledge of those involved in the supposed claim”.

“For example, a birth difficulty claim had not been made by the parent whose name was on the claim form and the baby cited had suffered no harm whatsoever.”

The SIU head cited the case of Nonxuba Incorporated Attorneys which had made eight claims for R15.093-million in the Eastern Cape as well as in Gauteng. Nonxuba has since been criminally charged.

It is into this den of iniquity that Fhedzisani Pandelani, as new acting solicitor-general, must step, armed with a mandate from the minister himself.

Act 13 of 2014, or the State Attorney Amendment Act, makes provision for the appointment of a solicitor-general, for a period of five years. 

Pandelani has been given a 24-month acting contract and, said Lamola:

“With over 20 years’ experience, I believe that Mr Pandelani will provide the requisite leadership and expertise to help the Office of the State Attorney become more efficient and effective.”

The appointment of Pandelani in an acting position is due to the “operationalisation of the act” and a permanent appointment “is a lengthy process which is to be embarked on soon,” said Ministry of Justice and Correctional Services spokesperson Chrispin Phiri.

“While that process is under way, it is crucial that the Office of the State Attorney begins to take shape,” Phiri said.

Pandelani is presently the chairperson of the Gauteng Liquor Board and chair of the external panel on appeals in terms of section 43 (5) of the National Environmental Management Act in Gauteng. 

He holds various qualifications from the University of the Witwatersrand including B.Proc. and LLB degrees and as well as a higher diploma in company law. 

Admitted as an attorney in 1996, Pandelani has practised in diverse areas of law “covering High Court, Labour Court and Magistrate’s Court litigation and is a skilled mediator and arbitrator. He has also lectured on various law modules through the Unisa Learning Centre and has for several years been an instructor at the Johannesburg School for Legal Practice,” said Lamola.

The new acting solicitor-general will be responsible for implementing all policy relating to the functions of the offices of the state attorney. 

This includes the coordination and management of all litigation involving the state, the briefing of advocates, the outsourcing of legal work, the initiating, defending and opposing of legal matters as well as the implementation of alternative dispute resolution mechanisms.

These policies and any subsequent amendments, said Phiri, would be subject to approval by Cabinet and also tabled before Parliament.

Lamola, in his July 2019 address on the Budget Vote Debate of the Department of Justice and Constitutional Development in the National Assembly, referred to the urgent ongoing work in transforming the Office of the State Attorney.

He said that an efficient Office of the State Attorney “is also essential for the transformation of the legal profession as a whole, particularly in relation to the allocation of state legal work or what is loosely termed ‘briefing patterns’.” 

The department had increased to 80% the target in the 2019/20 annual performance plan for the allocation of state legal work to Previously Disadvantaged Individuals (Practitioners), said Lamola.

The January 2020 Rogers’ judgment, with regard to the Barnabas Xulu R20-million fees repayment, serves as a warning to ministers, departments and other officials partial to giving work to legal friends. 

It is this “briefing” pattern over which the new solicitor-general will have oversight. 

In his budget address, Lamola also highlighted another “game-changing” piece of legislation, the Legal Practice Act, which came into effect on 1 November 2018.

This act makes provision for the establishment of the Legal Practice Council as a new regulatory structure for both the advocates’ and attorneys’ professions.

It was in fact the Legal Practice Council which lodged an application with the Western Cape High Court to have the directors of a firm, linked to Western Cape High Court Judge Mushtak Parker, struck off the roll for an alleged R8-million trust misappropriation.

It was Judge Bertelsmann in the North Gauteng High Court who in 2014 criticised the Office of the State Attorney for “gross dereliction of duty”.

He noted that “eventually, the very essence of the rule of law is endangered if regular litigants fail to observe the most basic principles that protect the independence and quality of justice dispensed by our courts”.

It was “high time that this malaise is addressed”, he said.

The amendment of the law, as well as the appointment of the acting solicitor-general, is the first concrete step to addressing exactly that malaise.

The Legal Practice Council too will have its work cut out for it and must provide much-needed oversight of the country’s legal profession. DM

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