PRESENTATION TO THE PORTFOLIO COMMITTEE OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT

15 March 2006


Presented by: Enver Daniels: Chief State Law Adviser: Cape Town


I have pleasure in presenting this report to the Portfolio Committee on Justice and Constitutional Development.


The Office of the Chief State Law Adviser continues to provide the state at a national level with advice on various matters, including policy related issues and certifies all national legislation before it (the national legislation) is tabled in Parliament.


In addition the Chief State Law Adviser nominally / notionally exercises control over the state attorneys. I have been advised that a Chief Litigation Officer is going to be appointed who will, in time, also exercise control over the state attorneys. This report, therefore, incorporates an overview of how the state attorneys have performed over the past year as well.


Up to fairly recently, Legal Liability, Legal Process and International Affairs reported to the Chief State Law Adviser, but now report directly to the Director-General.


These changes are in line with the current thinking within the Ministry and will ultimately result in the Chief State Law Adviser performing only the functions historically performed by the Chief State Law Adviser.


The Office of the Chief State Law Adviser constantly considers ways of measuring its performance and of enhancing it.


Recently it held its annual legothla at which ways of positioning itself in the 21st century were again explored.


The office fulfils two primary functions. The first is to scrutinise, draft and certify legislation and the second is to provide legal advice to the state at a national level. It also issues opinions on South Africa's international bonds, the latest being the issue of a bond worth $1 billion (R6, 32 billion).


A secondary function is the provision of training to the office as a whole and to other state departments.


Whilst its primary objective is to assist the national government, the office provides assistance to provinces and municipalities which request assistance.


The Minister of Justice and Constitutional Development has instructed me to explore the possibility of extending our services to municipalities. This is an exciting development, which is currently being pursued. There appears to be a great deal of enthusiasm from municipalities, which have already been contacted. We are hoping to provide the Minister with a report and a proposed plan of action in due course.


Two offices, in Cape Town and Pretoria, perform these functions. Whilst they perform what may be perceived as separate functions, the two offices cooperate fully with each other.


The Cape Town office scrutinises, drafts and certifies all legislation, which is to be tabled in Parliament.


Three deputy chief state law adviser and two principal state law adviser positions are vacant. Once these positions, which have already been advertised have been assessed, they will be filled.


The delay in filling the vacancies has enabled us to consider how to use those posts strategically to enhance our service delivery.


As part of ensuring that the division will always provide a service to the state, additional, younger lawyers will have to be recruited.


The development of legislative and legal advisory skills is a time consuming, cumbersome and labour intensive exercise, which requires dedication and commitment on the part of both the developer (trainer) and the trainee.


Internationally it is believed that a state law adviser needs a minimum of ten years before that person can be regarded as being proficient in both legislative drafting and legal advising.


I have good reason to believe that we have achieved our objective in that we have created a dedicated pool of legislative drafters and legal advisers who can provide the state with professional, reliable advice and drafting services.


The challenge is to enhance those skills. The key is to make the optimum use of all the available resources.


In view of the fact that most law advisers do not use English as their mother tongue, but have to certify all legislation in that language, special measures have been put in place to ensure that language usage is of a high standard.


One of the objectives of the office is the creation of a dedicated translation services unit to ensure that a Bill may be certified in any two official languages. Good progress was made with this unit, but instructions were received to put the matter on hold.


It has been difficult to obtain statistics from all the offices of the state attorney, which makes reporting accurately on this division very difficult.


We have been able to establish that during 2005, however, the number of new files received decreased by 7,5 per cent from 46 325 to 42 845. We could not determine the number of pending files because certain officers did not provide us with the documentation required. The same applies to costs and capital recovered. However the number of hours spent on work related matters increased from 314 171 to 332 663. Disappointingly the number of High Court appearances dropped from 1 335 to 965 or by 27,7 per cent.

A number of firms of attorneys have established themselves as public interest law firms with the sole objective of litigating on behalf of prospective social welfare applicants. These applications are flooding the offices of the state attorney.


We have been instructed to open an office of the state attorney in Kimberley.


The Constitutional Litigation Unit was established in 2004 to provide professional representation to the state in a way which helped to promote the state's objectives to transform South African society and to redress past imbalances and to help to influence our constitutional jurisprudence from the state's perspective. The unit has been involved in approximately 100 constitutional cases since its inception. The continued existence of the unit is uncertain and the unit will only finalise the cases, which it is currently involved in.


At the legothla held with the state law advisers recently, the division considered how best to improve the administrative support to the offices, the establishment of a data base of all opinions already prepared by the division, specialisation, training, how to respond rapidly to the needs of the state and how to be more proactive.


Various task teams have been set up to identify measures, which can be taken to achieve these goals.


The Portfolio Chair had last year suggested that we try to gauge by way of a questionnaire the levels of satisfaction with our services. We introduced this immediately.


A disappointing feature has been our failure to obtain the cooperation of departments and others in respect of our client satisfaction surveys.