Solicitor-General Fhedzisani Pandelani has called for the establishment of a database of the government’s procurement of legal services, saying the more than R7 billion spend over a four-year period could no longer be left to the market.
This comes as the General Council of the Bar of SA (GCB) claimed it ”knew how to go about these things” and there should not be concerns with the Public Finance Management Act (PFMA).
Reacting to the Friday ruling by the Gauteng High Court, Pretoria, which emphasised that the procurement of legal services by the state should be based on the broad-based black economic empowerment (B-BBEE) principles, Pandelani said although there were checks and balances to include referral advocates, the system needed remodelling.
Pandelani, the first incumbent of the position appointed in 2020, said there was no database that conformed to the prescripts of procuring legal services and the current practice was based on an old statutory provision, which had been overtaken by events.
“We have tried to meet with the GCB from 2021 to ask them how they want to be regulated and we have been told to leave them alone. That cannot be on taxpayers’ money,” Pandelani said.
“We have empowered senior counsels. About 70% of the senior counsels have attained that status from the state empowerment. We need more discourse on how we can go about it.
“We will go back to the drawing board and try to see how we can accommodate the referral advocates, but honestly speaking, we need a database of those who are willing to do the state’s legal work.
“We cannot be expected to buy a can of Coke that is R5 on the open market but it is sold to the state at R15. I need to have the necessary optics of how we are transforming this space and not leave it to the open market as we are being told now that they (GCB) know how to go about these things.”
The matter stems from the GCB and Advocates For Transformation (AFT) asking the court to set aside a three-year tender for the establishment of a panel of legal practitioners (attorneys and advocates) to the state for a period of 36 months.
Referral advocates are a new inclusion in the classification, which previously only had attorney and trust account advocate.
The bone of contention by the private legal fraternity is the inclusion of referral advocates to deal directly with the state as they practise only through their instructing attorneys who usually act as a facilitator between the referral advocate and members of the client.
The National Treasury issued the tender in October last year after the auditor-general (AG) found irregular expenditure at the Office of the State Attorney (OSA).
However, the court found that “unfortunately, besides the assertion that such findings were made, there is a lack of specificity as to what they were and what in particular they related to”.
The application, primarily to set aside the tender, had also sought among prayers that a referral advocate may not be required to enter into contract with the state, declaring that the PFMA did not apply to the OSA in management of the tender, and to also nullifying the fees parameters determined for referral advocates.
The state’s defence had been primarily that the tender, being subject to the PFMA, was valid as the act prescribed “transparency, accountability, and sound management of the revenue, expenditure, assets and liabilities of the institutions”.
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