State attorney vacancies affect performance, say MPs

MPs have expressed concern about the number of vacancies in the state attorney’s office, including the position of the solicitor-general, which has not been filled permanently for more than five years. 

This emerged during an engagement between MPs’ justice committee and department of justice officials last week. 

ACDP MP Steve Swart said that key posts in the department are vacant including chief master, deputy directors-general for court services and constitutional development, head of the justice college and five heads of state attorney’s offices in the regions. He said this has a big effect on the performance of this branch of the department. 

Committee chair Bulelani Magwanishe and ANC MP Qubidile Dyantyi pointed out that the advertisement for the solicitor-general’s position, which opened in September and closes on October 16, was not designed to attract proper skills. For instance, the salary offered — at level 15 of the public sector remuneration table — is not attractive. Qubidile said it should be at level 16, which is the salary level of a director-general. 

Magwanishe said that the annual salary being offered — R1.6m and R1.8m — is not attractive enough for an official who will be in charge of all state attorney’s offices countrywide and responsible for the litigation of the whole state. The same problem prevailed five years ago, he said. The salary is far lower than that of the national director of public prosecutions. 

One of the requirements for potential candidates for the post of solicitor-general is that they have worked in the public service for five years, which Swart said will exclude legal practitioners from applying for the post.

Magwanishe also raised the problem of lawyers acting on behalf of the state attorney’s office not being paid within the cabinet prescribed period of 30 days which he said causes many complaints. They are paid on average in 97 days which is “extremely unacceptable”.

Requirements imposed

He said the committee will hold a hearing before the end of the present parliamentary term with attorneys and the state attorney’s office to delve into the briefing patterns of the state attorney’s office because the previously disadvantaged, especially women, are not benefiting from state briefs. 

Justice department director-general Doc Mashabane replied that the five year public service requirement for the solicitor-general post was imposed by department of public service & administration regulations whereas the service conditions of the national director of public prosecutions is governed by the National Prosecuting Authority Act.

Dyantyi also highlighted what he called the “stampede, the exodus” of staff from the department, pointing to a retention problem. He said that 640 resigned in 2022/23, 486 in 2021/22 and 420 in 2020/21. “It is not getting better. People have decided that it is not a department of choice. That for me is very serious.” 

Mashabane said of the department’s has 17,000 staff members countrywide. Those leaving are not running away but taking up opportunities elsewhere. 

Acting solicitor-general Fhedzisani Pandelani told MPs that the policy of payment within 30 days is affected by disputes over the many instances of overcharging by legal practitioners for work done on behalf of the state attorney’s office. There are cases of a legal practitioner charging as much as 48 hours per day they were briefed by more than one government department. Some legal practitioners are also not in good standing with Sars. 

Pandelani cited cases of officials being bribed to expedite the payment of invoices to attorneys. A project is under way to standardise the fees paid to legal practitioners countrywide. There is also a need, he said, to ensure equity and transformation in the briefing of attorneys by the state attorney’s office. 

Swart pointed out that it is unacceptable that R1.5bn is owed to the state attorney’s office by client government departments for which it did work.

ensorl@businesslive.co.za