Battle over legal tender that should be overturned, according to advocate bodies

An Egyptian court has ordered the release of 24 Nubians arrested for participating in a protest this month. (File Picture)

An Egyptian court has ordered the release of 24 Nubians arrested for participating in a protest this month. (File Picture)

Published Jun 7, 2024


Two advocate bodies on Thursday turned to the Gauteng High Court, Pretoria, to ask for a tender calling for a "panel of referral advocates" who would then be briefed on all state litigation for the next three years, be overturned.

The General Council of the Bar and Advocates for Transformation brought the application against the ministers of finance and justice, as well as the solicitor-general.

They argued that the tender was irregular and that it would result in blocking young black advocates from being able to represent the State in litigation.

The respondents, on the other hand, argued before Judge Anthony Millar that the tender would, in fact enhance, transformation.

It was argued on behalf of the ministers and the solicitor-general that if it was not for the tender, many unknown advocates would stand no chance of ever being briefed by the Office of the State Attorney.

Judge Millar was told that the tender would ensure that they were empanelled and briefed to ensure their progressive realisation of an adequate litigation skills set and goodwill.

Advocate Nazeer Cassim SC, acting on behalf of the ministers and other respondents, argued that the tender complied with all the procurement prescripts and was thus lawful, reasonable, and rational.

But the applicants maintained that it was flawed in many aspects and would have the reverse effect.

General Council of the Bar chairperson Myron Dewrance said in an affidavit before the court that previously, the Office of the State Attorney briefed advocates in accordance with the rules of law and ethos which were applicable to all attorneys and referral advocates.

But this was about to change, he said, following the tender, calling for a panel of advocates to participate in a bidding process for State work.

The scheme is to establish a panel of practitioners , including referral advocates, through the tender, who will be the only practitioners who may, over the next three years, be instructed by the offices of the State Attorney, to act for the State.

The bidders are required to conclude prescribed contracts with the State.

Dewrance said it was illegal and against the ethics of the professions of both attorneys and advocates to require referral advocates to bid for instructions and to conclude contracts with prospective lay clients, here the State, as preconditions for briefing them.

He added the scheme of a tender process was repugnant to the administration of justice and it riddled with illegalities and should thus be set aside.

He said the two advocate bodies had to protect the administration of justice and not only ask for the tender to be set aside, but also ask for an order making it clear that for future reference, that the referral advocates may not be required to compete in bidding processes and to conclude contracts with the State.

Advocate Piet Louw SC, arguing on behalf of the applicants, said they were extremely concerned about the tender process requiring referral advocates who wish to be briefed by the State attorney, to act on behalf of the State, to submit bids in order to be included on a panel of referral advocates. who may be briefed by the State Attorney.

He said the application also concerned the question of principle: whether referral advocates could be obliged to conclude contracts with their lay clients in terms of the principles of our law.

He said it was a trite proposition that referral advocates may not conclude contracts with lay clients.

The reason why referral advocates did not stand in a direct contractual relationship with their clients was because referral advocates were not simply agents of their clients, but stood in a special relationship with the court, as officers of the court.

The National Treasury invited bids in October last year, with the closing date on January 24.

“This application is not to debate the wisdom of policy choices determined by government, nor whether the third respondent’s (Solicitor-General) transformation initiatives are better than those of the applicants.”

Louw said the applicants supported government’s efforts to redress the imbalances of the past and to transform the legal profession in general and the advocates’ branch of the profession in particular. According to him, the applicants had their own initiatives in place to achieve this.

The Solicitor-General argued that the tender was required by the need for transformation of the legal profession. Transformation was absolutely fundamental to the applicants. However, the tender would not advance transformation but hinder it, Louw said.

One of the reasons he forwarded was that the consequence of the 36-month life of the panel would be to exclude new entrants into the profession.

Louw said a large cohort of the new entrants to the profession were black people. Many of them were reliant on work from the State Attorney. Yet they would be excluded for the next three years from doing any work for the State, because the panel would be closed to them.

Cassim, meanwhile, said setting aside of the tender would inevitably affect some advocates since they would remain unknown to the Office of the State Attorney (and to the attorneys’ profession at large).

They would thus continue without being briefed by the Office of the State Attorney (and the attorneys’ body at large) resulting in them being deprived of the opportunity to progressively realise adequate litigation skills and goodwill.

Judgment was reserved.

Pretoria News