Justice Minister Ronald Lamola and Finance Minister Enoch Godongwana have been dragged to court for implementing a new fee structure for legal practitioners.
The Pan African Bar Association of SA (Pabasa) wants the North Gauteng High Court to review and set aside the implementation of the new fee structure.
The association said the decision, which came into effect on July 1, 2023, was irrational, unreasonable, unlawful and unconstitutional in terms of section 172(2) of the Constitution.
Pabasa said the statutory bodies that were required to investigate and make recommendations to Lamola for approval and implementation of the fees did not consult the legal practitioners.
The new structure would see the government enforcing the use of a quotation system when appointing legal practitioners to render legal services on behalf of organs of the state.
This will see the legal practitioners having to produce tax clearance certificates before their invoices in respect of their service being paid.
Pabasa said the decisions should also be reviewed and set aside on the grounds that they are irrational, unreasonable and unlawful.
The association said this would result in many legal practitioners closing their businesses and leaving the profession.
Lamola’s office is the first respondent, and Godongwana is the second respondent. The African Legal Practice Council and the state attorney offices across the country were also cited in the papers.
Asked if Lamola would oppose this and on what grounds, his spokesperson, Chrispin Phiri, said they were still studying the papers and would decide on the relevant course once they have studied the papers.
The National Treasury communication team said Gondongwana had not been served with the papers.
In its affidavit, signed by a member of the National Executive Committee (NEC), Nkaiseng Khooe, the association said the insistence on the provision of the tax clearance certificate before paying invoices of legal practitioners is in direct contradiction with instruction No 9 of 2017/2028 issued by the accountant general in the National Treasury.
Khooe said this would result in grave prejudice against legal practitioners because, in many instances, they are not able to pay their outstanding tax debts to the South African Revenue Service (Sars).
“In view of the fact that the monies that could be used to settle the Sars debt would have been unlawfully withheld by the state attorney offices,” read the affidavit.
Khooe further said that the consequences of the legal practitioner’s inability to settle their debts with Sars are that their tax compliance status would then be reflected as being non-compliant.
She said once the legal practitioner’s tax compliance status reflects non-compliance, such a legal practitioner could not be appointed to render services to organs of the state.
“The conduct of the state attorney respondents in this regard has grave prejudicial consequences on the practice of legal practitioners and in my cases, legal practitioners have no option but to close shop and leave the profession” Khooe said.
She said the application was also brought in order to review and set aside the arbitrary and irrational fee tariffs imposed by the state attorney offices upon legal practitioners rendering legal services to organs of the state as implemented from July 10, 2023.
Khooe said although no formal communication has been issued by the various offices of the state attorneys with regard to the implementation of the “said irrational and arbitrary” fee structures, individual legal practitioners became aware of the unilateral imposition of the arbitrary and irrational prescribed fees as and when they receive “so-called” request for quotation from the state attorney to render legal services.
She said Pabasa also sought an order to review and set aside the state attorney’s respondents’ decision to use an unlawful procurement system through a request for quotation when appointing legal practitioners to render legal services on behalf of organs of the state.
“It is apposite to mention at this stage that although the unlawful procurement system was purportedly implemented sometime during 2022, the system continues to be implemented to the grave prejudice of the applicant’s members and other legal practitioners, this is despite the various engagements that the applicant and various representatives of legal practitioners had with the Solicitor-General with regard to the implementation of the unlawful procurement system.
“The Solicitor-General has on many occasions undertaken, following various engagements with him in respect to the unlawful procurement dispute, to revise the procurement system and to bring it in line with the procurement laws of the Republic of South Africa. Despite such an undertaking, the Solicitor-General has repeatedly reneged on his undertaking.”
“It should, however, be mentioned that initially, the Solicitor-General had directed that the legal practitioners should be briefed once after three months only, and following up on various engagements, he resolved and directed various state attorneys’ offices to brief the legal practitioner once in every two months.
“In other words, the Solicitor-General resolved on a whim to change his three-month briefing policy to two months. This, if anything, is indicative of the arbitrary nature of his decision,” Khooe said.
Khooe said this cannot be left unabated as it will lead to the detriment of the legal practitioners.
She said the document completely ignored the well-established fee agreement between counsel and the offices of the state attorney. She said it has also proven to have brought about uncertainty.