Remarks by President Cyril Ramaphosa at a meeting of the inaugural Intergovernmental National Litigation Forum, Sheraton Hotel, Pretoria

Programme Director,
Minister of Justice and Correctional Services, Mr Ronald Lamola,
Solicitor-General, Mr Fhedzisani Pandelani,
Directors-General, 
Heads of State Attorney Offices,
Ladies and Gentlemen,      

This is an important moment in the development of democratic South Africa.   

The structure being inaugurated today, the first Intergovernmental National Litigation Forum, is a crucial step towards an efficient, coordinated state legal services system that promotes the values and obligations arising from the Constitution.  

It forms part of our broader transformation of society and the strengthening of governance. 

The Forum has the potential to enhance government’s ability to fulfil its policy goals. 

The reform of legal services – both private and public – is part of the broader transformation of the judicial system. 

It is meant to enhance access to justice and deepen constitutional democracy. 

The establishment of this Forum is a signal of our collective determination to implement intergovernmental coordination, and to drive efficiencies that reduce the considerable financial burden of lawsuits against government. 

The Forum has its roots in the recognition that a fragmented approach to litigation has huge costs for our fiscus and for our ability to implement our electoral mandate. 

It was to this correct this problem that The Presidency and the Department of Justice first began working in 2018 on the terms of reference for such a Forum. 

Among other things, this was to ensure that Cabinet has a clear line of sight of important cases and is able to contribute on government’s overall litigation strategy. 

This development has been long overdue and has become all the more urgent.  

Litigation against the state has risen by staggering levels. 

The legal fees for national and provincial spheres of government over the past five financial years amount to approximately R7 billion.  

The contingent liability resulting from claims against the State prior to the proclamation of the State Attorney Amendment Act of 2014 still needs to be fully interrogated.  

But the Auditor-General has reported that the contingent liability was sitting at R147 billion for the 2020/2021 financial year. 

Our Bill of Rights holds that every person has the right to administrative action that is lawful, reasonable and procedurally fair – and they have a right to seek the review of administrative action by a court of law. 

This is a right that we must value and uphold. 

The fact that some South Africans are resorting to the courts to uphold their rights points to widespread and systemic shortcomings in service delivery. 

Our first responsibility as government is to ensure that we address all these shortcomings and that all persons in this country are able to fully exercise their rights. 

That, first and foremost, is how we will reduce legal action being taken against the state. 

Yet, even as we work to reduce the potential for litigation against the state, we need to have mechanisms such as this Forum in place to more effectively safeguard the interests and resources of the South African people. 

The ballooning costs of state litigation have become untenable and unsustainable.   

This Forum has been established to drive a coordinated approach to the management of state litigation. 

This coordinated approach is necessary to ensure that government puts forward the best legal case possible. 

The state is the largest consumer of legal services in the country.  

It employs hundreds of professionals through the Offices of the State Attorney countrywide to provide litigation and legal advisory services.   

Yet, despite these considerable human resources, we face significant challenges, many of them of our own making.  

We have come in for scathing criticism in a number of court judgments for poor quality of legal representation, poor compliance with instructions, unnecessary expenditure of state funds, and even dereliction of duty.  

Inefficiencies from our own side are resulting in cases dragging in the courts.  

In one particular case I am aware of, the initial claim against a department was just under R100 million, but owing to our own mishandling of the matter the eventual amount the state was liable for was close to R1 billion. 

Government departments do not support each other in litigation. 

When a department is not cited, I am told it does not always assist the department that is cited, notwithstanding that the subject matter of the litigation would benefit from its input. 

Too often, government departments do not coordinate and align their positions.    

The high volume of work coupled with capacity constraints is a very real problem.  

As it currently stands the service delivery environment of the State Attorney has not kept up with demand and perhaps did not even anticipate it.  

Internal legal departments have limited capacity and struggle to obtain instructions from fellow officials.  

This Forum is also expected to drive efficiencies and contain costs.   

We know that delays and failures by government departments to address service delivery issues timeously or to settle matters at early stages increases costs.  

We know that opportunistic litigation can be frustrating, and results in the expenditure of scarce resources.  

Another serious challenge is non-recovery of legal costs, the non-payment of or delay in the payment of invoices by departments, and delays in the payment of judgment costs.  

It is also a reality that inefficiencies in many of our courts result in delayed prosecutions, costing more time and money.  

To address these and other shortcomings, the Office of the Solicitor-General is tasked with developing monitoring systems over the work of the Offices of the State Attorney.   

We must urgently formulate processes to achieve consistency in litigation procedures in different State Attorney offices, and also implement the State Mediation policy to resolve disputes speedily.   

This will require the development of directives and standards to ensure streamlined oversight of the Offices of the State Attorney, not only by the Office of the Solicitor-General but also by the Presidency.    

This must be accompanied by a concerted effort to address shortcomings within legal units in departments and other public entities, specifically dealing with the shortage of skilled and experienced personnel.  

We should plan our litigation strategies with a clear appreciation of how they affect the policy positions and plans of government.  

We have a collective responsibility to ensure that the electoral mandate of this administration is implemented, and we need to respond effectively to any legal action that is intended to undermine that democratic mandate. 

We cannot permit a situation where the policy agenda of government is impeded by the courts because we have not been diligent in our approach to litigation.  

This means that we must work as one to ensure that judgments with far-reaching policy and other implications are properly argued, and, if there are reasonable prospects of success, appealed.  

There is much that we can do to strengthen this area of work. 

We need to move with speed to implement a policy on briefing and the outsourcing of legal work. This must of necessity be accompanied by a tariff policy.  

There must be regular and formal engagements with departments to identify litigation trends, the root causes of litigation and measures to address them.  

We welcome that the Office of the Solicitor-General has developed a five- year Litigation Strategy, as well as policies to implement the State Attorney Amendment Act.   

The Department of Justice and Constitutional Development as the nerve centre of government litigation along with the Presidency will play a prominent role in this regard.   

The primary objective of the strategy is to develop and implement holistic and coordinated approach to state litigation.   

The strategy must reflect the values of government, its policy decisions and priorities.  

What is needed is that state litigation is managed in a manner that is integrated, professional, empowering, cost-effective, efficient and coordinated.   

The implementation of the State Attorney Amendment Act represents a phased approach to transforming the State legal services.  

It recognises that immediate solutions are required to current challenges.  

Our focus must be on redesigning and re-engineering measures aimed at improving state litigation management, with a particular emphasis on reducing liability and litigation costs.   

One of the most direct measures of the success of this Forum must be the reduction of the state’s contingent liability. 

As Cabinet, we will be expecting a regular litigation management report – at least biannually – which provides a clear and comprehensive view of progress in improving the management of litigation and reducing contingent liabilities. 

I have no doubt that the opening of this Forum heralds a new era in the management of state litigation.   

In the South Africa we are working to build, state litigation liability would be negligible, because we would be doing things properly from the outset.  

Where our police stations and hospitals are found wanting, we would correct them immediately and resolve disputes through mediation rather than litigation.  

In the South Africa we are working to build, we would resolve problems through engagement with stakeholders and more effective consultation, leaving little need for interest groups to challenge government’s actions in court.  

But as we build that South Africa, we will need to confront the realities of the present. 

In this time of great scarcity, let us do everything within our means – through effective coordination of litigation – to free up the financial resources of the state to pursue our developmental agenda and improve people’s lives.   

I thank you.