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State Attorney Amendment Act Under the Spotlight

November 24, 2021

Department of Justice and Constitutional Development

The Draft State Litigation Management Policy, Draft Mediation Policy and Draft State Legal Representation Policy have been tabled in cabinet for approval.

The justice and correctional services minister, Ronald Lamola, confirmed this during a speech at the Black Lawyers Association Annual General Meeting.

The minister added that the Draft Initiating and Defending of Matters Policy and the Briefing and Outsourcing of Legal Work have been submitted to the presidency for the Socio-Economic Impact Analysis System.

They will then also be submitted to cabinet for approval.

The draft polices are designed to implement the State Attorney Amendment Act that came into effect in February 2020.

The act aims to amend the State Attorney Act, 1957, so as to:

• provide for the establishment of offices of State Attorney;
• provide for the appointment of a Solicitor-General and State Attorneys;
• provide for the powers of the Minister relating to the functions of the offices of State Attorney;
• provide for the powers and functions of the Solicitor-General; and
• provide for matters connected therewith.

The act flows from the Policy Framework for the Transformation of the State’s Legal Services.

According to the minister, the draft policies seek to “redress the imbalances of the past, transform the legal services and establish uniform procedures in the Offices of the State Attorney”.

The minister also pointed out that the proposed policies seek to transform the legal profession by promoting consistency in respect of the appointment of previously disadvantaged legal practitioners and will “operate as transitional mechanism while the State Attorney Act is further reviewed or decided to be amended or repealed in its entirety”.

The minister also indicated that the Solicitor-General has developed a Litigation Strategy 2021-2026 to position the Office of the Solicitor General as the nerve centre for the provision of state legal services.

The Briefing and Outsourcing of Legal Work Policy in line with s3(4) of the act has also been drawn up.

“The overarching aim of this policy is to develop legal skills through equitable outsourcing of legal work to PDIs”, he said.

The minister emphasised that the Draft Legal Sector Code will “help us transform the legal sector to give effect to the objectives of the Constitution of promoting effective and sustainable economic participation by black people and women in the economy of the Republic of South Africa in general and in the legal profession in particular”.

Meanwhile, the justice and constitutional development department recently provided responses to submissions to the select committee on security and justice on the Criminal Procedure Amendment Bill.

The select committee called for comment on the bill in October 2021.

The national assembly passed the bill and sent it to the national council of provinces for concurrence in September 2021.

The bill was tabled in parliament in May 2021.

The department published the bill’s explanatory summary in Government Gazette 44505 at the end of April 2021.

The bill aims to amend the Criminal Procedure Act, 1977, so as to:

• further regulate the publication of information which reveals or may reveal the identity of an accused, a witness or person against whom an offence has allegedly been committed who is under the age of 18 years; and
• provide for matters connected therewith.

According to the bill’s memorandum, section 154(3) of the act provides that no person shall publish any information that reveals or may reveal the identity of an accused under the age of 18 years or of a witness at criminal proceedings under the age of 18 years.

The Constitutional Court, in Centre for Child Law and Others v Media 24 Limited and Others, held that section 154(3) of the act does not afford protection to child victims of criminal offences and that the protection does not continue to apply even after a child accused, witness or victim turns 18 years of age, which it should do.

Section 154(3) was, therefore, declared inconsistent with the constitution and parliament was given 24 months to correct the defect.

The portfolio committee on justice and correctional services passed the bill with amendments.