Minister Mmamoloko Kubayi: SALGA’s 5th National Municipal Legal Practitioners Forum

Programme Director: Mr Vuyo Mvoko Cllr Dr Nasiphi Moya: Mayor of the City of Tshwane Cllr Thulani Elvis Mphithikezi: Deputy Chairperson - SALGA Gauteng PEC Distinguished guests
Ladies and gentlemen Good morning

Thank you for inviting me to this year’s The National Municipal Legal Practitioners Forum (NMLPF) this morning. This is my first formal engagement with SALGA since I joined the Justice and constitutional development portfolio and I am delighted to here this morning. In my previous portfolio I had regular interactions with SALGA dealing with various issues that affect our communities and I look forward to more engagements.

The vision for the seventh administration, which is a government of national unity, was spelled by the President Ramaphosa, in his opening of parliament speech last year. He said that: The Government of National Unity has resolved to dedicate the next five years to actions that will advance three strategic priorities: Firstly, to drive inclusive growth and job creation. Secondly, to reduce poverty and tackle the high cost of living. Thirdly, to build a capable, ethical and developmental state.

Municipalities are central to the realization of each of these priorities. The topic you have asked to discuss falls within the domain of the third priority, which focuses on building a capable, ethical and developmental state.

Municipalities are at the coalface of service delivery. In carrying out the responsibility of service delivery, municipalities across the country are bound to attract litigations from citizens who may feel that their socio-economic, civil, political and cultural rights have been infringed upon; and from corporations and organisations for varied reasons.

It is for this reason that State is the largest consumer of legal services in the country and annually loses billions of rands through unnecessary legal and litigation costs. To defend itself the state employs hundreds of professionals who provide litigation and legal advisory services for the State in different capacities.

The ability of the state to carry out service delivery projects has a huge impact on the lives of ordinary South Africans as outline on Chapter 13 of the National Development Plan. The State is also faced with the challenge of ensuring that the justice system is accessible to all.

This means that unlike under apartheid, where the majority were deprived of the right to fight for justice especially against the state, ordinary citizens are able to approach the courts to find justice.

Accordingly, South Africa has developed into a litigious society resulting in the citizens asserting their rights specifically against the State.

Thus, it has become imperative for measures to be put in place in order to curb the unnecessary litigation costs and ballooning state contingent liability.

Prior to the 7th February 2020, the management of State litigation was governed by the State Attorney Act 56 of 1957 and the Offices of the State Attorney operated for a long time without proper policies relating to management and coordination of State legal services.

Challenges in the management of State litigation have been highlighted through numerous court judgments and responses thereto have been on-going since the advent of democracy.

The State Attorney Amendment Act of 2014 came into effect on the 7th February 2020 giving traction to the formulation and implementation of critical policies and monitoring which are imperative to transform and rebuild the State legal services and curb legal/litigation costs in order to fit the current constitutional setting. The office of the Solicitor-General (OSG) has, in line with the State Attorney Act, developed policy on:

• Management of State litigation.
• Initiating, defending and opposing of matters.
• Alternative dispute resolution mechanism (ADRM), State Mediation.
• Management of State litigation contingent liability.
• Briefing and outsourcing of State legal work.
• State legal representation.

These policies give the Solicitor-General a clear mandate to oversee State litigation services and steer the performance towards a fully functional State litigation service with the ultimate goal of excellence. This is in line with Building a Capable and Developmental State. This is aimed at promoting an integrated, policy driven, professional, empowering and cost-effective, efficient coordination and management of State litigation.

The Management of State Litigation will address issues such as:

the absence of a set of clearly defined rules governing how litigation services are to be acquired, managed and monitored;
lack of communication between the offices of the state attorney and organs of state in the conduct of litigation resulting in poor service delivery; and
inadequate training as well as lack of supervision across the board.

The development of the Alternative dispute resolution mechanism (ADRM), State Mediation seeks to give effect to section 34 of the Constitution by enabling a system of a speedier, cheaper and more inclusiveness in resolving State litigation cases. It will lead to a reduction in the volume of cases brought before courts resulting in exorbitant legal costs to the State. This mechanism will also go a long way towards reducing the substantial backlog of cases currently congesting the court rolls.

The engagements between the Department of Justice and Constitutional Development and South African Local Government Association on policy consultation, have been ongoing since 2022 through the office of the Solicitor-General. Since then, the engagements have been fruitful in that SALGA participated in the Intergovernmental National Litigation Forum (INLF) hosted by the Department in collaboration with the Presidency in July 2023.

Through these engagements the Department and SALGA have established a Strategic Co-operation Partnership which amongst others has led to the following outcomes:

I. Foster friendly working relations between the two entities, DOJCD and SALGA will cooperate and develop a Memorandum of Understanding (MOU) which will detail how different programmes will be co-implemented and co-ordinated to increase access to justice and deliver fair justice for all. The MOU is currently under-going a process of legal vetting in the Department, and will be signed as soon as it finalised.

II. To consult, inform and support one another on all matters pertaining to the Solicitor-General’s Policies. This will include co-ordinating efforts and working together to deal with growing, complex litigation confronting municipality. The Solicitor-General has developed an Implementation Plan which will see litigation costs of municipalities reduced, through coordinated efforts between the two entities.

III. To work together to tackle and reduce scourge of property hijackings in big cities and towns.

IV. To reposition the Bridget Mabandla Justice College as a ‘Training Institution of Choice’ for SALGA’s legal practitioners and state and attorneys. To work together to support and build capacity to municipality councillors and their staff.

V. To co-operate on legislation development, including drafting of municipal by- laws.

VI. To expand the national strategic co-operation down to the provincial and local offices of both entities.

VII. To co-host and co-fund this National Municipal Legal Practitioner’s Forum and to see it grow into a broad, strategic forum on which programmes of both entities are explored and adopted.

Your theme for this year is “28 years of SALGA supporting and professionalizing the work of Municipal Legal Practitioners to improve service delivery and promote good governance in Local Government: Towards collaborative, efficient and effective municipal legal services”.

I am pleased that even as you to reduce your legal costs you still placed service delivery and promoting good governance at the centre of all your efforts. I am looking forward to the outcomes of this forum’s discussions and I wish you well in your deliberations in these two days.

I thank you. 

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