A tender calling for a "panel of referral advocates" who would then be briefed on all state litigation for the next three years, was overturned by the Gauteng High Court, Pretoria.
Judge Anthony Millar commented in his judgment, delivered on Friday, the tender is for a period of three years and once it is awarded and the panel established, it is a closed panel.
“The effect of this, in circumstances where the tender provides that the OSA (Office of the State Attorney) will brief referral advocates who have less than a year’s experience, is to exclude all newly qualified referral advocates for a period of three years until a new tender is issued,” he said.
The judge said the state as the largest user of legal services in the Republic cannot on the one hand be bound to take the steps envisaged in section 217 of the Constitution (the protection of people disadvantaged by unfair discrimination) but at the same time exclude those for whom the provision was enacted from its protection.
“In doing so the tender breaches the right of freedom of trade, occupation and profession provided for in section 22 of the Constitution…The manner in which the National Treasury has sought to regulate the practice of the profession of a referral advocate is not in accordance with the law,” the judge said.
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 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.
In October last year, the National Treasury issued an invitation to legal practitioners to apply for the establishment of “a panel of Legal Practitioners (Attorneys and Advocates) to assist the office of the State Attorney with legal services for a period of 36 months”.
The tender is of a type known as an “as and when” tender. Applications to be placed on the panel are received, and subject to compliance with the requirements set out in the tender, a panel is then established.
Unlike a traditional tender, which is for the provision of specified goods or services at an agreed price, being placed on the panel does not entitle any of the panellists to claim allocation of work. The awarding of any work is subject to need and is ad hoc.
While the tender called for attorneys and advocates to be part of the panel, Judge Millar only overturned the tender insofar as it called for advocates to be part of the panel.
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 within the three years. It thus excluded any new advocates into the profession, who did not have a chance to be part of the tender.
Judge Millar said to place all new entrants into the profession in a position where they are denied state work and are forced to rely solely on the private sector until the tender is renewed defeats the very purpose for which it was said the tender was issued – “to advance equitable reform and the reversal of excessively unequal policies inherited from the past.”
“The tender in its terms seeks to ‘hammer a square peg into a round hole’ by ignoring the bespoke statutory framework applicable to the operations and conduct of both the Office of the State Attorney and legal practitioners…. It attempts to achieve the purpose of a closed panel of referral advocates through the by bypassing the applicable statutory framework…,” Judge Millar said.
He added that the most egregious feature of the tender and one which on its own, in his view, renders it subject to setting aside, is the way in which it purports to comply with section 217(2) of the Constitution.
“ The definition adopted is retrogressive and both ignores and disregards the cumulative and multi-generational economic, social and educational consequences of apartheid. It does not withstand scrutiny,” the judge said.
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