Court Sets Aside The State's Tender For A Panel Of Referral Advocates

ENS represented The General Council of the Bar South Africa ("GCB") and Advocates for Transformation ("AFT"), in review proceedings against the Minister of Finance, Minister of Justice and Solicitor-General. These proceedings challenged the State's tender to establish a panel of legal practitioners for a period of 36 months, specifically concerning referral advocates. The High Court delivered judgment on 28 June 2024, agreeing with the review grounds presented by the GCB and AFT and set aside the tender, in so far as it related to referral advocates.

In setting aside the tender, the High Court found:

1. The policy, that the tender is subject to, is in breach of sections 3(4) and (5) read with section 3A(3) of the State Attorney Act, 1957. Although the Solicitor General may have consulted with the Minister of Justice and the state attorneys in formulating this policy, the policy was not placed before the Cabinet for approval nor was it tabled in the Parliament as required.
2. The award of a tender will result in a transversal contract being concluded between the referral advocates and the National Treasury. Referral advocates would then be guilty of misconduct in terms of section 36(2) of the Legal Practice Act. The Code of Conduct provides that referral advocates may only be briefed through an attorney, an agreement in regards to fees must be made with an attorney and the payment of fees must only be made by an attorney.
3. The tender has the effect of setting out fees which are specified in the tender as the maximum fees which will be payable to the practitioners briefed. This is at odds with section 35(6) of the Legal Practice Act which sets out that maximum tariffs in respect of state work must be determined by the Minister of Justice by way of a notice in the government gazette. No such notice was gazetted.
4. The distinction between senior and junior practitioners in the tender is drawn between those who have more than 3 years of experience and those who have less. The tender defines "Years Experience" as meaning "practical experience in the specialized law services/fields applying for". This is inconsistent with the conferral of senior status which is not determined solely based on years of practice and thus some legal practitioners may have many more years of practical experience than others when silk status is conferred.
5. The tender is not consistent with the provisions of the Broad-Based Black Economic Empowerment Act, 2003 (" the BBBEE Act"). The way in which the work is to be awarded to those on the panel is based on a scoring in terms of which 90 points of a total of 100 are allocated in respect of price ( this would be awarded to everyone who applies for the tender since there is no independent bidding in respect of price), and 10 points in respect of any category of Historically Disadvantaged Individual ("HDI"). The definition of an HDI in the tender is narrow in its scope and on a plain interpretation, serves to exclude from the definition, any person born the day the interim Constitution came into operation on 27 April 1994. This definition is irreconcilable with the BBBEE Act.
6. The tender was also found to be anti-transformative as it has the effect of excluding newly qualified referral advocates for a period of 3 years. 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(2)(b) of the Constitution 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 to trade, occupation and profession provided for in section 22 of the Constitution.

Consequently, the tender insofar as it relates to referral advocates, was reviewed and set aside and the respondents were ordered to pay the costs of the applicants.

*ENS acted for The General Council of the Bar South Africa and Advocates for Transformation in this matter.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.