Ramaphosa: State’s litigation bill for five years adds up to R7-billion

The government’s litigation bill for the past five years totalled some R7-billion and was a measure both of the government’s failure to deliver services and to properly manage its defence in lawsuits, President Cyril Ramaphosa said on Friday.

“Litigation against the state has risen by staggering levels,” the president said as he opened the inaugural meeting of the intergovernmental national litigation forum.

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

Ramaphosa said the liability resulting from claims against the state before the proclamation of the State Attorney Amendment Act still needs to be fully interrogated, but noted that the auditor general has reported the contingent liability for the past financial year as R147-billion.

The act was implemented two years ago.

“The ballooning costs of state litigation have become untenable and unsustainable,” the president commented.

“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.”

The forum has been established to co-ordinate the management of state litigation and state legal services, which Ramaphosa acknowledged faces considerable 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.”

Co-ordination needed

The problems included government departments facing litigation failing to co-ordinate and align their positions or to support each other when an application affects more than one department.

“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,” the president said without naming the department in question.

The sheer volume of cases presented a challenge for the state attorney, which has not been able to keep up with demand, despite a staff component of hundreds, “and perhaps did not even anticipate it”.

The forum is meant to improve efficiency in government’s response to litigation, including by settling matters at an earlier stage and allowing mediation.

But, Ramaphosa added, the state was also concerned about the effect of judgments on its policy objectives, and should make sure that it argued cases properly and appealed promptly, where necessary. 

“We need to respond effectively to any legal action that is intended to undermine that democratic mandate,” he said.

“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,” the president said.

Speaking at the same event, Justice Minister Ronald Lamola said top quality legal services in the state was “an absolute necessity”.

The government faced a rush to the courts to contest draconian lockdown measures imposed in response to the Covid-19 pandemic. In some instances, it has persevered in pursuing appeals to adverse rulings, although these have become academic. A case in point is the Minister of Co-operative Governance and Traditional Affairs Nkosazana Dlamini-Zuma’s appeal against the declaration of the ban on tobacco sales as unconstitutional, which will be heard in the Supreme Court of Appeal next week.

The high court last year ruled that the state’s continued legal funding for former president Jacob Zuma as he defends arms deal corruption charges was unlawful, and that he needed to repay some R15-million.