Speeches

Keynote Address by the Minister of Justice and Constitutional Development, Minister Mmamoloko Kubayi, on the occasion of Municipal Legal Practitioners’ Forum convened by SALGA, 12 March 2025, Cape Town

Programme Director:
Distinguished guests
Alderman Eddie Andrews: Deputy Executive Mayor – City of Cape Town
Cllr Bheke Stofile: President –SALGA
Distinguished guests
Ladies and gentlemen
Good morning

I am pleased to address you today during this human rights month. I would like to also remind you that this year we are celebrating 30-year anniversary of the adoption of the constitution.

Because of our constitution and the bill of rights, our population is increasingly becoming litigious as they assert, defend and protect their rights.
This is partly the reason why litigations against the state have been on the increase.

Your theme this year “Empowering Municipal Legal Practitioners as Drivers of Ethical Leadership, Compliance and Service Delivery Excellence in Strengthening Legal Governance within the Local Government Sector.”

In accordance with your theme, we must, during this gathering, deliberate deeply on how we can empower municipal legal practitioners at a time when municipalities are facing serious challenges.

It is common cause that a significant number of municipalities face shortages of skilled professionals in key areas such as financial management, engineering, supply chain management, and internal auditing.

As a result of these challenges municipalities are riddled with weak internal controls and ineffective consequence management which allows for corruption to persist with minimal accountability.

This is further exacerbated by ethical collapse in some municipalities contributing to wasteful expenditure, reduction service delivery efficiency, and undermines public confidence in local government.

Governance failures at local government manifest directly in declining service delivery, including water interruptions, power outages, sewer blockages, waste management breakdowns, and deteriorating road networks.

These failures have become a source of litigation against municipalities which leads to an increase in litigation budgets at municipalities. The lack of skills which also affects the legal capacity of municipalities poses a serious challenge in that municipalities are unable to respond adequately to these litigations with limited inhouse capacity.

As a result, municipalities largely rely on external legal expertise.

It is for this reason that “The Policy on Management of State Litigation Contingent Liability” document makes an admission that “State Departments or Organs of State are consistent in managing, assessing, recording and reporting of contingent liability claims triggered by litigation and other legal claims preferred against the state.”

Hence the policy was put together to “develop uniform guidelines in respect all civil litigation contingent liability claims made against state departments as well as all other matters relating to consumption of State legal services” and “provide for a substantive mechanism that inter alia shall serve to monitor and control the recording of litigation contingent liability as well as matters relating to consumption of state legal services into a single central database.”

These two functions can only be carried out by state organs that are capacitated to with the right legal skills. Without the capacity to monitor and control municipalities often fall into costly, lengthy legal disputes that do not, in most cases, favour municipalities except exorbitant legal bills.

The one area that has been a source of obscene legal costs is on employer/employee dispute resolution. It is here that:

• Clear arbitration awards are ignored, instead of complying, municipalities stall and force employees to launch enforcement and contempt proceedings. This also happens at national level, and there has been a case wherein I was summoned to appear in court because an arbitration award was ignored and the employee went and got a court order against my department and as custodian of all ligations I had to personally appear in court.
• Disciplinary processes become high-risk legal battles, with municipalities outsourcing the entire process to external lawyers. What should really be an internal process becomes an expensive and time-consuming legal exercise. I have learned from personal experience that the disciplinary processes cannot be outsourced completely otherwise it can fall into a group of unethical litigants who can conspire to fleece the employer.
• Across all spheres, although it has become more common at local government level, employees put on suspension for months sometimes, even years, despite legal time limits which are outlined in the labour relations act. In the end most of the employees are reinstated and the employer, after incurring huge costs, is subject to a risk of being sued for malicious disciplinary process.
• There are many cases in which appeals and review applications are pursued even when prospects of success are minimal, often as a strategy to buy time or hoping to exhaust the employee. This strategy is adopted by people who think that the state has unlimited financial resources to pursue frivolous litigation.
• Because of poor monitoring and management of litigation review applications are filed long after procedural deadlines, even where it is clear that such delays would negatively impact the state’s case. In most other cases orders are made against municipalities and organs of the state because state representatives do not show up in court.
• In certain cases the state pursues appeal case or arbitration awards ordering small compensation even where costs of litigation would far exceed the amount of compensation ordered. Again, the people who make these decisions do not feel compelled to be prudent with public resources.
• Percentage of litigation cases finalised through Alternative Dispute Resolution Mechanism (ADRM) is still very low even in case that ADRM could resolve disputes quicker and more cheaply.

This is just but one area of litigation that municipalities have been poorly managing but it serves demonstrate that we need to strengthen Ethical Leadership, Compliance and Service Delivery Excellence.

The process of strengthening begins with the capacitation of municipalities with adequate skills. With effective in-house legal skills, the ability to monitor and manage litigations will enable legal teams to be able to withstand internal political pressure when it pushes toward litigation that may not serve the municipality’s long-term interests.

With the right skills municipalities will be able to develop litigation strategies that are cost effective and in the interest of the municipality.

With regards to ethical conduct, the Legal Practice Council code of conduct has very instructive sections that are relevant to this discussion. It says amongst others that legal practitioners must:

• “account faithfully, accurately and timeously for any of their clients' money which comes into their possession, keep such money separate from their own money, and retain such money for only as long only as is strictly necessary;
• “retain the independence necessary to enable them to give their clients or employers unbiased advice;
• advise their clients at the earliest possible opportunity on the likely success of such clients' cases and not generate unnecessary work, nor involve their clients in unnecessary expense;”

Legal practitioners within state organs have to be held accountable to this the LPC code of ethics. Limited as the instruments of enforcement may be but we must sharpen the instruments for accountability on matters of unethical conduct.

As part of strengthening litigation management, we must find a way of clearly defining wasteful legal spending in state organs wherein we are able to assess if people are pursuing high-cost cases with poor prospects, litigating against well-established legal precedent, persisting after multiple adverse rulings and rejecting reasonable settlement offers that offer practical solutions.

State organs must opt for mechanisms that save money and speeds settlement such as the alternative dispute mechanisms. Fundamentally, we need to have a more vigilant oversight mechanism and accountability by demanding municipalities to provide monitoring reports on steps taken to manage excessive legal spending and introduce sanctions for non-compliance.

We must discourage state organs from utilising billing models that incentivise endless litigation even in unwinnable cases. This means that we must develop a framework that can help us set spending thresholds for legal services based on the type of dispute be it labour, contractual, procurement.

Such a framework would have a built-in flexibility to allow for annual adjustments as a function of municipal budget size and financial health. There should a clearly defines budget item Also for litigation expenses to prevent overspending that often leads to reallocation of funds intended for service delivery.

We need to urgently standardise legal services contracts, with a requirement to include performance-based clauses. The Office of the Solicitor-General (OSG) and the Offices of the State Attorney (OSAs) are mandated to manage and transform state litigation and provide legal services to government, but fragmented systems, legislative ambiguities, and capacity challenges have limited their effectiveness, resulting in billions lost annually through legal claims and litigation costs.

The OSG must serve as the nerve Centre of state litigation and reposition the OSAs as the State’s law firm that helps to create the standards for the state legal services contracts.

For us to successfully strengthen state legal capacity the we have to address the common thread across all state organs, which is characterised by the lack of strong internal legal capacity to critically assess risks, weigh costs, and identify alternative solutions.

There are many matters that could be resolved through internal procedures, alternative dispute resolution mechanism or settlements that more often than not end up escalating into costly legal battles that offer little in the way of strategic benefit.

Lets utilize the Intergovernmental National Litigation Forum (INLF) to enhance collaboration and consistency in managing state litigation. I am pleased to hear that SALGA will participate in the upcoming Intergovernmental National Litigation Forum that is set for 24 March 2026.

I believe that working together we can make state litigation capacity more effective and in time we will start to reduce state litigation contingent liability.

I thank you