Who is the State Attorney?
Who is the State Attorney?
The phrase lies at the heart of understanding the machinery of public law in South Africa. Broadly speaking, the State Attorney is the legal practitioner appointed by the Minister of Justice to represent and protect the interests of the State in civil matters. Established under the State Attorney Act 56 of 1957, the office forms part of the Department of Justice and Constitutional Development, acting as the principal litigation arm for government organs and entities.
The Historical Origins of the question of Who is the state Attorney?
To answer the question, one must trace its origins back to colonial times, when the British Crown appointed a Crown Attorney to manage litigation against the colonial administration. Following the Union of South Africa in 1910, successive government notices consolidated the office, culminating in the post‐apartheid era’s modern statutory framework under the Republic’s Constitution.
Appointment and Qualifications
A critical question here pertains to appointment procedures and requisite qualifications for such party. The Minister of Justice appoints one or more State Attorneys by notice in the Government Gazette. Appointees must be admitted attorneys of the High Court (Attorneys Act 53 of 1979, s 33), with a proven record of competence in public law litigation. They hold office at the Minister’s pleasure and may be removed for misconduct or incapacity .
The Mandate of the State Attorney?
Understanding this aspect requires appreciation of the statutory mandate. Under section 3 of the State Attorney Act 56 of 1957, the State Attorney may institute, conduct, defend, withdraw, or discontinue any legal proceedings in any court on behalf of the State. This extends to advisory functions: providing legal opinions, drafting pleadings, and ensuring compliance with procedural rules. In effect, the office embodies the Crown’s—or now the Republic’s—legal persona in civil matters.
Role in Civil Litigation
At its core, the State Attorney signifies the State’s trusted legal agent in civil disputes. From contractual claims to medical negligence suits against public hospitals, the State Attorney appears in the High Courts and Magistrates’ Courts. In cases such as Minister of Police v Rabie 1986 (1) SA 117 (A), the State Attorney defended the State’s vicarious liability, illustrating the office’s critical role in shaping public law jurisprudence.
Public Law Attorneys and the State Attorney Distinction
While “Public Law Attorneys” often advise government departments, the State Attorney specifically refers to those practitioners vested with statutory authority to litigate. Public Law Attorneys draft policy opinions and interpret legislation; State Attorneys go further, acting as “good attorneys” who take instructions to sue or be sued on behalf of the State, with the imprimatur of the Minister.
Interaction with Other Organs
The issue also connotes a nexus point between diverse governmental bodies. The State Attorney liaises with the National Prosecuting Authority, the Office of the State Law Adviser, and departmental legal advisers, ensuring that litigation strategy aligns with broader public interest and constitutional mandates (National Prosecuting Authority Act 32 of 1998, s 20).
Ensuring Access to Justice
In answering the question, one recognizes the office’s role in promoting access to justice. By offering its services without the cost constraints of private “affordable Attorneys,” they ensure that indigent litigants can engage with government processes, whether claiming social grants or challenging administrative actions, thus enhancing administrative justice under PAJA (Promotion of Administrative Justice Act 3 of 2000).
The Ethical Obligations
A vital dimension of this query concerns professional ethics. Bound by the Legal Practice Act 28 of 2014, State Attorneys must act with integrity and impartiality. Unlike attorneys in the private sector, they must weigh public interest and constitutional values above client directives, ensuring that no frivolous or vexatious litigation is pursued.
Commercial Attorneys vs. the State Attorney?
Although “Good Attorneys” may earn accolades in private practice, the State Attorney underscores a public law paradigm where legal merit and administrative economy govern conduct. The office’s decisions to settle or discontinue claims are informed not solely by adversarial zeal but by considerations of budgetary prudence and public policy.
Regional and Local Offices
The State Attorney operates through provincial offices—such as those in Pretoria, Cape Town, and Durban—that coordinate with national headquarters. The role at a local level often denotes the provincial State Attorney, who handles magistrates’ court matters and liaises with local government entities on contracts and property disputes
Interaction with Private Attorneys
Private Attorneys occasionally act on behalf of the State under agency arrangements when capacity constraints arise. Does the private agent exercise the full statutory powers? Jurisprudence in Makwela v State Attorney, Limpopo 2017 (5) SA 543 (GP) clarifies that the Minister’s notice vesting powers remains central, irrespective of who drafts the papers.
Key Challenges and Reforms
In recent years, concerns about backlogs and under‐resourcing have prompted calls for reform. Academics debate whether this party should be empowered to engage in alternative dispute resolution to alleviate court congestion, echoing developments in the UK’s Government Legal Department.
Strategic Litigation
When constitutional rights are at stake, the role takes on added significance. In strategic cases—such as Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC)—the State Attorney’s conduct in court can shape fundamental rights jurisprudence, underlining the office’s dual obligations to government and the Constitution.
The Future
As South Africa’s legal landscape evolves, the role will likely encompass digital transformation, including e‐filing and virtual hearings. Ensuring that the office remains staffed by “reliable attorneys” adept in technology will be key to sustaining efficient public litigation services.
Frequently Asked Questions
1. What legislative act governs State Attorney?”
The State Attorney Act 56 of 1957, which defines the office, powers, and duties of the State Attorney, including appointment by the Minister of Justice and representation of the State in civil proceedings.
2. How does one become State Attorney?
Appointment as State Attorney requires admission as an attorney of the High Court (Attorneys Act 53 of 1979, s 33) and ministerial notice published in the Government Gazette under the State Attorney Act 56 of 1957, s 2.
3. What is the difference between Public Law Attorneys and the State Attorney?
Public Law Attorneys advise government departments on legal matters; the State Attorney, by contrast, has statutory authority to litigate on behalf of the State, including instituting or defending civil proceedings (State Attorney Act 56 of 1957, s 3).
4. Can they delegate their functions?
While internal delegation to deputy State Attorneys is common, any delegation outside the office—such as to private “affordable Attorneys”—must be sanctioned by the Minister and published in the Gazette (State Attorney Act 56 of 1957, s 2).
5. What ethical rules bind them?
State Attorneys are bound by the Legal Practice Act 28 of 2014 and the rules of professional conduct issued by the Legal Practice Council, requiring integrity, independence, and avoidance of conflicts of interest.
6. How does the State Attorney ensure access to justice?
By providing litigation services free of cost to organs of state and specified indigent litigants under PAJA, the State Attorney promotes administrative justice and upholds constitutional rights (Promotion of Administrative Justice Act 3 of 2000).
7. What role does they play in strategic litigation?
In high‐profile constitutional matters, the State Attorney shapes public law precedents, as seen in Grootboom and Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), ensuring government compliance with constitutional obligations.
8. Are there limitations on their powers?
Yes. The State Attorney may not act beyond the scope of instructions from the Minister or in ways that conflict with statutory mandates or constitutional values (State Attorney Act 56 of 1957, s 3).
9. How does one engage the services of the State Attorney?
Government departments request legal representation via internal channels; private individuals may not engage the State Attorney directly except in statutorily provided circumstances (e.g., PAJA review applications).
10. What reforms are being proposed
Proposals include enhanced ADR powers, greater technological integration, and expanded regional offices to reduce backlogs and improve service delivery in line with the Constitution’s promise of justice.
References
| Authority | Substance & Importance |
|---|---|
| Constitution of the Republic of South Africa, 1996, s 179(2) | Establishes the NPA and vests prosecutorial authority; situates them within the justice framework. |
| State Attorney Act 56 of 1957 | Defines their office, including appointment, powers to litigate, and duties. |
| Attorneys Act 53 of 1979, s 33 | Sets qualification requirements for attorneys eligible for appointment to the role. |
| Legal Practice Act 28 of 2014 | Governs their professional conduct, ethics, and independence . |
| Promotion of Administrative Justice Act 3 of 2000 | Ensures administrative fairness; highlights their role in enabling indigent access to judicial review. |
| National Prosecuting Authority Act 32 of 1998, s 20 | Clarifies interaction between prosecutorial functions and their civil litigation mandate. |
| Minister of Police v Rabie 1986 (1) SA 117 (A) | Demonstrates their role in defending vicarious liability claims against the State. |
| Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) | Exemplifies their part in constitutional housing rights litigation. |
| Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC) | Illustrates strategic litigation concerning public health; underscores their pivotal advocacy role in upholding socio-economic rights. |
| Makwela v State Attorney, Limpopo 2017 (5) SA 543 (GP) | Clarifies delegation of their functions to private agents under Ministerial authority. |
Useful Links
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Department of Justice and Constitutional Development
An overview of the department within which they operate, providing access to policy documents and legislative updates. -
Legal Practice Council
The regulatory body for attorneys in South Africa; useful for understanding ethical rules binding them. -
South African Government Gazette
Repository of ministerial notices, including appointments of State Attorneys and delegation notices.
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