Two advocates bodies have accused the government of effectively blocking young black advocates from being able to represent the state in litigation through a new tender that limits points allocated to historically disadvantaged individuals (HDIs) to lawyers born before 1993.

The General Council of the Bar (GCB) and Advocates for Transformation (AFT) are suing the ministers of finance and justice, as well as the Solicitor-General over the use of a tender process to constitute a "panel of referral advocates" who would then be briefed on all state litigation for the next three years.

These advocates would be divided into specific specialist panels.

"Any threats to vulnerable junior members is a matter of serious concern to the constituent bars and the GCB and AFT itself.

"Regrettably this is precisely what the tender, if implemented, will achieve," GCB chairperson Myron Dewrance stated.

He said the disputed tender's definition of HDIs made it clear "that persons born after 1993 are not HDIs for the purposes of the tender".

In other words, black lawyers who are 30 or younger would not receive the points allocated to HDIs.

"This definition, with respect, does not pass muster," Dewrance said, adding it flew in the face of the Bar's efforts to transform the race and gender dynamics of the legal profession in South Africa.

He added the HDI definition in the tender was unlawful and clashed with the Constitution, Preferential Procurement Policy Framework Act and Broad-Based Black Empowerment Act.

In court papers, Dewrance also raised concerns - in addition to blocking young black advocates from acting on behalf of the state - the panel's payment structures would result in experienced and respected senior counsel being lost to the state because they were not prepared to accept the prescribed and radically reduced fees they were being offered.

The GCB and AFT went to the Gauteng High Court in Pretoria on Tuesday, in an urgent bid to block the publication of the names of the advocates appointed because of this disputed tender process, pending their challenge to its legality and rationality.

"The application is brought because the implementation of the tender will severely prejudice referral advocates and specifically junior advocates who are mostly dependent upon the offices of the State Attorney for instructions [work]," Dewrance said.

In an affidavit filed on Tuesday, Solicitor-General Fhedzisani Pandelani - who heads all the State Attorneys offices - promised the outcome of the disputed tender process would not be made public until at least 18 July.

This, he said, would give the GCB and AFT "a period of six months within which to prosecute their foreshadowed review application".

In the meanwhile, the government would be able to continue adjudicating bids put forward by various legal professionals.

"Factually, I anticipate receiving in excess of 17 000 tenders from legal practitioners, at large, including members of the [GCB and AFT], nationally," Pandelani said.

"It is simply outside of the realm of possibility that these tenders could [be] adjudicated, awarded and published during a period shorter than the designated 180-day period."

As a result of that promise, Judge Anthony Millar ordered that the GCB and AFT's review of the legal services tender will be heard by him in April.

While critical of that tender, which was issued in October, Dewrance has recognised it may be an attempt by the government to address what he described as the endemic dysfunction of the Offices of the State Attorney in South Africa, which are responsible for managing all litigation involving the government. 

The justice department has estimated the cost of such government litigation in 2023/24 would be R505 million.

Courts have increasingly chastised the State Attorney for the incompetent way in which it has dealt with such litigation - and the Special Investigating Unit (SIU) has spent years investigating alleged corruption and malfeasance by its officials.

According to Dewrance, this dysfunctionality meant advocates frequently battled to get paid by the State Attorney, a failure that "has devastating effects on their careers and prospects". 

Because the tender excluded advocates who had been unable to pay their taxes because of this non-payment, he said, "victims of the dysfunctionality of the State Attorney" were now being blocked from taking on any other litigation on behalf of the government.

"I have received various reports of junior members who find themselves in this position."

Dewrance argued Pandelani "has over the course of the past four years imposed more and more restrictive directives on the Office of the State Attorney, who in turn enforced the same on advocates".

"In short, if an advocate does not comply with these arbitrary processes or directives, he or she is simply not briefed by the Office of the State Attorney."

He said the quotation process that preceded advocates being briefed to represent the state was "manifestly inequitable, unconstitutional and not transformative at all".

"Not only is it opaque but it has given rise to various forms of corruption, some of which I understand have been exposed in High Court proceedings…

"There is an urgent need to reform the State Attorney and the CGB and AFT would support any reasonable and legal reformation. The tender may be an attempt to do so, but it is unfortunately fundamentally flawed," he added.

And, Dewrance said, it was also illegal.

Rather than being briefed by the State Attorney to act on behalf of the state as they normally would be, referral advocates appointed on the disputed panel would enter into a direct transversal contract with National Treasury - a practice Dewrance said was prohibited by the Legal Practice Act and its code of conduct.

While the State Attorney was able to utilise the "cab rank rule" to ensure available advocates could be briefed relatively quickly, Dewrance said the limitation of state litigation work to a panel could potentially slow that process down, as there might be no panel advocates available to take on cases as they arose.

"It is ultimately the general public that will be prejudiced by the establishment of a panel.

"I can state that I have received numerous indications from the members of the GCB's constituent societies and AFT that they will not participate in the tender because to do so may amount to unethical conduct, conduct in breach of Bar rules and many of them in any event do not agree to be bound by a tariff and wholly irrational decision-making concerning the payment of fees, which has thus far marked the operation of the Office of the State Attorney," he added.

The tender also demands that referral advocates, who want to be appointed to the state's legal services panel, must obtain a certificate of good standing from the Legal Practice Council (LPC) - a requirement that Dewrance said was difficult to comply with, because the LPC was reportedly "not capable of providing these certificates on demand".