The Office of the State Attorney’s troubles are mounting after failing to overturn a ruling forcing the entity to pay a senior advocate R5 million due to an outstanding Special Investigating Unit (SIU) probe.
Earlier this month, the State Attorney’s Office was unsuccessful in its appeal of a South Gauteng High Court judgment forcing it to pay Viwe Notshe SC R5m.
The office refused to pay Notshe due to an ongoing SIU investigation into several payments.
IOL reported in October last year that the office would not pay because the SIU had not concluded its investigation and resisted paying because the unit had conducted an investigation into the payment of R27m worth of invoices Notshe previously submitted.
Notshe was among the evidence leaders during the Commission of Inquiry into State Capture chaired by retired Chief Justice Raymond Zondo.
In September, South Gauteng High Court Judge Stuart Wilson found that there was no basis on which to resist Notshe’s claim for payment based on invoices that are otherwise due and payable.
”If any of the R27m that has already been paid to Notshe subsequently becomes repayable, the State Attorney will have its remedies then,” the judge stated at the time.
Attempts by the State Attorney’s Office to challenge Judge Wilson’s ruling further exposed the challenges it faces.
The deadline to appeal the judgment was in October and in the following month, Notshe demanded payment of the debt or face execution but he was ignored.
In November, Notshe’s attorney issued a writ of execution, which is a court order instructing a sheriff to enforce a judgment by seizing and selling a debtor's assets to settle the debt.
The sheriff then attached a range of office equipment at the State Attorney’s Office.
However, the State Attorney still did nothing either to prevent the sale of its goods or to challenge Judge Wilson’s judgment.
In January this year, the sheriff took further action to garnishee the State Attorney’s bank account.
According to Judge Wilson, this finally forced the office to act and towards the end of January, it served its application for leave to appeal the judgment, forcing it to pay Notshe R5m as well as an application for condonation for filing late by just under four months.
The judge found that the State Attorney’s explanation for the delay was extremely poor.
The Office of the State Attorney explained that Solicitor-General Fhedzisani Spaniel's contract expired on September 30 last year and Mohube Phahlane took over in an acting capacity for six months, a period which ends on March 31.
The State Attorney’s Office also claimed Phahlane could not be expected to take steps to appeal the judgment in favour of Notshe so close to the end of her term.
It added that Phahlane experienced a backlog of matters when she took office in October 2024 and the leave taken by Johannesburg head of the State Attorney’s Office in December meant that she (Phahlane) could not consider the matter until mid-January this year.
Earlier this month, Justice and Constitutional Development Minister Mmamoloko Kubayi revealed that the State Attorney’s Office spent nearly R104.4m on outsourcing some cases to the country’s leading privately-owned law firms – Werksmans (R50.8m), Norton Rose Fulbright (R31m), Webber Wentzel (R23.8m), Bowman Gilfillan (R7m), Cliffe Dekker Hofmeyr (R5.1m), and Edward Nathan Sonnenbergs (R1.29m) – between 2019 and last year.
She said the State Attorney’s Office spent the bulk of the millions with R84.7m due to it being one of the largest handling most of the state litigation for national government departments.
Phahlane did not respond to questions on how the State Attorney’s Office is tackling the backlogs and why it is still hiring privately-owned law firms.