Legal Aid SA Handbook
(b) The aims of Legal Aid SA are to:
- Give legal aid or to make legal aid available to indigent persons within its financial means.
- Provide legal representation at State expense, as set out in the Constitution of the Republic of South Africa, 1996 (the Constitution) and relevant legislation giving content to the right to legal representation at State expense.
Legal Aid South Africa’s role is to provide legal aid to those who cannot afford their own legal representation. This includes poor people and vulnerable groups such as women, children and the rural poor.
It does this in an independent and unbiased manner with the intention of enhancing justice and public confidence in the law and administration of justice.
- Justice Centres
- Cooperation agreements
- Special litigation
- Other cost effective and efficient ways of accessing justice.
Access to justice is provided through Justice Centres. A Justice Centre works like a law firm, where legal aid applicants can go for legal assistance. Each Justice Centre has a principal attorney, who is the head of the Justice Centre, professional assistants, candidate attorneys, and paralegals. A Justice Centre offers legal assistance for defined criminal and civil matters. Services offered by Justice Centres include advice, referrals and litigation.
Legal Aid South Africa has cooperation agreements with various universities that have law clinics. Through the law clinics, the universities, in conjunction with the Legal Aid South Africa, provide legal assistance to their communities. Legal Aid South Africa currently has cooperation agreements numerous universities.
There are some special cases that, if taken to court and won, would have a major impact on the South African law. These types of cases often involve groups of people taking legal action together and therefore require special teams of legal representatives to assist them. The legal representatives may be from the Justice Centres or they may be private attorneys.
Legal Aid South Africa considers such cases strictly on a case-by-case basis and once certain criteria are met, then Legal Aid South Africa makes funding available from a special fund. The fund, which creates the capacity for the bringing of impact litigation, is particularly important against the backdrop of the Constitution, which, for the first time, introduced class actions in to the South African with respect to constitutional violations of the bill of rights.
Other cost effective and efficient ways of accessing justice
Over and above the other three methods, the Legal Aid South Africa continues to search for and explore other effective and efficient access to justice models. This is necessary as service delivery models of legal aid must be adapted and replaced over time in order to reflect changing contexts.
In 1997, Legal Aid South Africa decided to move towards a system of salaried legal practitioners as the primary means by which legal aid would in future be provided. In the last few years, Legal Aid South Africa has established at least 32 Justice Centres, which provide legal aid throughout the country.
The Justice Centres are usually near courts and each centre serves between 10 and 20 courts. Through its Justice Centres, Legal Aid South Africa provides legal aid to about 736,679 people throughout the country each year.
Although Legal Aid South Africa has a mandate to provide legal aid to anyone needing it, budget constraints, require that priority is given to those who are in real need.
Consequently, Legal Aid South Africa has decided, on criminal cases, that substantial injustice would result where an accused is not provided legal representation at the State’s expense in the following circumstances:
The accused cannot afford the cost of his or her own legal representation; and
The accused would, if convicted, probably receive a prison sentence of which the unsuspended portion would be more than three months, without the option of a fine, or if given the option of a fine, such fine would remain unpaid for two weeks after the imposition of the fine; and
If adequate legal representation would make a material difference to the prospects of the accused receiving a fair trial. In this regard, Legal Aid South Africa takes into account the personal circumstances of the person concerned, the nature and gravity of the charge(s), whether any other legal representation at State expense is available or has been provided.
In order to determine if a person can or cannot afford his or her own legal representation, Legal Aid South Africa uses the “means test”. A “means test” helps determine if a person qualifies for legal aid from Legal Aid South Africa. The main factor in the test is the income of the applicant. If his or her income exceeds the laid down requirements, he or she does not qualify for legal aid. The means test also considers both movable (cash and money-related assets) and immovable property. If the total of these assets is sufficiently large to cover the expected legal costs, legal aid will be refused even if the applicant has little or no income.
An applicant for legal aid must also show that he or she is a natural person and not a juristic person such as a company.
To determine if a person qualifies for legal aid in civil matters, the joint income and assets of an applicant and his or her spouse are taken into account. In calculating the applicant’s means:
- The joint income of the spouses is considered, except in divorce matters where only the income of the applicant will be considered.
- The joint income of spouses is considered where an application is made for legal aid for their dependent minor child.
- The income of the minor alone if he or she is self-supporting.
- The income of one parent who has children from a previous marriage if those children have not been legally adopted by the applicant’s present spouse and the application is made for legal aid for those children.
- The joint income of parents if legal aid is sought for a major who is still fully supported by his or her parents.
In determining whether a person qualifies for legal aid in criminal cases, Legal Aid South Africa first determines that an accused legal aid applicant is unable to afford the cost of his or her legal representation. If it is satisfied that the accused person cannot afford legal representation, Legal Aid South Africa then determines if the accused would, if convicted, probably receive a prison sentence of which the unsuspended portion would be more than three months, without the option of a fine, or if given the option of a fine, such a fine would remain unpaid for two weeks after the imposition of the fine. If it is convinced that the accused person will receive a prison sentence, then it will provide legal aid.
Companies do not qualify for legal aid
Close corporations and private companies do not qualify for legal aid, but companies registered in terms of Section 21 of the Companies Act of 1973 may qualify if they meet certain criteria.
Legal Aid South Africa provides legal aid to asylum seekers applying or intending to apply for asylum. The person-seeking asylum need not be ordinarily resident in South Africa. However, at the time of submitting their application for legal aid, he or she should be physically present in South Africa.
Withdrawal and refusal of legal aid
Legal aid ceases if the accused client fails to appear timeously in court on the appointed day without reasonable excuse. In such circumstances, the legal practitioner ceases to act for the accused.
To provide legal aid to:
- Children in civil matters affecting them where substantial justice would otherwise result;
- Every detained person (including sentenced prisoners);
- Every person who is accused of a crime;
- Those who wish to appeal or review a decision of court in a higher court.
- Women; particularly in divorces, maintenance, and domestic violence cases
- The landless, especially with regards to evictions.
Criminal cases given priority
Some of the common law offences covered by Legal Aid South Africa include:
- Assault with intent to cause grievous bodily harm
- Culpable homicide
- Indecent assault
- Public Violence
- Administering poison or other noxious substances
- Assault (including common assault)
- Defeating and/or obstructing the ends of justice
- Forgery and/or uttering
- Malicious injury to property
- Receiving stolen property
- Theft (including shoplifting)
- Unnatural sexual offences (including bestiality)
- Persons with mental disabilities
- Vehicle theft
- Any attempt to commit any of these listed statutory offences
Legal aid is not necessarily available for criminal defamation, public indecency and contempt of court. JCEs have a general discretion to grant legal aid in these cases where resources permit and where the JCE is convinced that the accused will experience substantial injustice if not legally represented.
Some of the statutory offences covered by legal aid include:
- Administration of justice
- Animal and nature conservation
- Counterfeiting currency
- Dealing in unwrought precious metals and uncut gemstones
- Escaping from custody and/or obstructing the police
- Vehicle theft
- And any attempt to commit the above.
The right to an appeal is an integral part of the right to a fair trial and, where substantial injustice would otherwise result, the accused is entitled to legal representation at State expense for the purpose of an appeal. This does not, however, mean that every accused person who is convicted is entitled to legal aid for the purposes of an appeal.
Legal Aid South Africa assists in providing legal reorientation provided certain conditions are met. For instance, the legal aid applicant must pass the means test.
Civil matters given priority
Legal Aid South Africa gives priority and provides legal aid for most civil matters.
However, it does not provide legal aid for the following civil matters:
- For the administration, voluntary surrender or sequestration of an estate or the liquidation of a legal person.
- In an action for damages on the grounds of defamation, breach of an engagement contract, infringement of dignity, infringement of privacy, seduction, adultery or inducing someone to desert or stay away from his or her spouse.
- For any action which the applicant may institute in a small claims court.
- In any civil appeal in which Legal Aid South Africa has not been satisfied that there are reasonable prospects of success and (where applicable) recovery. Arbitration, mediation, conciliation or any other form of dispute resolution. In matters where, in the opinion of Legal Aid South Africa, there is no substantial and identifiable material benefit to the client;
Divorce cases and family law matters
Legal Aid South Africa does not provide legal aid in a divorce case if:
- There is a reasonable possibility of reconciliation
- Proper and sufficient attention has not been given to settling the dispute
- Considering all the circumstances, it does not appear to be a deserving case.;
Legal Aid SA may grant legal aid for:
- Legal representation in Labour and Labour Appeal Courts
- Assistance to farm workers in finalising their rights under the Labour Relations Act 66 of 1995, as required under section 8(3) of the Extension of Security of Tenure Act 62 of 1997 (ESTA).
- Assistance to Legal Aid SA clients to enforce Commission for Conciliation, Mediation and Arbitration (CCMA) awards except where there is no prospect of recovery