Aid for the poor
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.
Civil matters
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.
Criminal cases
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.
Asylum seekers
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.