Chapter 5
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Applying for legal aid

If you cannot afford to pay for an attorney you can apply for legal aid (financial help for attorney’s fees) by applying to Legal Aid South Africa. Legal Aid represents in most criminal cases if the accused cannot afford a lawyer. Legal Aid can also represent in civil cases, however, the types of civil cases they represent in are very limited. You will have to pass a means (income) test to get Legal Aid which means you have to show that you earn less than an amount fixed by Legal Aid South Africa. If you qualify for Legal Aid, a Legal Aid attorney will be appointed for you and then Legal Aid South Africa will pay most of your attorney’s fees.
You cannot get legal aid for the following kinds of problems:

  • Traffic offences, such as driving, speeding or parking offences and drunken driving
  • Criminal cases if you are going to plead ‘guilty’
  • Defamation, or insults to your character
  • Where you are suing for money (damages) for relationship-related claims such as defamation, breach of promise to marry, infringement of dignity or privacy, seduction, adultery
  • Cases to prove a person is the father of another person’s child
  • Child maintenance cases which can be decided by a maintenance office
  • You can get legal aid for divorce cases, but not if:
  • There is a reasonable possibility that you might get together with your spouse again
  • There are no children involved in the divorce
  • You do not meet the means test
  • You can get legal aid for a labour matter:
  • If you are claiming unfair dismissal (you have been unfairly dismissed) as long as your claim is made within the time limits set by the Labour Relations Act
  • To demand a merit report (but legal aid will be refused if there are good reasons to believe you are not taking up a job on purpose or that you resigned from a job in order to be granted legal aid)

You can also get legal aid for appeals on all these types of cases listed, whether criminal or civil (cases where you are suing or being sued). For appeals, the Director must also believe that you have a reasonable chance of success.

MEANS TEST

In order to get legal aid you must pass the MEANS TEST.
The ‘means test’ means you have to show that you earn less than an amount fixed by Legal Aid South Africa. This amount varies if you are single or married and also changes with time. You also have to show that you don’t have any other ‘liquid assets’, such as money in a savings account which could be used to pay for your legal fees. If you earn more than the means test then you will not qualify for legal aid for your case. Your attorney or the legal aid officer will ask you questions about your wages. For purposes of the means test, your salary means net salary: the money that is left over after the following deductions are made:

  • Pension
  • Medical aid
  • Income tax
  • UIF

If a person is applying for legal aid for a divorce case then the person is treated as a single person for purposes of the means test.
Means test amounts:

  • Single persons who are employed and have a net monthly income of R8 700 or less can get Legal Aid . This amount is what the person receives after tax has been taken off.
  • An applicant who is part of a household and whose household has a net income of R9 500 per month or less can get Legal Aid. This amount is what the household receives after tax has been taken off, and
  • If the applicant or household owns immovable property (a house). The immovable property must not be worth more than R754 400. They must also only have one house and they must live in it.

These amounts are increased every few years, to keep up with the cost of living.

STEPS TO TAKE TO GET LEGAL AID

Go to a Legal Aid branch office or, if there is not one in your area, to the nearest Magistrate’s Court to enquire about legal aid. All magistrates’ courts have a legal aid officer who will help you with your legal aid enquiries.
The Legal Aid officer will check that you satisfy the means test and whether your matter falls within the scope of the guidelines set out by the Legal Aid Board. If you qualify, then you will be sent to an attorney, who will receive what is called a ‘legal aid instruction’ for your case. That attorney will then deal with your case. Attorneys do have a right to refuse a legal aid instruction, but they normally do not refuse. If they do refuse, a legal aid instruction can be made out to another attorney.