LEGAL AID BOARD
LEGAL AID GUIDE
2001
INDEX
5.1.8 Before a legal practitioner and/or advocate enters into or continues with litigation on a legal aid basis, he must satisfy himself that the client in a civil case has reasonable prospects of success.
5.1.9 A legal practitioner who has been briefed must not render assistance beyond the scope of his instruction and must not make applications (including Rule 43 applications) or institute actions which are additional to or beyond the main instruction without the written consent of the CEO. Legal aid beyond the initial scope of the instruction must be approved in advance by the CEO. Telephonic authorisation may be obtained for the proposed action in urgent circumstances but the obligation rests on the legal practitioner to confirm such authorisation in writing. Only then will the attainment of authorisation be deemed to be completed.
5.2 NOTICE THAT LEGAL AID IS BEING RENDERED
5.2.1 In civil matters, the legal practitioner must, on behalf of the Board, inform the opposing party and the registrar/clerk of the court in writing, in accordance with the provisions of section 8A of the Act, that aid is being rendered to the litigant by the Board and forward a copy of the notice to the CEO. The legal practitioner must also indicate on all pleadings that he represents a legal aid litigant. Failure to do this deprives the Board of its ability to recover costs in terms of the award, which are ceded to it in its own name, and may lead to severe losses on the part of the Board. It may also result in the legal practitioners appointed not receiving full payment of their fees. In a criminal matter, during the first appearance of the accused in court on legal aid, the legal practitioner/advocate must hand in a similar notice to court that the accused has received legal aid, provide the public prosecutor with a copy and forward a copy to the CEO. The Board shall be entitled, but not obliged, to suspend any payment to the legal practitioner concerned pending proof that this paragraph has been complied with. In both civil and criminal matters, the requisite notice must specify the legal aid instruction number to enable interested parties receiving such notice to correspond with the Board.
5.2.2 Should it come to the notice of a legal practitioner who has been instructed that the opposing party is also acting on legal aid, no further proceedings in the matter should be taken and he/she must notify the CEO immediately and furnish him/her with particulars. The CEO will decide whether and if so how legal aid shall be provided for the further prosecution of the matter.
5.3 REFERENCE IN CORRESPONDENCE
5.3.1 The applicant's surname and full names as they appear on the instruction form, the reference number of the legal aid officer and the reference number of the Board's head office, if known, must always be mentioned in correspondence. To merely refer to a matter as "Smit vs Smit' or to the minor on whose behalf the action is instituted, makes it impossible to trace the file and deal with any issue relating to it. When an account is rendered for payment, a copy of the instruction must accompany that account.
5.4 CORRESPONDENCE AND POSTAL MATTERS
5.4.1 Except where otherwise indicated in this Guide, a legal aid officer's task is completed after he/she has referred the applicant to a legal practitioner. Any other matter or problem, which the legal practitioner may experience thereafter which he/she cannot solve by reference to the provisions of this Guide, must be taken up with the CEO. In the same way, any queries or other issues related to the client must be reported directly to the CEO.
5.4.2 Documents must not be mailed by registered or certified post. Care must be taken that sufficient postage is affixed.
5.5 COPIES OF RECORDS AND DOCUMENTS
5.5.1 If copies of documents other than a record, or if in a civil matter a record, are essential to carry out the instructions of the Board, the instructed legal practitioner must obtain consent from the CEO to obtain such an item before he/she can recover the costs from the Board. When applying for consent a quotation relating to costs must be submitted. In the event of the cost of any such copies exceeding R100 in any one matter the consent of the CEO must be obtained in advance.
5.6 SUBSTITUTED SERVICE AND EDICTAL CITATION
5.6.1 If necessary, a legal practitioner who has been instructed may proceed by way of substituted service or edictal citation with the prior consent of the CEO.
5.6.2 By agreement with the Board, the Press Union of South Africa has recommended to its members that they publish advertisements in legal aid cases at a reduced tariff (welfare tariff). When applying for consent an estimate of the cost involved must be submitted. When an advertisement is submitted, it must be accompanied by a certificate from the legal practitioner concerned to the effect that it is a matter where the Board is rendering assistance to an indigent person as well as by a copy of the instruction form (LA 2A). A copy of the certificate must accompany the account for payment.
5.7 MEDICO-LEGAL SERVICES AND OTHER EXPERT WITNESSES
5.7.1 If the services of medical practitioners or other expert witnesses are required, a legal practitioner may obtain these with the prior consent of the CEO. In order to enable the CEO to consider the application, an estimate of the costs must accompany the application. Annexure J must be completed for this purpose. If more than one quotation for an expert cannot be obtained, or if only two quotations are obtainable, the reasons for furnishing only one or two quotations must be submitted.
5.7.2 The Medical Association of South Africa has recommended to its members that services in legal aid cases should be rendered at seventy five percent (75%) of the customary fees. This recommendation is contained in the minutes of a meeting held by the Federal Council of the Medical Association in May 1986. Whenever the services of medical practitioners are called upon in a legal aid case, the fact that the litigant is an indigent person assisted by the Board must be brought to the attention of the medical practitioner concerned. The medical practitioner's attention must be drawn to the recommendation of the Medical Association and a copy of the instruction form (LA 2-A) must accompany such notice. A copy of the aforementioned notice must accompany the account for payment.
5.7.3 The Board does not pay costs related to the medical treatment, operations or hospitalisation of the applicant, nor travelling costs for visiting medical practitioners, or the costs of client attending court. The Board renders and makes available legal services not financial aid.
5.8 TRACING AGENTS AND OTHER CONSUL-TANTS
5.8.1 The Board is not obliged to settle the expenses of tracing agents, investigators, claim consultants or persons who render services of a similar nature, unless such services and the maximum costs attached thereto have previously been approved in writing by the CEO.
5.9 WITHDRAWAL
Subject to paragraph 3.1.5.2, a legal practitioner acting in a legal aid matter may withdraw under the same circumstances under which he/she normally could have withdrawn, had it not been a legal aid matter. Such a withdrawal can result in considerable additional costs for the Board, owing to the fact that fresh instructions may have to be given to another legal practitioner. Thus, before a legal practitioner withdraws, the matter must be considered very thoroughly and the CEO must, where possible, be informed of the circumstances beforehand and must authorise any second or subsequent legal aid instruction before such is issued. A legal practitioner who contemplates withdrawing from a matter as a result of some avoidable act or omission on the part of the client must draw to the attention of the client the possible consequences of such act and wherever possible afford the client a reasonable opportunity to cure such act or omission. The legal practitioner must also explicitly draw to the attention of the client that he/she will not be entitled to appointment of a second or subsequent legal aid, legal practitioner as of right.
5.10 PROGRESS REPORTS
5.10.1 Except in simple matters and those that are resolved within three months of the instruction, the legal practitioner instructed shall advise the CEO on a four-monthly basis regarding the circumstances of the matter and its progress. Any information relevant to the disposal of the matter, its complexities, financial implications, settlement, limitation of proceedings or the like must be transmitted to the CEO whenever they arise.
5.10.2 A file is opened at the head office of the Board in respect of each judicare case in which legal aid is rendered and these files must from time to time be closed and destroyed. As soon as the necessary legal aid has been rendered to a person, or a matter becomes stale or for some other reason is disposed of, this fact must be reported to the CEO so that the matter may be finalised in accordance with the provisions of the Board.
5.10.3 If a legal practitioner who has been instructed on behalf of the Board does not submit a final account within six months from date of instruction or report four-monthly on the progress, he/she may be requested in writing to do so within twenty-one days. If a legal practitioner remains in default of compliance with such a request, the Board's file will be closed. It will be accepted, without waiver of any rights of the Board, that no moneys are owed to the legal practitioner.
5.10.4 At the end of any matter or when any interim order is granted the legal practitioner must submit a full report to the Board indicating the outcome of the matter or order and where appropriate, all issues relating to costs and the possibility of recovering costs and or enforcing an order.
5.10.5 In the event of the CEO entering into any arrangement with any legal practitioner in terms of which the practitioner is entitled to account to the Board monthly or at any other regular interval on account of the anticipated length and/or duration of the matter or for any other reason the legal practitioner shall provide a progress report in respect of the matter simultaneously with the rendering of each account.
5.11 POSSIBLE ABUSES AND INCURRING OF COSTS
5.11.1 It is important to ensure that as far as possible legal representation is offered to the indigent litigant. It is just as important that the principles and rules of this Guide are enforced so as to enable as many persons as possible to receive legal aid and to ensure that the system of legal aid and the Board are not brought into disrepute as a result of the conduct of legal practitioners contrary to the letter and spirit of this Guide. For these reasons, the Board reserves the right to terminate mandates to legal practitioners already in possession of instructions or to cease further mandates where these principles are disregarded or abused. In addition, the Board in appropriate instances may initiate disciplinary procedures with the relevant authorities. The Board also reserves the right to circulate to its various offices the names of legal practitioners disqualified from receiving instructions and to withhold payment of any moneys due to the legal practitioner in excess of reasonable fees and expenses.
5.11.2 Any person who is a party to any matter before any court in which any other party is receiving legal aid shall be entitled to complain to the CEO if he/she believes that he/she is personally able to depose to facts and/or produce documents and/or affidavits by other persons indicating or tending to indicate that the legal aid applicant does not or no longer qualifies for legal aid or in the event of a civil matter that the legal aid applicant lacks a reasonable prospect of success. All such complaints shall be on affidavit supported, if appropriate, by documents. The CEO shall ignore all anonymous complaints and shall invite all oral complainants to reduce their complaints to writing and to depose thereto. In the event of any complainant being illiterate the CEO shall make reasonable arrangements to assist the complainant in reducing his/her complaint to the form of an affidavit. On the receipt of any such complaint on affidavit, the CEO shall write to the legal practitioner representing the legal aid applicant providing a copy of the complaint received and affording the legal aid applicant a reasonable opportunity to reply thereto. On receipt of the legal aid applicant's reply, or after a reasonable time, if no reply is received, and after conducting such further investigations as are necessary, in the opinion of the CEO, the CEO shall decide whether legal aid is to be continued and shall advise the legal practitioner representing the legal aid applicant accordingly. In the consideration of any such complaint, the complainant shall bear the onus of proving on balance of probabilities that legal aid should be withdrawn. If the question to be considered is whether legal aid should be continued the CEO may, pending the finalisation of any investigation, elect to suspend legal aid if he/she is of the view that the complainant has a prima facie case for the withdrawal of legal aid. If the question to be considered is whether the mandate of a particular legal practitioner in a particular matter should be terminated or whether a particular legal practitioner should receive and/or be permitted to continue acting in respect of legal aid instructions at all the legal practitioner concerned shall bear the onus of proving on a balance of probabilities that he/she should continue with the matter, continue to receive legal aid instructions or continue with the conduct of legal aid instructions already accepted, as the case may be. No legal practitioner has a right to either receive or continue with any legal aid instruction in particular or legal aid instructions in general and the Board’s only obligation in the event of the terminating any legal aid instructions validly accepted shall be to pay the legal practitioner the fees and disbursements to which he/she is entitled in terms of this Guide within 30 days of the said legal practitioner having reported and accounted to the Board.
5.11.3 During the handling of legal aid matters, legal practitioners and advocates must at all times be on their guard against abuse of the Board's services by the legal aid applicant (from the commencement to the finalisation of a case). A considerable period may elapse from the commencement, and the applicant’s circumstances may change considerably during this time. Changes, which may affect the qualifications of a client for the continuation of legal aid, must be reported immediately to the CEO.
5.11.4 During subsequent interviews, the legal practitioner must establish from a client whether he/she continues to qualify for legal aid according to the means test. If he/she ceases to do so, the matter may not be proceeded with on a legal aid basis without the CEO's written consent. Any irregular obtaining or use of the Board's services, which may become known, must also be reported immediately.
5.11.5 The Board is financed, inter alia, from public funds and it is in the public interest that legal costs be kept as low as possible. Legal aid clients whose actions lead to unnecessary costs must be discouraged from doing so and problems in this regard must be brought to the CEO's attention immediately. (See subparagraph 5.12.3). No unnecessary costs will be permitted.
5.11.6 It is important to note that once legal aid has been granted to a client in a civil matter the costs aspect of the matter changes. The interest in costs is ceded to the Board together with a percentage of the proceeds of the action as determined by the Board from time to time - the Benefit. The client therefore has no further interest in the costs issue. The Board in terms of this Guide pays the attorney. The Board's interests must therefore continue to be considered and protected and the legal practitioners involved must see to the despatch and finalisation of the matter and ensure that proper consideration is given to the interests of the Board. Any attempt to bring the matter to finality, which has a direct or indirect impact on the Board's right to recover costs, must be referred to the CEO for prior consent before conclusion. An order or agreement that each party will pay its own costs, for example, must not be proposed, put forward or accepted without the consent of the CEO. An agreement that a party will pay his costs to the date legal aid was granted and thereafter each party will pay its own costs, is likewise unacceptable. Any action on the part of any legal practitioner acting in the matter, which would unnecessarily increase any legal costs without good cause, must be avoided. The Board reserves the right to refuse payment of any costs or charges occasioned in this manner.
5.11.7 If a matter is settled for a lump sum inclusive of costs or for a capital sum with a contribution towards costs the Board will interpret this and apply it so that the party and party taxed bill will be deemed to be included in this sum. The consequence is that these costs will have to be paid to the Board out of the proceeds together with the Benefit, on the balance referred to in paragraph 5.19. It is the duty of the legal practitioner to inform the client of this situation and to ensure that these sums are paid over to the Board.
5.11.8 The Board reserves the right to withhold settling any outstanding accounts due to legal practitioners until the provisions of paragraphs 5.11.6 and 5.11.7 have been complied with or any dispute resolved.
5.11.9 The CEO may, should the circumstances warrant such, seek confirmation from the presiding officer that the client was satisfactorily represented or that proper appearances in court took place and that no unnecessary postponements were obtained by the legal practitioner.
5.12 TENDERS, SETTLEMENTS AND PAYMENTS INTO COURT
5.12.1 A legal practitioner instructed in a civil or divorce matter may at his/her discretion negotiate a settlement and may also, with the consent of the CEO, waive a claim for costs or contribution towards costs. The provisions of paragraph 5.11 must however be complied with. If the CEO grants such authority telephonically, the legal practitioner must confirm the circumstances and the authority in writing. The rule in practice in litigation, namely "costs follow the unsuccessful party" must be borne in mind throughout.
5.12.2 Settlements for an all-inclusive amount (including costs) must be avoided as far as possible. Where this is not possible, the legal practitioner must inform the legal aid litigant that the costs to which the Board is entitled in terms of section 8A of the Act or otherwise were included in the lump sum and will be paid to the Board out of this sum. A party and party bill of costs must be drawn in order to determine the amount to which the Board is entitled and which will be deemed to be included in the lump sum.
5.12.3 If a legal aid litigant unreasonably refuses to accept a fair offer of settlement or insists on an exorbitant or unreasonable claim, the matter must be brought to the attention of the CEO who may terminate further legal aid in the matter. Such decision must not prejudice the client or the enforcement of claims for costs. The CEO shall however at all times during proceedings be entitled mero motu to consider possible settlement and if he/she is of the view that the client is acting in an unreasonable way, contrary to his/her approach, he/she can terminate or suspend further legal aid.
5.12.4 If a payment into court or an offer of settlement or a tender is made, the legal practitioner must immediately notify the CEO in writing and also furnish him/her with a full report on the merits of the matter and the issues relating to the tender/offer of settlement/payment into court. If legal aid is granted for a continuation of an action and a tender/offer of settlement/payment into court has already been made, the above mentioned provisions will apply mutatis mutandis.
5.13 BASIS OF REMUNERATION OF LEGAL PRACTITIONERS
5.13.1 The attorney accepting an instruction in a civil matter, and the attorney or advocate accepting an instruction in a criminal matter accept such instruction subject to the terms of this Guide and/or any directives made pursuant to it and subject specifically, without derogating from the generality of the aforegoing, to the Board's right to tax any fees list, account invoice or bill of costs rendered by such legal practitioner and its further right to delegate the taxation thereof to a person or persons of its choice and to check and revise such taxation. Such terms and conditions shall thereafter apply to all actions pursuant to the instruction and to settlement of any moneys due by the Board.
5.13.2 As soon as a civil and/or divorce matter has been finalised, whether by settlement, judgement by a court or otherwise, the legal practitioner must inform the CEO of any benefit obtained for an applicant and at the same time notify him/her of any costs recovered, or recoverable, in that matter. In the event of a criminal case the CEO shall also be informed of the outcome with all the other statistical information required by the Board from time to time. The legal practitioner submitting an account to the Board shall, save in respect of interim accounts for disbursements, account to the Board fully for all services rendered and all disbursement incurred and, where required, the disbursements shall be verified by original vouchers submitted to the Board simultaneously with the account of the legal practitioner. The Board is not obliged to consider for payment, claims for VAT or fees or disbursements or vouchers in respect thereof submitted by any person separately and/or after the legal practitioner instructed by the Board has first submitted his/her final account. Save where specific provision for the payment of interim fees and/or disbursements is made in this Guide each legal practitioner instructed by the Board shall only be entitled to account to the Board once only in respect of any particular legal aid matter. This shall not preclude reasonable reminders in respect of overdue accounts by the legal practitioner instructed by the Board but legal practitioners are required to refrain from subsequently submitting copies of accounts save when specifically requested to do so.
5.13.3 Subject to the provisions of subparagraphs 5.13.7, 5.13.8 and 5.13.9 a legal practitioner instructed shall be remunerated in accordance with the tariffs of fees contained in Annexures E.1, E.2, E.3, E.4, F.1, F.2, F.3, F.4 and F.5. No additional moneys may be received directly or indirectly by him/her from the client or from any other source in respect of the period after the inception of legal aid. In this context, "received" shall include monies deposited to a trust account. Such conduct constitutes unethical conduct on the part of the legal practitioner and may be referred to the appropriate Law Society for investigation.
5.13.4 If costs are awarded in the matter, the terms of section 8A of the Act apply and if it appears that such costs can be recovered or can be readily paid by the opposing party, a party and party bill of costs must be drawn and taxed, except where otherwise indicated, and the taxed amount must be recovered from the opposing side by the legal practitioner. The full advocate's fees and disbursements must be included in the bill of costs and not merely the amount due by the Board.
5.13.5 Whenever any costs or benefits are recoverable, the legal practitioner shall advise the CEO to obtain instructions, if necessary, for execution of the order. The legal practitioner however shall take all necessary and reasonable steps to protect the financial interests of the Board. A legal practitioner who recovers the costs can deal with them in one of the following ways:
5.13.5.1 He/she may recover his fees and disbursements from the costs, if any, recovered from the other party and pay over the balance recovered to the Board together with the bill taxed against the other party and his/her own account in accordance with the current legal aid tariff.
5.13.5.2 He/she may submit an attorney and client bill of costs in accordance with the current legal aid tariff to the Board and set off the amount of legal costs, if recovered, in full. (The provisions of sub-paragraph 5.13.6 must be considered). No additional fees may be received or retained by the legal practitioner. The legal practitioner instructed at the same time shall furnish the Board with the appropriate taxed bill of costs or a photocopy thereof.
5.13.6 If the briefing of an advocate has been authorised by the CEO the advocate must furnish his/her account to the legal practitioner who must submit the advocate's account with his/her account to the Board so that all the bills may be dealt with simultaneously. It is not possible to finalise one bill in isolation. Attorneys must inform the instructed advocate of this. (See also paragraph 5.13.13).
5.13.7 When legal costs are not recovered or are not recoverable or where the amount recovered is not sufficient to cover the legal costs and the Benefit to the Board, the legal costs or the balance thereof including disbursements and the Benefit as the case may be, must be recovered from the financial benefit received by the client. The amount of legal costs and the Benefit to the Board to be recovered from the financial benefit may not exceed 50% of the financial benefit to the client. Annexure H.1 and H.2 may be consulted for examples of the necessary calculations. For the convenience of legal practitioners obliged to account in respect of legal aid instructions issued prior to 1st November 1999, Annexure H.1 and H.2 hereto illustrate the calculations appropriate in respect of matters finalised on or before 31 October 1999. The calculations in respect of matters finalised after that date, particularly matters commenced and finalised after 1st November 1999, are very much simpler.
5.13.8 Where a settlement has been negotiated (see paragraph 5.12) and it is a provision of the settlement that the litigant will be awarded his/her party and party costs without taxation, or in place thereof a lump sum with or without a contribution to costs, the provisions of subparagraphs 5.11.5, 5.13.5 and 5.13.6 shall apply mutatis mutandis, and when accounting, the CEO must be provided with a copy of the agreement.
5.13.9 The legal practitioner must not, without the authority of the CEO, permit the payment of more than 50% of the financial benefit to client until clarity has been achieved on the recoverability of the costs awarded. It may be necessary to retain part of the award to cover part of his/her costs or disbursements or the Benefit to the Board out of the financial benefit of the client. The Board will settle any costs due to him/her. The legal practitioner must ensure that all amounts due to the Board as costs or Benefit are recovered and paid over to the Board.
5.13.10 The traditional relationship between the legal practitioner and advocate continues to exist when legal aid has been granted except where in criminal matters the advocate receives a direct instruction.
5.13.11 Advocates doing legal aid work, like attorneys, are remunerated in accordance with annexures E.1, E.2, E.3, E.4, F.1, F.2, F.3, F.4 and F.5.
5.13.12 The Board reserves the right to make representations to the relevant bar association on any aspect relating to advocates' fees or particular items of fees or to bring to the attention of any member of the bar any information which may be relevant or essential in determining fees.
5.13.13 An attorney instructed by the Board may not, without the approval of the CEO, brief counsel to do the work which he/she was instructed to do.
5.13.14 In cases where an advocate is instructed the legal practitioner must ensure that the advocate's account is submitted to the Board, together with his/her own account so that a proper evaluation of both accounts and the total costs of the case can take place. (See also paragraph 5.13.6)
5.13.15 The legal practitioner must furthermore ensure that the advocate's account is in accordance with the prescribed tariff.
5.14 THE RELATIONSHIP BETWEEN THE BOARD AND THE LEGAL PRACTITIONER’S SUB-CONTRACTORS
5.14.1 The legal practitioner who instructs a subcontractor, whether with or without the consent of the CEO, acts as a principal and not as the agent of the Board.
5.14.2 Where in a legal aid matter a legal practitioner instructs an advocate, a correspondent, a sheriff, an expert or any other subcontractor, whether with or without the consent of the CEO, no contractual nexus thereby comes into being between the Board and the said subcontractor.
5.14.3 While the CEO is entitled to authorise payment to a subcontractor directly, such authority is rarely given and then only when the CEO is satisfied that the legal practitioner concerned has not paid the subcontractor concerned and that it would be in the interests of the Board so to act.
5.14.4 The Board pays the legal practitioner with whom it has contracted or that legal practitioner’s executor, trustee or liquidator as the case may be. Save as previously mentioned, the Board is only obliged to pay any person other than the legal practitioner with whom it contracted pursuant to an order of a competent count.
5.14.5 Attorneys who dissolve partnership and/or change the name under which they practise should take care to ensure that before the partnership is dissolved or the name is changed, as the case may, the partnership/ practise gives written consent to the CEO, signed by the individual practitioner required to carry out the instruction, as to the person to be paid in respect of fees and disbursements prior to date of dissolution/ change of name. The CEO will elect whether to pay the legal practitioner/practise originally instructed or whether to pay the person designated by the legal practitioner concerned. Any consent by the CEO to pay a legal practitioner/practice other than that originally instructed shall operate only in respect of fees and disbursements acquired prior to dissolution/change of name. A new instruction must be sought and obtained in respect of the continuation of the matter on a legal aid basis after dissolution/change of name.
5.15 CESSION OF COSTS
5.15.1 Section 8A of the Act provides that when costs become payable to the litigant in a lawsuit in respect of which legal aid is rendered to the litigant, the litigant concerned is deemed to have ceded his/her rights to those costs to the Board.
5.15.2 A legal representative who has been instructed in a civil or divorce matter, may during the hearing, with the prior consent of the CEO, waive a claim for costs if the other party is unable to pay the costs or make a contribution towards costs or to make another agreement relating to costs. The CEO must be fully informed of all relevant information and if he/she grants authority telephonically, the legal practitioner shall confirm all the circumstances in writing with the CEO forthwith.
5.16 RECOVERY OF COSTS
5.16.1 The CEO may give instructions that attempts be made to recover costs to which the Board may be entitled. (See paragraphs 5.12 and 5.13). If the necessary requirements have been complied with, the costs must be recovered in the Board's name. (See section 8A (1), (2) and (3) of the Act).
5.16.2 A legal practitioner who recovers costs in the Board's name, may in his/her discretion accept reasonable instalments and pay these over when a reasonable amount is available. The legal practitioner must submit reports to the Board at not more than six monthly intervals.
5.16.3 The legal practitioner without prior consent from the CEO may initiate no Section 65 steps.
5.17 DISBURSEMENTS
5.17.1 Disbursements amounting to not less than R500,00 in any one matter may be claimed periodically from the Board before the finalisation of a case. Accounts in this regard cause a considerable amount of extra work in the Board's head office and should only be submitted if the disbursements are an excessive burden for the legal practitioner.
5.17.2 The payment of any interim fees or disbursement will not be construed to constitute an admission by the Board that such amount was indeed payable and the Board reserves the right to deduct any overpayment or any payment made in error at the final accounting and reconciliation stage.
5.18 LEGAL PRACTITIONER'S ACCOUNTS
5.18.1 An account as described in paragraphs 5.13.3 and 5.13.5 must be itemised and dated and where a fee is calculated on a time basis or per folio, the time and number of folios must be stipulated.
5.18.2 All accounts, including interim accounts, must be submitted in triplicate.
5.18.3 Where a legal practitioner who has been instructed has briefed a correspondent, or an advocate, or made use of the services of an expert witness, he/she must indicate in his/her account the amounts owing to such a person and attach such person's account in triplicate to his own as a voucher. The legal practitioner who has been instructed must ensure that the correspondent's account has been duly specified and dated and that the items claimed correspond with the prescribed tariff.
5.18.4 If a legal practitioner's account is in order, the Board will pay the legal practitioner who has been instructed and he/she in turn must pay the correspondent or advocate or witnesses, if any. The Board shall pay the advocate his/her fees directly where the Board has given a direct instruction to the advocate. The Board in its discretion may pay the advocate directly, in respect of provisional payments during litigation proceedings. The Board will only settle other accounts of advocates as provided in paragraph 5.13.6 save where the CEO authorises the direct payment of any advocate.
5.18.4.1 No compensation will be paid for negotiations with the Board for legal aid to a client, related consultations with the client with the aim of rendering legal aid, correspondence with the legal aid officer or the Board's head office or CEO, perusing documents or making or receiving telephone calls in this connection or fees and/or disbursements incidental to the aforegoing.
5.18.4.2 No compensation will be paid for any negotiations towards establishing the legal practitioner's willingness to accept a particular case or for perusing the Board's instruction(s).
5.18.4.3 The Board will only accept liability for costs incurred as from the date of the Board's instruction, as indicated on the instruction form (LA 2), and not from the date of negotiation with the client or the legal aid officer for the rendering of legal aid. In exceptional cases the CEO, however, may authorise payment of legal costs incurred before date of instruction.
5.18.4.4 The date on which any action was taken must be indicated against the account item concerned.
5.18.4.5 Where an all-inclusive fee for an item is allowed in the tariff, (for example in respect of letters and telephone calls) no allowance will be made for disbursements.
5.18.4.6 Where legal aid is granted to more than one litigant in any one matter by the instruction of any one legal practitioner/ practice no additional fees shall be allowed save as provided in Annexure E.2.
5.18.4.7 The Board does not accept liability for the travelling or subsistence expenses of anyone to whom aid is rendered by the Board. Reasonable travelling expenses, the loss of wages and accommodation of a necessary witness (other than the legal aid litigant himself/herself) in a civil case, however, may be claimed.
5.18.4.8 The Board does not accept liability for the costs involved in tracing witnesses or opposing parties unless with the prior approval of the CEO.
5.18.4.9 The Board does not accept liability for any costs or any other amounts awarded against an unsuccessful legal aid litigant on any grounds whatsoever, during the course of proceedings. The legal aid officer and the legal practitioner appointed by the Board must convey this information to the client.
5.18.4.10 No fees other than those laid down in the tariffs will be allowed. The CEO, however, does have the discretion to permit payment of limited increased fees in very exceptional cases. Full details must be submitted to the CEO when seeking this benefit. This authority shall be exercised by the CEO personally and shall not be delegated to any subordinate although the CEO shall be entitled to be advised in relation thereto by his/her subordinates.
5.18.5 If a legal practitioner's account is correct, the Board will, after taxation, checking and authorisation thereof, pay the legal practitioner to whom instruction was given and the legal practitioner must pay the correspondent, advocate and witnesses, if necessary. Neither the legal practitioner nor his/her subcontractors will receive notice of the taxation of their accounts nor will they be entitled to be present thereat. However:
5.18.5.1 A legal practitioner is entitled to submit to the Board with his/her account any written representations he/she may wish to make to the CEO in relation to the taxation of his/her account and/or the taxation of the account of his/her subcontractor(s).
5.18.5.2 Every account taxed by a servant and/or agent of the Board is checked by at least one other person.
5.18.5.3 Legal practitioners who are not satisfied with the taxation of their accounts are entitled to follow to procedure set out in paragraph 5.18.7 below.
5.18.6 Mistakes in a legal practitioner's account or items not allowed will be recorded either on the duplicate of the account or on a separate invoice/tax invoice and the duplicate of the account/tax invoice together with the Board's cheque will be forwarded to the legal practitioner by the Board.
5.18.7 If any dispute sounding in money arises after date of implementation of the Guide between the Board and any legal practitioner concerning the non payment of fees and/or disbursements and/or the under payment of fees and/or disbursements and/or the erroneous payment of fees and/or disbursements and/or the partial over payment of fees and/or disbursements and/or the misrepresentation and consequent over payment of any fees and/or disbursements to which any legal practitioner is entitled, then and in that event if efforts to resolve any dispute by negotiation have failed, then either party:
5.18.7.1 May declare a dispute within 30 days of such dispute arising, or within 30 days of the issue in dispute having come to the knowledge of the aggrieved party, by delivering the details of the dispute to the defaulting party within 30 days after declaring the dispute, and;
5.18.7.2 May request that the dispute be referred by the parties, with legal representation, to arbitration by a single arbitrator at a place and time determined by him/her.
5.18.7.3 Such arbitration shall be conducted in the province where the legal practitioner practices and at Pretoria or Johannesburg or Pietersburg or Witbank or Potchefstroom or Cape Town or Port Elizabeth or Kimberley or Bloemfontein or Durban. A single arbitrator shall conduct such arbitration at the Board’s office in the abovementioned city (in respect of the use of which no charge shall be levied) and shall be:
5.18.7.3.1 Selected by mutual agreement between the parties, or failing such agreement;
5.18.7.3.2 Nominated on the application of either party by the chairperson for the time being of the Association of Arbitrators.
5.18.7.4 At all times, every reasonable effort shall be made to ensure that such arbitrator has the necessary technical skills to enable him/her to adjudicate the dispute in a satisfactory manner.
5.18.7.5 The award of the arbitrator shall be final and binding on the parties, who hereby agree to give effect to the award. If the amount awarded by the arbitrator in any arbitration proceedings contemplated in terms of this paragraph 5.18.7:
5.18.7.5.1 is equal to or exceeds the amount last claimed by the claimant as at the date when the time, place and venue of the arbitration was communicated to all parties for the first time, costs of the arbitration, including the costs of the arbitrator, shall be warded against the defendant;
5.18.7.5.2 is equal to or less than the aggregate of the amounts paid on account and offered, whether with or without prejudice and whether on account or in full and final settlement, by the defendant as at the date when the time, place and venue of the arbitration was communicated to all parties for the first time, costs of the arbitration, including the costs of the arbitrator, shall be awarded against the claimant;
5.18.7.5.3 is less than the amount so claimed by the claimant, but exceeds the aggregate of the amounts so paid on account and offered by the defendant, so much of the costs of the claimant shall be awarded against the defendant as bears to such costs the same proportion as the difference between the amount so awarded and the aggregate of the amounts so paid on account and offered, bears to the difference between the amount so awarded and the amount so claimed.
The provisions of this paragraph 5.18.7.5 above shall apply mutatis mutandis to a claimant in reconvention and a defendant in reconvention.
The arbitrator shall have a discretion to deviate from paragraphs 5.18.7.5.1, 5.18.7.5.2 and 5.18.7.5.3 above where in his opinion the conduct of the claimant was either vexatious or pettifogging in that the quantum of the costs exceed the amount in dispute.
The arbitrator will, when making an award of costs, specify the particular amount to be paid to him/her by each party and the tariff on which any costs payable to any other party is to be calculated. The arbitrator will also either himself/herself tax any bill of costs in respect of an arbitration of if there is a dispute as to the correct quantum thereof or will specify a willing and able person to undertake such taxation.
5.18.7.6 Either party shall be entitled to have the arbitrator’s award made an order of court at the cost of the party requesting it.
5.18.7.7 The arbitration shall be held in accordance with procedures to be determined by the arbitrator. The arbitration shall be conducted in an informal and summary manner and shall be held as quickly as possible with a view to it being completed within 90 days of the appointment of the arbitrator.
5.18.7.8 In the event of a dispute, both parties shall proceed to perform in accordance with their contractual obligations with due diligence pending resolution of the dispute, subject to the provision of paragraph 5.18.9 below.
5.18.7.9 This paragraph 15.8.7 is severable from the rest of the contract between the Board and the legal practitioner and shall remain in effect if the contract is terminated.
5.18.7.10 Unless and until the arbitration provided for by this paragraph 15.8.7 has been held and determined, both the Board and the legal practitioner shall be barred from instituting any civil legal proceedings sounding in money against one another in any court in respect of the non payment of any fees and/or disbursements and/or the under payment of fees and/or disbursements and/or the partial over payment of fees and/or disbursements and/or the erroneous over payment of fees and/or disbursements and/or the misrepresentation and consequent over payment of any fees and/or disbursements to which the legal practitioner is entitled.
5.18.8 Pending finalisation of any dispute relating to account items referred to in paragraph 5.18.7 or any ethical or disciplinary matter pursuant to such dispute, the Board shall be entitled to withhold payment of all and any moneys due to such legal practitioner.
5.18.9 Save as set out in paragraph 5.18.10 below, no fees and disbursements shall be payable by the Board to a legal practitioner unless and until:
5.18.9.1 The matter has been finalised; and
5.18.9.2 Any reports on the outcome of the matter, as required by the Guide, have been submitted to the Director, and
5.18.9.3 An account drawn in accordance with the requirements of the Guide has been submitted to the CEO, and
5.18.9.4 All requisite documents and vouchers have been received by the Board; and
5.18.9.5 The Board has been afforded 30 calendar days, to tax, check, approve and process payment to the legal practitioner concerned.
5.18.10 Subject to the submission of any report required and paragraphs 5.18.9.3 to 5.18.9.5 above, fees and disbursement may be claimed by a legal practitioner prior to the finalisation of a matter if:
5.18.10.1 paragraph 5.17.1 is applicable, or
5.18.10.2 the CEO, in the exercise of his discretion, has granted his/her consent to the payment of an advance in respect of anticipated disbursements exceeding R500,00 relating to anticipated expenditure other than in respect of the fees of any person; or
5.18.10.3 the CEO, in the exercise of his/her discretion, has granted his/her consent to the payment of interim fees and disbursements on account of the anticipated duration of the matter and/or the extent to which such will occupy the professional time of the legal practitioner concerned.
5.18.11 Express provisions of the contract that comes into being between a legal practitioner and the Board, when notice of the acceptance of a legal aid instruction reaches the CEO in Pretoria, are that any legal practitioner who, save with the written consent of the CEO:
5.18.11.1 fails to include a prayer for costs in any process, including any counterclaim, by which litigation is initiated; or
5.18.11.2 enters into any agreement of settlement or permits the legal aid applicant to enter into any settlement which expressly or by necessary implication waives the Board's rights in terms of Section 8A of the Act; or
fails to take any steps prescribed in the Guide or customary in litigation to protect the Board's rights to costs or anticipated costs;
shall be liable to the Board in damages in his/her personal capacity. The Board shall be absolved from the payment of any fees and/or disbursements otherwise payable to the legal practitioner and/or his/her firm/practice/ partnership/ employer/company until such damages have been determined. The Board shall be entitled to set off any fees and disbursements due to the legal practitioner and/or his/her firm/practice/ partnership/employer/ company against any damages to the Board.
COMPULSORY CONTRIBUTION TO THE LEGAL AID FUND
5.19.1 When a litigant who is being assisted by the Board obtains a financial benefit as a result of a settlement or judgement during any stage after legal aid was granted to him/her, the representative must deduct a percentage of the benefit as determined by the Board from time to time and laid down in terms of Annexure I from the financial benefit and pay it to the Board irrespective of whether legal costs have been recovered or not. This sum is known as the Benefit to the Board. If the provisions of paragraph 5.13.7 are applicable, the Benefit to the Board is to be calculated on the balance of the financial benefit to client after deduction of any costs included in a lump sum award. See Annexures H.1 and H.2 for examples of possible calculations.
5.19.2 When legal aid is granted in any civil matter, the legal aid officer must ensure, before the legal aid instruction is forwarded to the legal practitioner instructed, that the legal aid applicant undertakes, in writing, that the Board and the legal practitioner are thereby irrevocably authorised, and the latter is instructed to:
5.19.2.1 give notice to any other party to the litigation or contemplated litigation concerned, that any payment is to be made only to the legal practitioner instructed, or in the event of his/her withdrawal, to the Board, and not to the legal aid applicant; and to;
5.19.2.2 receive any amount due to the legal aid applicant as a result of any court order or settlement and retain all amounts in respect of costs and 50% of any other amounts until the indebtedness of the legal aid applicant to the Board has been determined and discharged; and to;
5.19.2.3 pay to the Board all amounts due to the Board including the Benefit to the Board calculated in accordance with the provisions of the Guide, and that the legal aid applicant undertakes not to personally seek payment of any amount claimed in terms of the litigation or contemplated litigation and to immediately pay over any amount received on account of such litigation or contemplated litigation to the legal practitioner instructed or, in the event of his/her withdrawal, to the Board.
5.19.3 The legal aid officer shall ensure that the provisions of the prescribed written undertaking is signed by the legal aid applicant and is understood by the legal aid applicant.
5.19.4 The original of such written undertaking shall be attached to the LA 2C forwarded to the CEO while a copy thereof shall be, attached to LA 2A forwarded to the legal practitioner instructed.
5.20 SECURITY AND COURT FEES
5.20.1 Subject to the provisions of paragraph 5.20.2, a client is exempted in certain circumstances from the obligation to furnish security for the costs of an opposing party and to pay certain court fees. In this regard reference is made to rule 47A of the Uniform Rules, rule 6(6) of the Rules of Supreme Court of Appeal, rules 51(1) and 51(4) of the Magistrate's Court Rules, and the rules of the Divorce Court. If any sum is required to be deposited as security, legal aid must not be granted until it is, clear that the client has the means to make payment of such security. The Board does not advance monies for this purpose.
5.20.2 Legal aid litigants (as in the case of in forma pauperis litigants) may be compelled to furnish security in terms of section 14(4)(b) of the Motor Vehicle Accident Act, 1986 (Act 84 of 1986).
5.20.3 Legal practitioners should note the effect of Mthetwa and Others, V. Diedericks and Others 1996(7) BCLR 1012 (N) on the requirement of security for costs set out in Magistrate's Court Rule 49(1).
5.20.4 The Board will not provide funds for the purposes of furnishing security if it is in fact required.
5.21 POSTPONEMENTS
5.21.1 It is the duty of every legal practitioner acting on behalf of the Board to ensure that the matter is dealt with expeditiously. Every effort must be made to avoid any delay or postponement in prosecution of the matter. Consequently, postponements must be avoided. In particular, the right of an accused to a withdrawal of the charge or to have the trial proceeded with must be enforced. On the other hand, the duty to provide proper representation applies to the legal practitioner. He/she must ensure that he/she supplies adequate and proper representation and that he/she does not curtail his/her assistance for the sake of expediency.
CHAPTER 6
VALUE ADDED TAX - SELF-INVOICING
6.1 The Board is registered as a vendor for VAT.
6.2 To facilitate the issuing of VAT invoices for the correct amount the Board has obtained permission from the Commissioner for Inland Revenue to make use of the self-invoicing method in terms of the Value Added Tax Act, 1991 (Act 89 of 1991).
6.3 Legal practitioners who are registered as vendors for VAT must not issue tax invoices, debit or credit notes to the Board in respect of fees, but must furnish a statement instead, on which they also quote their VAT registration number.
6.4 Once the statement has been taxed, the Board will issue a tax invoice on behalf of the legal practitioner. The original will be forwarded to the legal practitioner together with its remittance and the Board will retain a copy for its records.
6.5 Legal practitioners must account to the Receiver of Revenue for the VAT per the tax invoices provided by the Board.
6.6 Legal practitioners who are not registered as vendors for VAT will continue to invoice the Board as before stating on the invoice that they are not registered for VAT.
6.7 The system of self-invoicing has been implemented as follows:
6.7.1 From 2 January 1997, all new legal aid instructions have been issued on new forms incorporating the self-invoicing system and the Board makes all payments under these provisions.
6.7.2 All outstanding fee accounts which could to be finalised by 31 March 1997, and which were issued under the old system were finalised under the previous system.
6.7.3 All other accounts are dealt with under the new system of self-invoicing and the Board arranged with legal practitioners in instances in which instructions were given prior to 2 January 1997, to consent to the system of self invoicing. Where instructions were issued after 1 January 1997, legal practitioners consented to the self-invoicing system by virtue of their acceptance of such instructions.
6.8 Any vendor who wishes to be paid VAT by the Board must annually, on or before 31st January in each calendar year, furnish to the Board a certified copy of his/her/their/its VAT registration certificate together with a written undertaking to forthwith advise the Board should the vendor de-register as a VAT vendor at any time.
CHAPTER 7
GENERAL
7.1 DISCRETIONARY POWERS OF THE CEO
7.1.1 The CEO has a general discretionary power with regard to the administration of the legal aid scheme as prescribed by the Board from time to time. This discretion must be exercised on reasonable grounds. The CEO may not waive any provision of the Guide requiring him to report to the Board, nor may he/she waive the provisions of this paragraph 7.1. The CEO may also not waive any limitations in respect of the maximum (increased) judicare fees in respect of any class of work.
7.1.2 Delegation of powers of the CEO.
7.1.2.1 Save as set out below: The CEO may in writing, delegate any powers vested in him/her by this Guide to other officers or agents of the Board and may further delegate to the said officers or agents the authority to further delegate.
7.1.2.2 The CEO may be advised on, but shall not delegate:
7.1.2.2.1 The authority to authorise special fees in terms of paragraph 2 of Annexure E.2;
7.1.2.2.2 The authority to authorise increased fees in terms of paragraph 5 of Annexure E.3;
7.1.2.2.3 The authority to authorise increased fees in terms of paragraph 2 of Annexure E.4;
7.1.2.2.4 The authority to authorise increased fees in terms of paragraph 7 of Annexure F.2; and
7.1.2.2.5 The authority to authorise the reinbursement of travel within a magisteral district in terms of paragraph 1.6 of Annexure F.3. However, having authorised the reimbursement of travel within a particular magisteral district the CEO is not thereafter required to personally authorise each and every travel claim.
7.1.2.2.6 The authority to authorise the conduct of any Hague Convention matter on a legal aid basis.
7.2 GENERAL
7.2.1 The Board revises its scheme periodically and suggestions in connection with possible solutions to problems and improvement of the practical operation of the scheme are welcomed. Legal practitioners must submit their suggestion to their respective Law Societies and Bar Councils for transmission to the Board.
7.2.2 The Board may amend this Guide, the Annexures thereto and the tariffs set out in Annexures E.1 to F.5 hereto periodically to cater for increases in the cost of living, new types of work to be conducted on a legal aid basis, the elimination of abuses and the clarifiction of uncertainties. Such amendments to the Guide shall be set out in a circular approved by the Board and signed by the CEO.
7.2.2.1 In the case of legal practitioners the circular shall be distributed to the Law Societies of the Northern Provinces, the Cape of Good Hope, the Free State and Kwa-Zulu/Natal, the General Council of the Bar of South African, the Criminal Law Bar of South Africa and the Association of Independent Advocates of South Africa before the date on which the amendments therein set out come into operation.
7.2.2.2 The contents of any circular shall be incorporated in the Guide when such is next submitted to the Minister of Justice in terms of Section 3A(2) of the Act as it is about to be amended by Section 2 of the Legal Aid Amendment Act No. 20 of 1996, failing which such amendments shall lapse on the date on which the Guide is next ratified by the National Assembly.
7.2.3 The rendering of legal aid for certain services may be suspended by the Board from time to time, and the Board may also from time to time institute restrictions on legal costs in certain matters.
7.3 COMMENCEMENT
7.3.1 This Guide is called the Legal Aid Guide, 2001 and comes into operation on the date on which Section 2 of the Legal Aid Amendment Act, No 2 of 1996 comes into operation.
This Guide replaces the ninth edition of the Legal Aid Guide issued in January 1996 and all circulars up to and including Circular 1of 2001.
ANNEXURE A.2
LEGAL AID AMENDMENT ACT NO. 20 OF 1996
[ASSENTED TO 10 APRIL, 1996]
[DATE OF COMMENCEMENT TO BE PROCLAIMED]
(English text signed by the President)
ACT
To amend the Legal Aid Act, 1969, so as to amplify the objects and powers of the Legal Aid Board; to make provision for a Legal Aid Guide; to determine guidelines for granting legal aid; and to provide that the Legal Aid Act, 1969, shall apply throughout the Republic; to repeal corresponding laws in the former independent states; and to provide for matters connected therewith.
1. Amendment of section 3 of Act 22 of 1969, as amended by section 1 of Act 47 of 1989.
Section 3 of the Legal Aid Act, 1969 (hereinafter referred to as the principal Act), is hereby amended-
(a) by the substitution for the words preceding paragraph (a) of the following words:
"The objects of the board shall be to render or make available legal aid to indigent persons and to provide legal representation at State expense as contemplated in the Constitution, and to that end the board shall, in addition to any other powers vested in it by this Act, have power-"; and
(b) by the insertion after paragraph (d) of the following paragraph:
"(dA) to provide, subject to section 3A (3), legal representation at State expense as contemplated in section 25 (1) (c) and (3) (e), read with section 33 (2), of the Constitution, where substantial injustice would otherwise result;".
2. Insertions of section 3A and 3B in Act 22 of 1969.
The following sections are hereby inserted in the principal Act after section 3:
"Legal Aid Guide
3A (1)(a) Subject to the provisions of this act and in order to attain its objects and to exercise its powers referred to in section 3 (d) and (dA), the board shall, in consultation with the Minister, include particulars of the scheme under which legal aid is rendered or made available and the procedure for its administration in a guide called the Legal Aid Guide.
(b) The provisions of the Legal Aid Guide shall be binding upon the board, its officers and employees.
(2) The board shall, in addition to the submission of its annual report as contemplated in section 9(11), submit the Legal Aid Guide at least once every year to the Minister and the Minister shall forthwith cause the Legal Aid Guide to be tabled in the National Assembly and the Senate for ratification, and pending such ratification the Legal Aid Guide then in operation shall continue to apply.
(3) Whenever the board considers an application for the rendering of legal aid, other than a matter referred to the board in terms of section 3B (1), and whether the application is made in terms of section 25 (1) (c) or (3) (e) of the Constitution or otherwise, the board shall apply the provisions of the Legal Aid Guide.
Direction for legal aid by court in criminal matters
3B (1) Before a court in criminal proceedings directs that a person be provided with legal representation at State expense, the court shall-
(a) take into account-
(i) the personal circumstances of the person concerned;
(ii) The nature and gravity of the charge on which the person is to be tried or of which he or she has been convicted, as the case may be;
(iii) whether any other legal representation at State expense is available or has been provided; and
(iv) Any other factor which in the opinion of the court should be taken into account; and
(b) refer the matter for evaluation and report by the board.
(2) (a) If a court refers a matter under subsection (1) (b), the board shall, subject to the provisions of the Legal Aid Guide, evaluate and report on the matter.
(b) The report in question shall be in writing and be submitted to the registrar or the clerk of the court, as the case may be, who shall make a copy thereof available to the court and the person concerned.
(c) The report shall include-
(i) a recommendation whether the person concerned qualifies for legal representation;
(ii) particulars relating to the factors referred to in subsection (1) (a) (i) and (iii); and
(iii) Any other factor, which in the opinion of the board should be taken into account.
3. Amendment of section 4 of Act 22 of 1969, as amended by section 2 of Act 47 of 1989, section 1 of Act 1 of 1991 and section 9 of Act 139 of 1992.
Section 4 of the principal Act is hereby amended by the addition to subsection (1) of the following paragraph:
"(g) no more than six members appointed by the President in consultation with the Cabinet."
4. Amendment of section 5 of Act 22 of 1969.
Section 5 of the principal Act is hereby amended by the substitution for subsection (2) of the following subsection:
"(2) The chairperson of the board may at any time, and shall at the request in writing of not less than eight members of the board, convene a special meeting of the board, to be held at such time and place as he or she may determine."
5. Amendment of section 6 of Act 22 of 1969.
Section 6 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection:
"(1) The quorum at any meeting of the board shall be eight members thereof.".
6. Extension of Application of Act 22 of 1969.
The Legal Aid Act, 1969, shall apply throughout the Republic.
7. Repeal of laws and savings
(1) The laws referred to in the Schedule are hereby repealed to the extent indicated in the third column thereof.
(2) Any person on the fixed establishment of a Legal Aid Board established in terms of a law repealed by subsection (1) shall, without interruption of service, on the date of commencement of this Act, and subject to the conditions of employment and remuneration approved by the Minister of Justice in terms of section 8 of the principal Act, become an employee of the Legal Aid Board established by section 2 of the principal Act: Provided that the board may recommend to the Minister concerned that a person retain in full or in part a particular term or condition of employment that is more favourable than any term or condition of employment determined in terms of section 8, if there are special circumstances which justify such retention: Provided further that any such retention of a more favourable term or condition of employment shall not continue for more than 12 months after the date of such recommendation.
(3) If, for the purpose of subsection (2)-
(a) the question arises whether any person performs functions pertaining to a Legal Aid Board; or
(b) Any question arises in connection with the determination of conditions of employment or remuneration,
it shall be determined by the Minister of Justice.
(4) All assets, including funds and administrative records, rights, duties and liabilities which immediately prior to the commencement of this Act vested in the a Legal Aid Board established in terms of a law repealed by subsection (1) shall, on the date of commencement of this Act devolve upon the Legal Aid Board established by section 2 of the principal Act.
8. Short Title and Commencement.
This Act shall be called the Legal Aid Amendment Act, 1996, and shall come into operation on a date fixed by the President by proclamation in the Gazette.
SCHEDULE
Laws repealed by Section 7
|
Number and Year of Law |
Short Title |
Extent of Repeal |
|
Act No. 22 of 1969 |
Legal Aid Act, 1969 |
The whole |
|
Act No. 2 of 1973 |
Transkei and Legal Aid Act, |
The whole |
|
Act No. 39 of 1978 |
General Law Amendment |
Section 12, 13, |
|
Act No. 8 of 1982 |
Legal Aid Amendment Act, |
The whole |
|
Act No. 13 of 1983 |
Legal Aid Act, 1983 (Venda) |
The whole |
|
Act No. 8 of 1988 |
Legal Aid Act, 1983 (Bophuthatswana) |
The whole |
|
|
General Law Amendment Act, 1988 (Bophuthatswana) |
Section 5 |
ANNEXURE A.3
COMMENCEMENT OF THE LEGAL AID AMENDMENT ACT,
1996 (ACT NO 20 OF 1996)
|
SECTION |
DATE |
|
1(a) amends Sect 3 of principal act |
17 October 1997 |
|
1(b) inserts (dA) in Sec 3 of the principal act |
Not yet in operation |
|
1. Insertion of Sect 3A in principal act |
To be proclaimed after |
|
2. Insertion of Sect 3B in principal act |
Not yet in operation |
|
3. amends Sect 4 of principal act |
1 October 1998 |
|
4. amends Sect 5 of principal act |
1 October 1998 |
|
5. amends Sect 6 of principal act |
1 October 1998 |
|
6. extension of application throughout RSA |
1 April 1998 |
|
7. Repeal of laws and saving |
1 April 1998 |
|
8. Short title and commencement |
10 April 1996 |
ANNEXURE B.1
Legal Aid Board Justice CENTRES
|
CLINIC |
PRINCIPAL |
POSTAL ADDRESS |
STREET ADDRESS |
TEL NO |
FAX NO |
|
A lexandra Community Law Clinic |
Ms Mavis Monama |
PO Box 2287 |
Oliver Tambo Community Centre |
(011) 8851954 |
(011) 8871911 |
|
A thlone Justice Centre |
Ms Mirriam Noor |
PO Box 166 |
1st Floor |
(021) 697-5252 |
(021) 6975316 |
|
B enoni Justice Centre |
Ms Salma Mahomed |
PO Box 2972 |
No 2 Grandway Bld |
(011) 8454311 |
(011) 4211082 |
|
B loemfontein Clinic |
Mr. Pieter Nel |
PO Box 9899 |
Sondagskool Gebou |
(051) 4479915 |
(051) 4472106 |
|
C ape Town Justice Centre |
Mr. Kobus Esterhuizen |
5 Church Street |
5 Church Street |
(021) 4264126 |
(021) 4265766 |
|
D urban Justice Centre |
Mr. Kishore Mehta |
PO Box 4397 |
Tower C |
(031) 3043290 |
(031) 3043564 |
|
E ast London Clinic |
Mr. Mac Jeram |
PO Box 7570 |
Room 215/216 |
(043) 7437122 |
(043) 7438488 |
|
E mpangeni Clinic |
Mrs. Romola Rapiti |
PO Box 38 |
Suite 3 |
(035) 7924949 |
(035) 7924954 |
|
G ermiston Justice Centre |
Mr. Motlatsi Molefe |
PO Box 4302 |
10th Floor |
(011) 8257836 |
(011) 8257987 |
|
G rahamstown Justice Centre |
Ms Bettina Wyngaard |
PO Box 105 |
109 Carlton Centre |
(046) 6229350 |
(046) 6228873 |
|
J ohannesburgJustice Centre |
Mr. Ben Pienaar (Office Manager) |
PO Box 62378 |
1st Floor |
(011) 8386655/8 |
(011) 8387018 |
|
K imberley Justice Centre |
Mr. Zacharia Mashilo |
PO Box 846 |
3rd Floor |
(053) 8322348 |
(053) 8322356 |
|
M itchell’s Plain Justice Centre |
Mr. Julian Thops |
PO Box 327 |
Shop 70 |
(021) 3741171/2 |
(021) 3749955 |
|
P huthaditjhaba Justice Centre |
Mr Thembile Mtati |
PO Box 15585 |
FDC Office Block E |
(058) 713-4953 |
(058) 713-5002 |
|
P ietermaritzburg Legal Clinic |
Mr. Bertus Appel |
Suite 173 |
1st Floor |
(033) 3942190 |
(033) 3422576 |
|
P ietersburg Justice Centre |
Mr. Tommy Phalatse |
PO Box 1314 |
1st Floor |
(015) 2912429 |
(015) 2912455 |
|
P ort Elizabeth Justice Centre |
Mr. Patrick Hundermark |
PO Box 3433 |
1st Floor |
(041) 4842724 |
(041) 4873335 |
|
P otchefstroom (Potchefstroom) (Potch II) Legal Aid Clinic |
|
PO Box 1447 |
c/o Van der Hoffweg and Meyer Streets |
(018) 2930045 |
(018) 2977425 |
|
P otchefstroom (Vereeniging) (Potch I) Legal Aid Clinic |
Ms Elzane Botha |
PO Box 3948 |
1st Floor |
(016) 4213527 |
(016) 4214287 |
|
P otchefstroom (Witbank) (Potch III) Legal Aid Clinic |
Mr. Rodney Mashego |
PO Box 4373 |
Room 121 |
(013) 6565290 |
(013) 6565291 |
|
P retoria Justice Centre |
Mr. Jannie Kriel |
PO Box 1281 |
2nd Floor |
(012) 3284612 (012) 3284673 |
(012) 4615549 |
|
R oodepoort Justice Centre |
Mr. Kobus Boshoff |
PO Box 1380 |
23 Dumat Street |
(011) 7602003 |
(011) 7602040 |
|
S oweto Office of the Public Defender |
Mr. Maishume Mzaidume |
PO Box 392 |
Nicro Centre |
(011) 9865005/ |
(011) 9865172 |
|
S tellenbosch Legal Clinic |
Ms Cordelia Robertson |
44 Banhoek Street |
44 Banhoek Street |
(021) 8083700 |
(021) 8083720 |
|
V enda Legal Aid Clinic |
Mr. Sam Negota |
P/Bag X5050 |
University of Venda |
(0159) 9628000 |
(0159) 624749 |
|
W itwatersrandLegal Aid Clinic |
Ms Shirley Welsh |
Private Bag 3 |
1 Jan Smuts Avenue |
(011) 7178562 |
(011) 3392640 |
ANNEXURE B.2
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(As at 19 February 2002) |
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BRANCH OFFICE |
HEAD OF OFFICE |
POSTAL ADDRESS |
STREET ADDRESS |
TEL NO |
FAX NO |
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Bloemfontein |
Mrs. Fouché |
PO Box 3816 |
1st Floor |
(051) 4470902 |
(051) 4474745 |
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East London |
Ms A Jonker |
P/Bag X9010 |
Magistrate's Office |
(043) 7420245 |
(043) 7432796 |
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Mafikeng |
Mr. Ntsimane |
P/Bag X2125 |
1st Floor |
(018) 3816120 |
(018) 3811542 |
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Pietermaritzburg |
Mr. Linda Mandlakazi |
PO Box 84 |
Room 246, |
(033) 3944810 |
(033) 3423359 |
ANNEXURE C
MEANS TESTS
C.1 MEANS TEST FOR LEGAL AID OTHER THAN IN TERMS OF THE CONSTITUTION - see also Annexure G.1
C.1.1 SINGLE PERSONS AND ESTRANGED SPOUSES
A person with a calculated income not exceeding R600.00 per month, together with an addition thereto of R180.00 per dependent child, qualifies for legal aid.
C.1.2 MARRIED PERSONS
A married person with a calculated joint income not exceeding R1 200.00 per month together, with an addition thereto of R180.00 per dependent child, qualifies for legal aid.
C.2 MEANS TEST FOR LEGAL AID IN TERMS OF SECTION 35 (3) (g) AND 35 (2) (c) OF THE CONSTITUTION
See paragraph 2.6 and Annexures G.2 and G.3
ANNEXURE D
The Regional Land Claims Commissioner
___________________________ Region
Address: __________________________
__________________________
__________________________
Date: ___________________
To: The Legal Aid Board ________________________
_________________________________________
_________________________________________
_________________________________________
Dear Sir,
Re: LEGAL AID APPLICANT:______________________
CLAIM NO: _________________________________
The above person(s)/community/organisation has submitted a claim to the above office of the Commission on the Restitution of Land rights under the above claim number.
The attempted mediation of the claim has not resulted in a satisfactory settlement thereof and the matter is now ripe to proceed to the Land Claims Court in an action in which the parties will be:
Plaintiffs: ________________________________________________
________________________________________________
________________________________________________
Defendants: ________________________________________________
________________________________________________
________________________________________________
________________________________________________
D-1
The Commission has determined that it would be advantageous for the claimants/applicant to enjoy legal representation in the proceedings before the Land Claims Court and;
1. * (Where the claimant/applicant is a natural person) you are requested to determine whether the claimant/legal aid applicant qualifies for legal aid in terms of the means test set out in the Legal Aid Guide and, if appropriate, to issue a suitable legal aid instruction to an attorney.
2. * (if the claimant/legal aid applicant is a community or organisation) the Commission has determined that the claimant/legal aid applicant is unable to afford the cost of his own legal representation before the Land Claims Court and you are requested to issue a suitable legal aid instruction in favour of an attorney.
Yours faithfully,
_________________________________
LAND CLAIMS COMMISSIONER
* Delete whatever is inapplicable.
ANNEXURE E.2
FEES AND DISBURSEMENTS PAYABLE TO LEGAL PRACTITIONERS IN RESPECT OF CRIMINAL APPEALS
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Appeals to the High Court from the Magistrates’ Court |
Appeals to the Supreme Court of Appeal or full bench of the High Court |
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The Director has a general discretion to agree to special fees in circumstances, which justify deviation from the above tariff.
With effect from 1 April 2001 a surcharge of 10% will be permitted on the fees allowed in terms of paragraphs 1.1 to 1.14 above.
ANNEXURE E.3
TARIFFS IN RESPECT OF CRIMINAL TRIALS
1. For appearing before any court when a postponement is granted at the request of the State, a fee of R90,00 excluding VAT shall be allowed.
2. For appearing before court and any other professional services incidental thereto on any trial day a legal practitioner shall be entitled to the following fees:
District Magistrates’ Court R600,00 excluding VAT.
Regional Magistrates’ Court R710,00 excluding VAT.
High Court R820,00 excluding VAT.
3. In the event of the duration of a trial day not amounting in aggregate to 4 hours the trial day fee set out above shall be reduced pro rata provided that in respect of any trial day a minimum of R90,00 excluding VAT shall be allowed.
4. No additional fees will be permitted in respect of any trial day lasting in excess of four hours or in respect of any preparation, consultation, waiting time, perusal or any other attendance whatsoever. The fees set out in paragraph 2 above are all inclusive fees and save as set out below, no additional fees will be permitted. No additional fees will be permitted in respect of a legal practitioner who represents more than one accused.
5. Only in very exceptional circumstances will any increased fees be permitted. In the event of increased fees being authorised, such shall not exceed R2000,00 per trial day excluding VAT. In considering whether or not to grant increased fees, the CEO of the Board shall take no account per se of the number of charges faced by the accused or the number of accused in the matter. In highly rare and very exceptional circumstances, the CEO of the Board may authorise the instruction of a second legal practitioner to assist the legal practitioner who appears at the trial at 60% of the fees allowed to the first legal practitioner. In no circumstances will a third legal practitioner be permitted in respect of any accused or group of co-accused who are represented by a single legal team.
6. In matters that were part heard as at 1 November 1999 and in which increased fees had been allowed prior to 1 November 1999 the CEO shall enjoy a discretion, to be exercised after consideration of written representations, to permit the matter to continue at the increased fees authorised prior to 1 November 1999 where it would be in the interest of the administration of justice and of the Board to do so.
7. A legal practitioner submitting an account to the Legal Aid Board may be required to attach to such account a certificate by the presiding judicial officer or his/her registrar (if any) verifying the appearances and times set out in the legal practitioner’s account. The said certificate is currently required in respect of all criminal trials in the High Court but is not currently required in respect of criminal trials in the magistrates’ courts.
8. It shall be the responsibility of the legal practitioner upon submitting his/her account to ensure that the Board is placed in possession of all documentation that will enable it to pay the legal practitioner’s account. Provided this requirement is fully and properly complied with, the Legal Aid Board will attempt in respect of High Court Criminal trials to dispatch a cheque in payment of the said account within 30 days of receipt thereof or, in the event of electronic bank transfers being implemented by the Board, to instruct its bankers to effect payment.
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9. Bail and other interlocutory applications, subject to the submission by the practitioner of written representations: |
District and District and Regional Courts: |
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9.1 As to why it was necessary, if applicable, to bring the application on a date prior to the next scheduled hearing; |
All-inclusive fee for all attendances. |
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9.2 As to why, if the bail application was unsuccessful, the practitioner believed that such enjoyed a reasonable prospect of success; |
Opposed: R350,00 |
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9.3 As to why, in the case of inter-locutory applications other than bail applications, such application was necessary; |
High Court : Bail application if done other than on day of postponement or trial day.All-inclusive fee for all attendances. |
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and further subject to not more than one bail application per accused per case. |
Unopposed: R250,00 |
Under no circumstances will any collapse/reservation/ cancellation/waiting time fees be paid by the Board to any legal practitioner in respect of any criminal matters, criminal appeals, civil matters, matters in terms of the Criminal Law Amendment Act, 1997 or any other matters whatsoever. The Board will pay legal practitioners in accordance with its tariffs strictly according to services rendered and in so far as the applicable tariff makes provision for the service rendered.
After the case has been finalised the legal practitioner must report to the Director in writing setting out the following information:
11.1 The case number.
11.2 The court where the matter was heard.
11.3 The outcome of the matter.
11.4 The duration of the hearing.
11.5 Any other material information.
12. After the case has been finalised and whenever a legal practitioner accounts to the Board in respect of a criminal trial the account shall be submitted in the format set out and with all the requested information and certification provided for in Annexure K.
13. A legal practitioner who is appointed on a legal aid basis to represent an accused at a criminal trial after the accused has pleaded and after evidence has been led and if such legal practitioner was not present when such evidence was led, shall be entitled to apply to the trial court for the provision to such legal practitioner at the expense of the Department of Justice of a copy of a transcript of the evidence led in his/her absence and, if such application is granted, to peruse such transcript. The following fees exclusive of VAT will be allowable in the above mentioned circumstances:
13.1 Application for a transcript of the evidence R37,50
13.2 Perusal of the record 50c per page
ANNEXURE F.1
TARIFFS OF FEES PAYABLE IN RESPECT OF CIVIL MATTERS AND DISBURSEMENTS GENERALLY
A. With regard to legal aid instructions issued prior to 1 April 1988 legal practitioners shall be remunerated in accordance with the provisions and tariffs as set out in the fifth edition of the Guide of July 1983.
B. With regard to legal aid instructions issued from 1 April 1988 legal practitioners shall be remunerated in accordance with the provisions and tariffs as set out in the sixth edition of the Guide of April 1988.
C. With effect from 1 July 1993 legal practitioners will be remunerated in accordance with the tariffs as set out in the seventh edition of the Guide of July 1993 as amplified by any new tariffs authorised by the Minister of Justice or circulated by the CEO with the consent of the Board from time to time.
D. With effect from 1 January 1996 attorneys shall be remunerated in accordance with the provisions and tariffs as set out in the eighth edition of the Guide of January 1996 as amplified by any new tariffs authorised by the Minister of Justice or circulated by the CEO with the consent of the Board from time to time.
E. With effect from 1 January 1995 attorneys shall be remunerated in accordance with the provisions and tariffs as set out in the ninth edition of the Guide of January 1995 as amplified by any new tariffs authorised by the Minister of Justice or circulated by the CEO with the consent of the Board from time to time.
F. With effect from 1 November 1999 legal practitioners will be remunerated in accordance with the tariffs set out in circulars 4 and 5 of 1999.
G. With effect from 1 April 2001 legal practitioners will be remunerated in accordance with Annexures F.2, F.3, F.4 and F.5.
F.1-1
ANNEXURE F.2
TARIFFS IN RESPECT OF CIVIL MATTERS
1. In respect of taking instructions and submitting a report on the merits of the matter to the head office of the Legal Aid Board a legal practitioner shall be entitled to a fee of R110,00 excluding VAT.
2. After having been authorised to proceed with a matter on a legal aid basis and in respect of the drawing and settling of all pleadings, in respect of motions (other than interlocutory motions) the drawing and settling of all affidavits, the issue of process and all correspondence, attendances, perusals and consultations relevant thereto, including the conclusion of any settlement agreement and the taking of any judgement by default or consent but excluding necessary disbursements in respect of revenue stamps and sheriff’s fees:
In a Magistrates’ Court or any other Lower Court:
R440,00 excluding VAT.
In any Division of the High Court or in the Land Claims Court or the Labour Court: R660,00 excluding VAT.
3. In respect of all pre-trial consultations, correspondence, attendances and other necessary pre-trial work but excluding any disbursements authorised by the Legal Aid Board in respect of the fees of experts:
In the Magistrates’ Court and any other Lower Court:
R440,00 excluding VAT.
In any Division of the High Court or in the Land Claims Court or in the Labour Court: R660,00 excluding VAT.
4. On trial or opposed motion (other than an interlocutory motion) including any correspondence, consultations, attendances, perusals and all other work conducted after the commencement of the trial:
In the Magistrates’ Court or any other Lower Court:
R660,00 per trial day excluding VAT.
In any Division of the High Court or in the Land Claims Court or in the Labour Court: R820,00 excluding VAT per trial day.
5. On appeal to a Division of the High Court or to the Labour Appeal Court or to the Constitutional Court or to the Supreme of Appeal:
R1100,00 excluding VAT.
6. The fees set out in this Annexure F.2 are all inclusive fees and no other fees by any attorney or advocate in respect of any work performed on or after 1 November 2001 pursuant to any legal aid instruction issued at any time whatsoever will be allowed.
7. Only in very exceptional circumstances will any increased fees be permitted and then only in respect of the trial day/appeal fees set out in paragraphs 4 and 5 above. In the event of increased fees being authorised, such shall not exceed R2000,00 per trial day/appeal excluding VAT. In considering whether to grant increased fees, the CEO shall take no account per se of the number of claims dealt with in the matter or the number of litigants involved in the matter. In highly rare and very exceptional circumstances, the Chief Executive Officer of the Legal Aid Board may authorise the instruction of a second legal practitioner to assist the legal practitioner who appears at the trial/on appeal at 60% of the trial day fees/appeal fees allowed to the first legal practitioner. In no circumstances will a third legal practitioner be permitted in respect of any litigant or group of litigants who are represented by a single legal team.
8. In the event of the duration of a trial day not amounting in aggregate to four hours the trial day fees set out above shall be reduced pro rata provided that in respect of any trial day a minimum of R90,00 excluding VAT shall be allowed.
9. No additional fees will be permitted in respect of any trial day lasting in excess of four hours or in respect of any intra trial preparation, consultation, waiting time, perusal or any other attendance whatsoever. The fees set out in this Annexure F.2 are all-inclusive fees and save as provided for in paragraph 7 above no additional fees will be permitted. No additional fees will be permitted in respect of a legal practitioner who represents more than one litigant in any particular matter.
10. Uniform Rule 43 applications including any disbursements in respect of correspondents and counsel.
Undefended R380,00 excluding VAT
Defended R520,00 excluding VAT
ANNEXURE F.3
DISBURSEMENTS
The following disbursements shall be allowed over and above the fees set out in Annexures E.2, E.3, E.4, F.2, F.4 and F.5.
The fees of any expert authorised by the Legal Aid Board at the rate so authorised and to the extent of any maximum authorised.
Necessary revenue stamps.
Necessary sheriff’s fees or like process (edictal citation). Necessary advertisement costs pursuant to the grant of a substituted service order.
Necessary travel outside of any magisterial district in which the legal practitioner concerned has an office: R1,50 per kilometre excluding VAT or economy class air fare, whichever is the lesser.
Where it is necessary for a legal practitioner to hire accommodation for himself/herself at the seat of a court more than 117 kilometres from his/her offices/chambers the Board shall, subject to the submission of supporting vouchers, reimburse such legal practitioner in respect of accommodation and subsistence at the actual cost thereof not exceeding R350,00 (excluding VAT) per night.
The CEO, if it appears to him/her to be in the interests of the administration of justice and the Board, be entitled to authorise the reimbursement of necessary travel within a particular magisterial district by legal practitioners practising in that magisterial district at R1,50 per kilometre excluding VAT or economy class air fare, whichever is the lesser.
Save as set out above, no other disbursements, including, but not by way of limitation, counsel’s fees and correspondent’s fees shall be paid to any legal practitioner without the prior written consent of the CEO of the Board or any Principal Attorney, Legal Administration Officer, Senior Legal Administration Officer or Principal Legal Administration Officer delegated by the CEO of the Board to make such decision on his/her behalf.
ANNEXURE F.4
TARIFF OF FEES APPLICABLE TO DOMESTIC VIOLENCE AND MAINTENANCE MATTERS
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ANNEXURE F.5
TARIFF OF FEES APPLICABLE TO ASYLUM MATTERS, HAGUE CONVENTION MATTERS AND OTHER MISCELLANEOUS MATTERS
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1. ASYLUM MATTERS: |
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1.2 For appearing before a Refugee Status Determination Officer at a hearing in terms of Section 24 of the Refugees Act. |
R600,00 excluding VAT per hearing day subject to a minimum of R90,00 excluding VAT. |
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1.3 For appearing before a Standing Committee in respect of a Review in terms of Section 25 of the Refugees Act. |
R600,00 excluding VAT per hearing day subject to a minimum of R90,00 excluding VAT. |
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1.4 For appearing before an Appeals Board in respect of an Appeal in terms of Section 26 of the Refugees Act. |
R600,00 excluding VAT per hearing day subject to a minimum of R90,00 excluding VAT. |
1.5 In event of the duration of a hearing before a Refugee Status Determination Officer, or before a Standing Committee or before an Appeals Board no amounting in aggregate to four hours the maximum hearing day fee set out above shall be reduced pro rata.
HAGUE CONVENTION MATTERS:
2.1 The fees payable to legal practitioners in terms of Paragraphs 1 to 9 of Annexure F.2 to this Guide shall apply mutatis mutandis to matters in terms of the Hague Convention on the Civil Aspects of International Child Abduction Act No. 72 of 1996 and the schedule thereto ("the Hague Convention").
2.2 The disbursements payable to legal practitioners in terms of Annexure F.3 to this Guide shall apply mutatis mutandis to matters in terms the Hague Convention.
MISCELLANEOUS MATTERS:
3.1 The Board shall be entitled by resolution to alter and/or amend the tariffs set out in Annexures E.1 to E.4 and F.1 to F.5 to this Guide.
3.2 Such amendment shall be incorporated in a circular under the signature of the CEO and shall be distributed, inter alia, to the Law Societies of the Northern Provinces, the Cape of Good Hope, the Free State and Kwa-Zulu/Natal, the General Council of the Bar of South Africa, the Criminal Law Bar of South Africa and the Association of Independent Advocates of South Africa.
3.3 Such amendments shall come into operation on a date not earlier than the date on which the circular in question was received by the professional bodies listed in paragraph 3.2 above.
LEGAL AID BOARD LA 13A
MEANS TEST
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Office: |
Applicant: |
Ref No: |
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A. GROSS MONTHLY INCOME |
APPLICANT |
SPOUSE |
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Salary |
R |
R |
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Allowances + |
R |
R |
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Subsidy + |
R |
R |
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Bonuses + |
R |
R |
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Interest + |
R |
R |
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Rentals + |
R |
R |
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Maintenance received + |
R |
R |
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Other + |
R |
R |
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TOTAL = |
R + |
R = |
R |
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B. ASSETS |
APPLICANT |
SPOUSE |
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Fixed property: Reasonable market value |
R |
R |
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Less Bonds - |
R |
R |
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Sub-total = |
R |
R |
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Investments & Savings + |
R |
R |
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Monies due to applicant + |
R |
R |
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TOTAL NET VALUE = |
R |
R |
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DIVIDE BY 120 = |
R + |
R = |
R |
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C. TOTAL GROSS MONTHLY INCOME (Totals A + B) = |
R |
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D. DEDUCTIONS |
APPLICANT |
SPOUSE |
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Income Tax |
R |
R |
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Unemployment Insurance Fund + |
R |
R |
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Compulsory group insurance + |
R |
R |
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Medical fund contribution + |
R |
R |
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Pension fund contribution + |
R |
R |
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Rent or mortage instalment (Max R1 000) + |
R |
R |
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Maintenance i.t.o court order + |
R |
R |
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School fees (Not i.r.o private schools) + |
R |
R |
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TOTAL DEDUCTION = |
R + |
R = |
R |
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E. CALCULATED MONTHLY INCOME (TOTALS C – D) = |
R |
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Less rebates: R600,00 for applicant - |
R600,00 |
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R600,00 for spouse (if applicable) - |
R |
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R180,00 per dependant child (R180,00 x …) - |
R |
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TOTAL (No legal aid in case of a PLUS-balance) = |
R |
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Dependants actually supported by the applicant |
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Name: |
Age: |
Name: |
Age: |
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Name: |
Age: |
Name: |
Age: |
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Name: |
Age: |
Name: |
Age: |
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Complete details of my salary, property and all other income and assets are correctly set out above. All details of my expenses are correctly set out. I actually and regularly pay all the deductions listed above on a monthly basis. I realize that if any of the information set out above is false or incomplete, legal aid will be suspended immediately, and I will be prosecuted for fraud.
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Location: |
Applicant: |
Ref No: |
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Applicant |
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GROSS INCOME: MONTHLY |
Salary |
R |
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Plus |
Allowances |
+ R |
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Plus |
Subsidy |
+ R |
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Plus |
Bonuses |
+ R |
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Plus |
Interest |
+ R |
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Plus |
Rentals |
+ R |
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Plus |
Other |
+ R |
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TOTAL = |
R |
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PLUS: PROPERTY |
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IMMOVABLE: Reasonable market value |
R |
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Less bonds |
- R |
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= R |
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OTHER PROPERTY: Bank balances & savings |
+ R |
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Investments & Deposits |
+ R |
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Monies due to Applicant |
+ R |
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NET value |
= R |
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Divide by 120 |
R |
+ R |
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GROSS INCOME = |
= R |
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DEDUCTIONS |
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Income Tax |
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Unemployment Insurance |
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Compulsory Group Insurance |
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Medical Fund Contribution |
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Pension Fund Contribution |
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Rent or mortage instalment (Max R1 000) |
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Maintenance in terms of court order |
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School fees & Contributions *** |
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*** Not applicable to private schools TOTAL DEUCTIONS = |
- R |
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Calculated Income > |
= R |
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Deduct R600 for Applicant |
- R |
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SUB-TOTAL |
= R |
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Deduct R180 per dependant child (if applicable) … x R180 = |
- R |
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= R |
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Dependants actually supported by the applicant |
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Name |
Age |
Name |
Age |
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Name |
Age |
Name |
Age |
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Name |
Age |
Name |
Age |
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Complete details of my salary, property and all other income and assets are correctly set out above. All details of my expenses are correctly set out. I actually and regularly pay all the deductions listed above on a monthly basis. I realize that if any of the information set out above is false or incomplete, legal aid will be suspended immediately, and I will be prosecuted for fraud.
Date: ………………………………… Signature of applicant: ……………………………..
Date: ………………………………… Legal Aid Officer: …………………………………..
ANNEXURE G3
LA 13C
APPLICATION FOR THE PROVISION OF LEGAL REPRESENTATION AT STATE EXPENSE IN TERMS OF SECTION 35(3)(g) OF THE CONSTITUTION
PARTICULARS OF APPLICANT'S INCOME AND EXPENDITURE
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BRANCH OR MAGISTRATE’S OFFICE |
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REFERENCE NUMBER .....................………………………. |
NAME OF APPLICANT ...................................................………………….CO-ACCUSED.................................................................………………….. |
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NATURE OF CHARGES(S) :If more than one record, total: ................................................……. ................................................……. ................................................……. |
COMPLEXITY .........................................................................................………………….. .........................................................................................………………….. ........................................................................................…………………… |
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CASE NUMBER .....................………………………. |
IN WHICH COURT WILL TRIAL TAKE PLACE :Supreme Court/Regional Court/District Court* (Delete those inapplicable) ANTICIPATED DURATION OF THE TRIAL: ...............................……………………………………………………………. |
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INCOME AND ASSETS |
EXPENDITURE AND LIABILITIES |
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1. INCOME |
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1.1 Salary |
R |
1. |
R |
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1.2 |
R |
2. |
R |
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1.3 |
R |
3. |
R |
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2. ASSETS |
4. |
R |
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2.1 Immovable |
Value |
5. |
R |
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Residence |
R |
6. |
R |
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Other |
R |
7. |
R |
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2.2 Movable |
Value |
TOTAL |
R |
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Vehicle |
R |
Liabilities |
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Furniture |
R |
1 |
R |
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Other |
R |
2 |
R |
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TOTAL |
R |
TOTAL |
R |
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SIGNATURE OF APPLICANT SIGNATURE LEGAL AID OFFICER
DATE: .................................... G.3-1
ANNEXURE I
BENEFIT TO THE BOARD
1. The benefit to the Board will be 15% of the benefit to the client or the proceeds of the action financed by the Board effective on all instructions issued on or after 1 August 1993, but before 1 January 1997.
2. On 7 October 1996, the Board resolved that as from 1 January 1997:
2.1 Special damages are altogether exempted from the stipulations of paragraph 5.19 of the Guide.
2.2 Maintenance payments are altogether exempted from the stipulations of paragraph 5.19 of the Guide, however, with a discretion vested in the Director to determine what constitutes bona fide maintenance payments and what constitutes an acquisition of assets.
2.3 Where a divorce results in the transfer of assets from one spouse to the other and/or an order providing for division of a joint estate, no contribution will be levied against any benefits so obtained.
2.4 Legal aid litigants are otherwise obliged to contribute as follows on amounts realised from any action:
2.4.1 on the first R20 000,00: 0%
2.4.2 on the next R80 000,00: 5%
on excess over R100 000,00: 10%
3. On 21 April 2001 the Board resolved that in respect of Judicare legal aid instructions issued prior to 1 November 1999 which had not been finalised by 1 November 1999, but in respect of which legal aid was terminated as a result of the decisions taken by the Board on either 1 November 1999 (circular 5 of 1999) and/or 31 March 1999 (circular 1 of 2001) no Benefit would be payable to the Board in terms of paragraph 5.19 of the Legal Aid Guide and no attorney and client costs would be recoverable in terms of paragraph 5.13.7 of the Legal Aid Guide but the costs (usually party and party costs) payable to the Board in terms of Section 8A of the Legal Aid Act would still be recovered.
ANNEXURE J
EXPERT WITNESSES
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LAB REFERENCE NO: |
CLIENT: |
BRANCH: |
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Plaintiff/Defendant |
Date: / / |
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ATTORNEY |
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Address |
Telephone: ( ) |
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Fax: ( ) |
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Reference: |
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DATES |
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Trial: |
/ / |
Summaries: |
/ / |
Rule 37 |
/ / |
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Expert 1 |
Expert 2 |
Expert 3 |
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Name |
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Occupation |
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Tariff: consultation |
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Tariff: preparation |
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Tariff: research |
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Tariff: attending court |
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Tariff: other |
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DECISION |
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Official |
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Instruction |
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Instruction |
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Instruction |
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Instruction |
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