Do I qualify for Legal Aid in a criminal case?

You probably qualify if you are charged with a serious offence and you cannot afford a private attorney. Legal Aid South Africa applies a means test based on what you earn and what you own, and it covers criminal defence in most serious matters. The number is 0800 110 110.

Two separate things have to happen, and people regularly do only one of them.

First, tell the court. On your court date, when the magistrate asks whether you have legal representation, say that you want a lawyer and cannot afford one. This is not a formality. Under section 35 of the Constitution of the Republic of South Africa, 1996, an accused has the right to a legal practitioner at state expense where substantial injustice would otherwise result, and the court must deal with your request rather than carry on as though you had not asked.

Second, apply to Legal Aid. The court will normally refer you, but do not rely on that alone. Phone 0800 110 110 or walk into your nearest Legal Aid office.

Legal Aid South Africa is a statutory body established under the Legal Aid South Africa Act 39 of 2014. It is not a charity handout and it is not a lesser service. Its practitioners are admitted attorneys who appear in criminal courts every working day, and in the district and regional courts they usually know the local magistrates and prosecutors better than a private attorney flying in from another city.

What the means test actually looks at

Legal Aid works out whether you can afford a private attorney. It looks at:

• Your income. Salary, wages, income from a business, a pension, a grant, and regular money from anyone else.
• Your household. In some cases the income of a spouse or partner is taken into account.
• What you own. Property, vehicles, savings and investments.
• Your obligations. Certain deductions and dependants are taken into account.

The thresholds change, so no page on the internet should be quoting you a figure. Phone 0800 110 110 or ask at a Legal Aid office. If you are unemployed, in custody, or earning a modest wage, you are very likely inside the test.

If you are in custody awaiting trial, ask the court and the correctional facility to put you in touch with Legal Aid. Being in custody is itself a strong factor in favour of representation.

What Legal Aid covers in a criminal case

Legal Aid covers criminal defence in most serious matters. In practice that means:

• Advising you before and at your first appearance.
• Running a bail application, including an opposed application in the regional court. See Schedule 5 and Schedule 6 bail.
• Negotiating with the prosecutor, including about diversion in suitable cases. See how diversion works.
• Defending a trial in the district or regional court to finality.
• Representing you in the High Court in the most serious matters.
• Advising on sentence, and taking a matter on appeal or review where there are grounds.

What it generally does not do is run every minor matter for everyone. Very minor offences, where a conviction carries no realistic prospect of imprisonment and the accused can manage the process, may not be covered. The more serious the charge and the more real the risk of imprisonment, the stronger your position.

Legal Aid deals mainly with criminal defence rather than with clearing old records. If your issue is an old conviction, you apply for expungement to the Department of Justice and Constitutional Development yourself at no cost. See how to clear your criminal record.

How to apply, step by step

Step one: phone 0800 110 110 or find your nearest Legal Aid office. Many are inside or next to magistrates' courts.

Step two: say clearly that this is a criminal matter and give the case number and the next court date. Criminal matters with imminent court dates are treated with urgency.

Step three: complete the application form. You will be asked about your income, your household and what you own, and asked to sign a declaration.

Step four: hand in your supporting documents. An application without payslips or a bank statement sits in a queue.

Step five: get the practitioner's name and contact details. Once assigned, write them down. The single most common complaint about Legal Aid is a client who does not know who is on their file.

Step six: prepare for the consultation. Your practitioner carries a heavy roll. Twenty minutes with a client who has a written timeline and an organised bundle is worth two hours with one who does not.

A worked example

The names, dates and figures are illustrative only.

Jabu earns R6 800 a month as a security guard. He is arrested on a Thursday and appears in court on the Monday, charged with an offence the prosecutor says falls under Schedule 5. He has no savings, rents a room, and supports two children.

At his first appearance the magistrate asks whether he has an attorney. Jabu says he wants a lawyer and cannot afford one. The magistrate notes it and refers him to Legal Aid. The matter is postponed for eight days for a formal bail application in the regional court, and Jabu is remanded in custody.

His sister phones 0800 110 110 the same afternoon, gives the case number and the next date, and is told which office is handling the court. She takes in his last three payslips, his identity document, his lease and a letter from his employer confirming that his job is held open. She also brings her own identity document and proof of address, because she is willing to stand as a surety.

A practitioner is assigned. He consults with Jabu in custody, prepares an affidavit and puts up the employment letter, the lease and the surety. Bail is granted at R5 000 with a reporting condition.

Jabu pays nothing for the bail application or for the trial that follows. Privately, an opposed regional court bail application alone would have cost him many thousands of rand. See what a criminal attorney costs for the comparison.

The part his family got right was speed. They phoned on day one rather than waiting to see what happened at the next court date.

What to do this week

1. Phone 0800 110 110 today if there is a criminal charge and a court date. Do not wait for the court to refer you.
2. Say in court that you want a lawyer and cannot afford one, and make sure it goes on the record.
3. Write down your case number, your court and your next date and keep them with you.
4. Gather your income proof now, because the application stalls without it.
5. Write a one page timeline of what happened, with dates, names and places.
6. Ask for your assigned practitioner's name and number and keep in contact with them.
7. Do not miss a court date. A warrant for your arrest makes everything else harder, including a bail application.

Documents to gather

Your identity document. Your last three payslips, or an affidavit if you are unemployed or work informally. Recent bank statements. Proof of residence such as a lease or a municipal bill. Details of anything you own, including a vehicle or property. Proof of dependants, such as birth certificates. Your charge sheet, written notice to appear or bail receipt, and the case number. The notice of your next court date. If you are in custody, your details at the correctional facility so the practitioner can arrange a consultation. A written timeline of the events, and the names and contact details of any witnesses.

Take copies. Legal Aid offices keep originals of nothing you might need at court.

A realistic timeline

Criminal matters move faster through Legal Aid than civil ones because the court dates drive the timetable. If your next appearance is next week, say so on the phone.

Common mistakes and what they cost

• Waiting for the court to sort it out. Courts refer, but the application is yours to make. Weeks disappear this way.
• Not saying anything in court. A magistrate cannot act on a request you never made. Say it out loud and make sure it is recorded.
• Assuming you earn too much. The thresholds change and people talk themselves out of an application they would have passed. Phone and ask.
• Applying without documents. No payslips means no decision.
• Losing contact with the practitioner. A changed phone number is one of the biggest causes of unprepared court appearances.
• Turning down Legal Aid to save face and then representing yourself in a regional court trial. That is not a saving.
• Missing a court date and picking up a warrant, which damages a later bail application.

If you cannot afford an attorney

That is precisely what this page is about, but if Legal Aid turns you down there are still routes.

Ask why. If the refusal is based on income you no longer earn, or on a vehicle you no longer own, say so and provide proof. Circumstances change and applications can be reconsidered.

Tell the court about the refusal. The court still has to consider whether proceeding without a lawyer would cause substantial injustice, and the seriousness of the charge and your ability to conduct a defence are part of that.

University law clinics. Most major centres have one attached to a law faculty, staffed by admitted attorneys supervising students, and many take criminal work at no charge.

Community advice offices, which will at least help you understand the process and the paperwork.

Legal Aid judicare arrangements, where Legal Aid instructs a private attorney at its cost in certain matters. Ask the office whether this applies to yours.

Pro bono work. Attorneys have professional obligations to do free work, and the Legal Practice Council can point you towards firms who take criminal matters.

Pay only for the stage that matters. If you are just outside the means test, consider paying privately for the bail application alone and running the rest with whatever help you can get. See what a criminal attorney costs.

Frequently asked questions

The question asked most is whether a Legal Aid lawyer is as good as a private one. They are admitted attorneys doing criminal work full time in the courts where your matter sits, and that experience counts for a great deal. People also ask whether they can choose their practitioner. Generally no, because Legal Aid allocates files, though you can raise a genuine conflict with the office. And people ask what accepting Legal Aid costs. Ask the office to confirm the position for your matter before you sign anything.