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Chapter 3 - Court Cases

Lawyers and how to pay

Introduction

If you have to appear in court, it is important that you get legal advice. Court procedures can be very complicated. Paralegals and advice offices can help to give you advice, but a paralegal cannot represent you in court. Often you will need a lawyer for this.

A lawyer is a person who has qualified after training in the law at university. You pay for the lawyer's services and the lawyer helps you by using his or her knowledge and experience.

Different kinds of lawyers

There are four kinds of lawyers:

Attorneys

You go to an attorney if you need legal advice. Attorneys can be found in cities and big towns. Attorneys can represent people in the Magistrate's Court. If an attorney has been practising for about 5 years, he or she can also represent people in the High Court.

Advocates

You do not go directly to an advocate. If you need an advocate then your attorney will go with you to the advocate. Usually advocates only work with complicated cases. They can appear in the High Court and also in the Magistrate's Court.

You can also go directly to an advocate who is a member of an independent advocates association to do the work of an attorney for you.

However, it is better not to go use the services of one of these advocates because they are not controlled by the bar council or law society so there is no control over the fees they charge and what they do with your money once you have handed it over to them.

Conveyancers

Conveyancers are lawyers who have passed a special examination in conveyancing. They deal with how the transfer of land or buildings, and the registration of mortgage bonds.

Notaries public

Notaries public are lawyers who have passed a special notaries examination. The work of a notary public is to draw up certain legal documents, like marriage contracts or other documents called notarial deeds or bonds.

When do you need a lawyer?

Many people only see a lawyer after they get into trouble. But the best time to see a lawyer is before the trouble starts. By getting legal advice before you do something you can prevent a legal problem. For example, a lawyer can help you before you start a business, make a will, sign a contract, and so on.

However it would be expensive to see a lawyer every time you have a legal problem. Therefore it is better to see a paralegal in your community, or in the nearest advice office in order to get advice about your rights.

If you need a lawyer and cannot afford to hire one, there are services that provide free legal assistance.

See How to pay for a lawyer

How to find a lawyer

One of the best ways to find a lawyer is to ask a friend who had a similar problem and who used a lawyer to solve it.

The Magistrate's Courts usually have a list of lawyers. But these lists do not say which lawyer will be the right lawyer for your problem.

Some big cities have organisations like Legal Resources Centres or Legal Aid Clinics at the Universities. They will help you to find a lawyer who will be sympathetic towards your problem.
In the rural areas it is best to approach your local civic association, advice office or paralegal volunteers. Or you can speak to a church organisation or trade union organiser.

Before taking a case, a lawyer usually asks for money, as a deposit towards fees. You should discuss how much the whole case is going to cost the first time you see the lawyer.

How to pay for a lawyer

Going to court and paying for a lawyer can be very expensive. But if you cannot afford this there are ways to get a lawyer's services for free, or for very little money.

These are some of the ways:

Lawyers who get funding for specific cases

Some lawyers who do a lot of work for oppressed communities understand that their clients are too poor to pay. These lawyers may be able to get private funding for your case so that you do not have to pay.

They can get private funding for these types of cases:

• cases dealing with problems that affect large groups of people, for example when a community tries to claim back land from which it was removed under apartheid
• cases dealing with protest action by a group of people

But less money is now available for these kinds of cases because South Africa is now a democratic country. It is not as easy to get private overseas funding as it was in the past.

Legal Aid

Sometimes the government will help with legal fees, through the Legal Aid Board. Legal Aid is for people who cannot afford to pay legal fees. You have to pass a means (income) test to get Legal Aid. If you qualify for Legal Aid, then the Legal Aid Board will pay most of your lawyer's fees.

But you cannot get Legal Aid for certain kinds of problems. For example:

• driving, speeding or parking offences
• criminal cases where you plead 'guilty'
• defamation, or insults to your character
• seduction
• adultery
• cases to prove a person is the father of another person's child
• child maintenance cases
• divorce - if you have received Legal Aid before
• drunken driving
• shoplifting
• theft
• possession of drugs
• domestic violence

But if your case is very strong, then even if it is one of these examples, you can still apply for Legal Aid. The Director of Legal Aid will look at your case and decide if you can have Legal Aid, or not.

Here are some examples of cases where you can get Legal Aid, if you pass the means test:

• criminal charges
• civil claims for court orders when you cannot get what you want in any other way, for example interdicts
• civil claims for more than R3 000, for example, for assault, illegal eviction, wages. Remember, if your claim is for less than R3 000 you can sue through the Small Claims Court.

Means test

In order to get Legal Aid you must also pass the MEANS TEST.

This is a test to see how much money you earn every month. If you earn more than a certain amount of money every month, then the government believes that you can afford to pay for a lawyer for yourself. Then you will not get Legal Aid for your case.

Your lawyer or the Legal Aid officer will ask you questions about your wages. For purposes of the means test, your salary means the money that is left over after these deductions are made:

• pension
• medical aid
• income tax
• rent for accommodation
• bond repayments

If a person is applying for Legal Aid for a divorce case then the person is treated as a single person for purposes of the means test.

The means test changes from time to time. Here are some examples of means test amounts:

• single persons who earn less then R600 per month can get Legal Aid
• married persons who earn less than R1 200 per month can get Legal Aid
• an amount of R180 can be added onto these amounts for each dependent child

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

See PROBLEM 4: Passing the Legal Aid means test

Steps to take to get Legal Aid

If you need Legal Aid, you can go a lawyer first, or you can go directly to the Legal Aid Board.

Most large cities have Legal Aid offices. If there is no Legal Aid office in your area, you should go to the local Magistrate's Court and ask for the Legal Aid officer. There should be a Legal Aid officer at each Magistrate's Court.

If you go to the Legal Aid Board first, then they will help you to fill in the forms. Then if they decide to give you Legal Aid, they will send you to a lawyer. They will choose the lawyer to do your case.

If you think you need a lawyer who will be sympathetic towards your case, then you should go to the lawyer first, before you go to the Legal Aid Office. The lawyer will help you to fill in the application forms for Legal Aid.

See Resources for a list of Justice Centres and Legal Aid Clinics with contact details

Justice Centres

Since 1990 the Legal Aid Board has operated the Office of the Public Defender in Johannesburg. The Legal Aid Board employed lawyers in the Office of the Public Defender to defend people in criminal cases. The Office of the Public Defender in Johannesburg was run as a pilotproject to see how the system worked.

In 1995 the Legal Aid Board opened a number of Legal Aid Clinics. It employed lawyers to provide legal services to people. Some of these Clinics were established in partnership with universities and others were run by the Legal Aid Board. There are over 20 such Clinics set up by the Legal Aid Board.

In 1998 the Legal Aid Board saw the need to extend its services to people who couldn't afford a lawyer by establishing Justice Centres. Justice Centres are like Legal Aid Clinics but much bigger. Full-time staff and lawyers work there to provide a number of different services. The Legal Aid Board plans to set up 61 Justice Centres between the years 2000 and 2005, with a total of 905 people working in these centres.

Who can use Justice Centres?

A person can only use the services of a lawyer in a Justice Centre if they qualify under the means test for legal aid.

See Means test

The Justice Centres prioritise assisting vulnerable groups such as women, children and the landless.

What services do Justice Centres provide?

Justice Centres provide services such as:

Referrals: The Justice Centres keep a detailed database of relevant services and agencies for helping people who need social, economic, welfare or psychological assistance. The Centres refer people to an appropriate agency with a referral letter.

Advice: The Centres help people who need basic legal advice such as where and how to apply for a birth certificate, interpreting a contract, and so on.

Legal representation: The Centres provide legal representation to people for cases including criminal, civil, family law and labour cases. The legal representation will focus on using processes such as arbitration, mediation and negotiation, not only litigation (formal legal procedures).

See Resources for a list of Justice Centres and Legal Aid Clinics with contact details

University legal aid clinics

Most universities in South Africa now have law clinics. The clinic usually helps people who fall within the income limits set by the Legal Aid Board. But they do not exclude people for the other reasons set out by the Legal Aid Board. So they will take on traffic offence cases, maintenance cases, and so on.

Senior law students take the cases that come through the legal aid clinics. Like paralegals these students cannot do court work but they can give advice, write letters and negotiate settlements for people who cannot afford to get a lawyer.

See Resources for a list of university legal aid clinics with contact details

Advice Offices

Advice offices are found in many of the major cities and rural towns. Advice office workers are not lawyers but they do get paralegal training. So they can give advice, write letters, refer people to the right authorities or organisations where they can be helped, refer people to lawyers, and so on.

Legal Resources Centres

Legal Resources Centres are public interest law firms. They deal with problems which affect large numbers of people in the community . The people who work in Legal Resources Centres are advocates, attorneys and paralegals. They are funded by private funders. You do not pay if your case is taken on by someone who works at these Centres.

The Centres are mostly involved in human rights law, labour law and consumer law problems. For example, in 1986 the Legal Resources Centre represented people in Crossroads who had their houses burnt down and lost property, in a damages claim against the police.

The Centres also help train people in advice offices and law clinics.

There are Legal Resources Centres at:

Johannesburg
Durban
Cape Town
Port Elizabeth
Grahamstown
Pretoria

Other lawyers' associations

There are also local associations of lawyers who may assist with funding specific cases, or with providing lawyers to take on cases or to give advice for nothing.

These lawyers associations are:

• Lawyers for Human Rights (LHR)
• Black Lawyers Association (BLA)
• National Association of Democratic Lawyers (NADEL)

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Lawyers and their responsibilities

From the time that the lawyer starts on your case, he or she is working for you. The lawyer is there to advise you about your problem. The lawyer also represents you. This means that the lawyer speaks for you and acts for you.

The lawyer's responsibilities towards you

The lawyer is not doing you a favour. The lawyer is working for you, and getting paid. You can expect good service from the lawyer.

• The lawyer must answer all your questions and try and answer in a way that you will understand.
• The lawyer must answer all the letters that you write to him or her.
• If you leave a message for the lawyer asking him or her to phone you back, then the laywer must phone you back.
• If you want information on the progress on your case, then the lawyer must tell you how things are going.
• The lawyer must tell you how much the fees and expenses are so far, if you ask.
• The lawyer must not make you sign any papers that you do not understand.
• The lawyer must not decide about important things before discussing them first with you.
• After the case, the lawyer must send you an account. The account must show clearly what work was done. If you don't understand the account, the lawyer must explain it to you.

Reporting lawyers

If the lawyer does not do these things, or if you have complaints about your lawyer, talk to your lawyer first. Then, if you are still not satisfied, complain to the Law Society. Each province has a Law Society which is responsible for controlling the conduct of lawyers.

Your responsibilities towards a lawyer

Your case is not the only case that the lawyer will be working on.

• You must always make an appointment to see a lawyer.
• Before your appointment with the lawyer, collect together all your information and papers so that time is not wasted with having to make more appointments.
• Do not be late for your appointment. If you cannot make the appointment, then telephone and cancel it.
• After you have told the lawyer about your problem, ask the lawyer what she or he can do to help you.
• Ask how much the case will cost you. If you do not have enough money, then ask the lawyer to apply for Legal Aid for you.
• The lawyer may ask you to do certain things before the next appointment. Do these things. Otherwise there will be no progress in your case and it will not be the lawyer's fault.
• If the lawyer sends you a letter or telegram, read it carefully and try to do what the lawyer asks you to do.