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Chapter 5 - COURTS AND COURT CASES

Using an attorney

If you have to appear in court, it is important that you get legal advice from a qualified person because court procedures can be very complicated. You can get this from a qualified paralegal, attorney or advocate.   

The current legal profession is divided into two branches - advocates and attorneys. The attorney is the person who you first contact when you are looking for legal advice or if you have a legal problem (unless you have access to an advice centre and paralegals). Attorneys should provide a broad range of services to cover a variety of legal problems.

Attorneys refer clients to advocates who are experts in various areas of the law, especially the presentation of cases in court. Advocates also give legal opinions and help with the drafting of legal documents.

In terms of the Right of Appearance in Courts Act (No 62 of 1995), advocates can appear in any court, while attorneys can appear in all of the country's lower courts and can also apply to appear in the superior courts.

Responsibilities of attorneys

From the time that the attorney starts on your case, he or she is working for you. The attorney is there to advise you about your problem. The attorney also represents you in any meeting with a client and in court hearings. This means that the attorney speaks for you and acts for you and charges you a fee for doing this.

Reporting attorneys

If you have complaints about your attorney, talk to him or her about your concerns 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 and performance of attorneys.

When do you need a lawyer?

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

How to find a lawyer

The Magistrate's Courts usually have a list of attorneys. But these lists do not say which attorney will be the right attorney 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 an attorney 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, an attorney 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 attorney.

How to pay for an attorney

Going to court and paying for an attorney can be very expensive but if you cannot afford this there are ways to get a attorney's services for free, or for very little money. Legal Aid is one of the most important of these services but others include University Legal Aid Clinics, Legal Aid Centres, Law Society offices,  Justice Centres and advice centres

Applying for Legal Aid

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

You cannot get Legal Aid for the following kinds of problems.

• Traffic offences, such as driving, speeding or parking offences and drunken driving
• criminal cases if you are going to plead 'guilty'
• defamation, or insults to your character
• where you are suing for money (damages) for relationship-related claims such as defamation, breach of promise to marry, infringement of dignity or privacy, seduction, adultery
• cases to prove a person is the father of another person's child
• child maintenance cases which can be decided by a maintenance office

You can get legal aid for divorce cases, but not if:

• There is a reasonable possibility that you might get together with your spouse again
• There are no children involved in the divorce
• You do not meet the means test

You can get legal aid for a labour matter:

• If you are claiming unfair dismissal (you have been unfairly dismissed) as long as your claim is made within the time limits set by the Labour Relations Act
• To demand a merit report (but legal aid will be refused if there are good reasons to believe you are not taking up a job on purpose or that you resigned from a job in order to be granted legal aid)
  

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

Means test

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

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

• pension
• medical aid
• income tax
• UIF

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

Means test amounts:

• single persons who has a net monthly income of R5 000 or less  can get Legal Aid
•  An applicant that is part of a household and who’s household has a net income of R5 500 per month or less can get Legal Aid.

and

• If the applicant or household owns immovable property( house). The immovable property must be worth R300 000 or less.

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

Steps to take to get Legal Aid

Go to a Legal Aid branch office or, if there is not one in your area, to the nearest magistrates' court to enquire about legal aid. All magistrates' courts have a legal aid officer who will help you with your legal aid enquiries.

The legal aid officer will check that you satisfy the means test and whether your matter falls within the scope of the guidelines set out by the Legal Aid Board. If you qualify, then you will be sent to an attorney, who will receive what is called a 'legal aid instruction' for your case. That attorney will then deal with your case. Attorneys do have a right to refuse a legal aid instruction, but they normally do not refuse. If they do refuse, a legal aid instruction can be made out to another attorney.

Legal Aid Clinics

Legal Aid South Africa also operates a number of Legal Aid Clinics which employ attorneys to provide legal services to people. Some of these Clinics are established in partnership with universities and others were run by Legal Aid South Africa.

Justice Centres

In 1998 Legal Aid South Africa saw the need to establish Justice Centres to deal with the numbers of people requiring legal assistance. Full-time staff and attorneys who work there provide a number of different services.

See Resources for contact details of Justice Centres.

Who can use Justice Centres?

A person can only use the services of an attorney in a Justice Centre if they qualify under the means test for legal aid. The priority of Justice Centres is to assist vulnerable groups such as women, children and people who are landless.

See Means test.

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).

University legal aid clinics

Many universities in South Africa have law clinics. The clinics usually help people who fall within the income limits set by Legal Aid South Africa. But they do not exclude people for the other reasons set out by Legal Aid South Africa. So, for example, they will take on cases like traffic offences and maintenance claims.  Senior law students deal with 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 an attorney.

See Resources for contact details of university legal aid clinics.

Advice Offices

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

Legal Resources Centres

Legal Resources Centres are public interest law firms funded by private donors. They deal with problems which affect large numbers of people in the community.

See Resources for contact details of LRC offices.

Attorneys associations

Local associations of attorneys may assist with funding of specific cases, or providing attorneys to take on cases or give advice for free. These attorneys associations are:

• Lawyers for Human Rights (LHR)
• Black Lawyer’s Association (BLA)
• National Association of Democratic Attorneys (NADEL)