| (1) |
Legal Aid South Africa may grant legal aid to a sentenced or detained person or an accused person in a criminal trial if it is likely that such person would suffer substantial injustice: Provided that substantial injustice might occur if that person cannot afford legal representation and the possibility that he or she might be imprisoned exists. |
| (2) |
A legal aid applicant who is charged in the High Court of South Africa or a magistrate’s court for a regional division may be granted legal aid without any further enquiry into the nature and seriousness of the charge: Provided that such applicant is unable to afford the cost of his or her own legal representation that would sustain the anticipated duration of trial. |
| (3) |
A legal aid applicant who is charged in the district magistrate’s court for the following offences may be granted legal aid, if the district magistrate’s court has a statutory increased penal jurisdiction: |
| (b) |
any offence referred to in the Drugs and Drug Trafficking Act, 1992 (Act No. 140 of 1992); |
| (c) |
unlawful possession of or unlicensed dealing in firearms or ammunition; |
| (d) |
dealing in liquor without a licence; |
| (f) |
driving under the influence of alcohol or drugs; |
| (g) |
overloading of a vehicle as provided for by the National Road Traffic Act, 1996 (Act No. 93 of 1996); |
| (h) |
reckless or negligent driving; and |
| (i) |
any attempt to commit any of the offences in this regulation. |
| (4) |
A legal aid applicant who is charged in the district magistrate’s court for the following common law and statutory offences may be granted legal aid: |
| (b) |
administering poison or other noxious substances; |
| (d) |
assault with intention to cause grievous bodily harm or common assault; |
| (i) |
defeating or obstructing the ends of justice; |
| (q) |
malicious damage to property; |
| (u) |
receipt of stolen property; |
| (x) |
theft and shoplifting; |
| (aa) |
any sexual offence referred to in sections 12, 13 or 14 of the Criminal Law (Sexual Offences And Related Matters) Amendment Act, 2007 (Act No. 32 of 2007); and |
| (bb) |
any attempt to commit any of the offences in this regulation. |
| (5) |
Legal aid may be refused for— |
| (b) |
public indecency; and |
Provided that Legal Aid South Africa has a general discretion to grant legal aid in these cases where—
| (i) |
resources permit; and |
| (ii) |
Legal Aid South Africa is convinced that the accused person will experience substantial injustice if not legally represented. |
| (6) |
A legal aid applicant who is charged in the district magistrate’s court for any statutory offence relating to the following matters may be granted legal aid: |
| (a) |
Administration of justice; |
| (b) |
animal and nature conservation; |
| (e) |
counterfeiting currency; |
| (f) |
dealing in unwrought precious metals or uncut gemstones; |
| (g) |
escaping from custody or obstructing the police; |
| (h) |
persons with mental disabilities; |
| (l) |
any attempt to commit an offence referred to in this regulation. |
| (7) |
Legal Aid South Africa, in assessing an application by a legal aid applicant who is charged in the district magistrate’s court with an offence that is not listed in subregulations (3), (4), (5) or (6), may grant legal aid to the legal aid applicant, after consideration of the following factors: |
| (a) |
the complexity of the case in law and in fact, including the imposing of an appropriate sentence; |
| (b) |
the legal aid applicant’s ability to represent himself or herself, and |
| (c) |
the gravity of the case, taking into account the nature of the charge against the accused and the possible consequences to him or her if convicted. |
| (8) |
Legal Aid South Africa must be satisfied on a balance of probabilities that there is a good prospect of success before legal aid is granted in the following kinds of cases: |
| (c) |
interlocutory applications to a court that is not the trial court; |
| (d) |
condonation applications; and |
| (e) |
applications to lead further evidence. |
| (9) |
A legal aid applicant may not receive legal aid for a criminal case if he or she is entitled to legal representation at the expense of the state attorney or a government department. |
| (10) |
An alleged offender against whom an application in terms of section 31 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007), is brought may receive legal aid for legal representation at such hearing. |
| (11) |
Where the alleged offender referred to in subregulation (10) is receiving legal aid for the trial, the legal aid instruction includes legal representation at the hearing referred to in subregulation (10). |
| (12) |
Where the alleged offender referred to in subregulation (10) has not yet been charged or is not already receiving legal aid for the trial, he or she must apply for legal aid for the appointment of a legal representative to appear on his or her behalf at the hearing of the application referred to in subregulation (10). |
| (13) |
A child is entitled to legal representation at a preliminary enquiry contemplated in the Child Justice Act, 2008 (Act No. 75 of 2008). |
| (14) |
Legal Aid South Africa may not refuse to grant legal aid to a child who is charged for an offence in a child justice court contemplated in the Child Justice Act, 2008. |
Basic Conditions of Employment Act, 1997
