| (1) | A court in criminal proceedings may only direct that a person be provided with legal representation at state expense, if the court has— |
| (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) | subject to subsection (3), referred the matter, together with any report the court may consider necessary, for the attention of Legal Aid South Africa, for evaluation and report by Legal Aid South Africa and Legal Aid South Africa has made a recommendation whether or not the person concerned qualifies for legal representation, as provided for in subsection (2)(c)(i). |
| (a) | If a court refers a matter in terms of subsection (1)(b), Legal Aid South Africa must, in accordance with the regulations made under section 23(1) and the Legal Aid Manual, evaluate and report on the matter. |
| (b) | The report in question must be in writing and be submitted to the registrar or the clerk of the court, as the case may be, who must make a copy thereof available to the court and the person concerned. |
| (c) | The report must include— |
| (i) | a recommendation whether or not 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 Legal Aid South Africa, should be taken into account. |
| (3) | A court may only refer a matter in terms of subsection (1)(b) if the person concerned— |
| (i) | has applied to Legal Aid South Africa for legal representation at state expense; |
| (ii) | has been refused legal representation at state expense by Legal Aid South Africa; and |
| (iii) | has exhausted his or her internal right to appeal within the structures of Legal Aid South Africa against the refusal; |
| (b) | has applied for legal representation and has not received any response to the application within a reasonable time; or |
| (c) | has been refused legal representation at state expense by Legal Aid South Africa and the court is of the opinion that there are particular circumstances that need to be brought to the attention of Legal Aid South Africa by the court in a report referred to in subsection (1)(a)(ii). |
| (a) | Any decision by Legal Aid South Africa in any criminal proceedings relating to— |
| (i) | the particular legal practitioner to be assigned to any person; |
| (ii) | the fee to be paid by Legal Aid South Africa to a particular practitioner; |
| (iii) | the number of legal practitioners to be assigned to a particular person or group of persons; or |
| (iv) | the contribution, if any, to be paid to Legal Aid South Africa by the persons in question and when and the manner in which the fee is to be paid, |
is subject to review by the High Court at the instance of the person affected thereby.
| (b | Legal Aid South Africa may, in any review proceedings referred to in paragraph (a)(ii), not be required to pay more than the maximum amounts determined in the Legal Aid Manual in terms of section 24(1)(c). |
| (5) | Only a court in review proceedings may make an order relating to the matters referred to in subsection (4). |
| (6) | In determining whether any person is entitled to legal representation at state expense and before any court orders the provision of legal representation at state expense, the legal aid applicant bears the onus of showing, on a balance of probabilities, that he or she— |
| (a) | is unable to afford the cost of his or her own legal representation; |
| (b) | has made a full disclosure of all relevant facts and documents pertaining to his or her inability to pay for his or her own legal representation; |
| (c) | has a lifestyle that is consistent with his or her alleged inability to afford the cost of his or her own legal representation; and |
| (d) | has cooperated fully with any investigation conducted by Legal Aid South Africa. |
| (7) | No accused person may receive legal representation at state expense if that person has applied for the release of an amount for reasonable legal expenses in terms of section 44(1)(b) of the Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998), and where the court has turned down the application due to a lack of a full disclosure as required in terms of section 44(2)(b) of that Act. |
