Legal Aid South Africa Act

Link to law: http://www.gov.za/documents/legal-aid-south-africa-act
Published: 2014-12-09

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Legal Aid South Africa Act
Please note that most Acts are published in English and another South African official language. Currently we only have capacity to publish the English versions.
This means that this document will only contain even numbered pages as the other language is printed on uneven numbered pages.
Government Gazette
REPUBLIC OF SOUTH AFRICA
Vol. 594 Cape Town 9 December 2014 No. 38315
THE PRESIDENCY No. 1013 9 December 2014
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
Act No. 39 of 2014: Legal Aid South Africa Act, 201

2 No. 38315 GOVERNMENT GAZETTE, 9 December 2014 Act No. 39 of 2014 Legal Aid South Africa Act, 2014
ACT To ensure access to justice and the realisation of the right of a person to have legal representation as envisaged in the Constitution and to render ormake legal aid and legal advice available; for that purpose to establish an entity called LegalAid South Africa with a Board of Directors and to define its objects, powers, functions, duties and composition; to provide for the independence and impartiality of Legal Aid South Africa; to provide for the appointment of the Board of Directors and qualification for membership thereof; to provide for the appointment of a chairperson and a deputy chairperson; to provide for the term of appointment of a member of the Board of Directors; to provide for the termination of membership of the Board of Directors; to provide for meetings of the Board of Directors, quorum and procedure; to provide for the establishment of committees by the Board of Directors; to provide for the delegation of powers and the assignment of duties or functions of the Board of Directors; to provide for the appointment of a chief executive officer and his or her functions; to provide for the appointment of employees and the designation of certain officials as agents of Legal Aid South Africa and their terms and conditions of employment; to provide for the protection of client privilege in certain circumstances; to provide for the recovery of costs by Legal Aid South Africa; to provide for the finances of Legal Aid South Africa; to provide for the provision of legal aid by direction of courts in criminal matters; to provide for the making of regulations; to provide for the compilation of a LegalAid Manual; to provide for the amendment or repeal of laws; to provide for transitional arrangements; and to provide for matters incidental thereto.
Parliament of the Republic of South Africa enacts as follows:— ARRANGEMENT OF SECTIONS
Sections
CHAPTER 1
DEFINITIONS
1. Definitions
CHAPTER 2
LEGALAID SOUTH AFRICA
2. Establishment of Legal Aid South Africa and its relationship with Board 3. Objects of Legal Aid South Africa 4. Powers, functions and duties of Board 5. Independence and impartiality of Legal Aid South Africa 6. Composition and appointment of Board 7. Qualification for membership of Board
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(English text signed by the President) (Assented to 9 December 2014)
4 No. 38315 GOVERNMENT GAZETTE, 9 December 2014 Act No. 39 of 2014 Legal Aid South Africa Act, 2014
8. Chairperson and deputy chairperson 9. Term of appointment 10. Termination of membership of Board 11. Meetings of Board 12. Quorum and procedure 13. Committees of Board 14. Delegation of powers and assignment of duties or functions of Board
CHAPTER 3
PERFORMANCE OF ADMINISTRATIVE WORK OF LEGAL AID SOUTH AFRICA
15. Appointment of chief executive officer 16. Functions of chief executive officer
CHAPTER 4
SUPPORT STRUCTURE OF LEGALAID SOUTH AFRICA
17. Employees and agents of Legal Aid South Africa 18. Terms and conditions of employment of employees 19. Protection of client privilege in certain circumstances 20. Recovery of costs by Legal Aid South Africa 21. Finances of Legal Aid South Africa
CHAPTER 5
GENERAL PROVISIONS
22. Provision of legal aid by direction of courts in criminal matters 23. Regulations 24. Legal Aid Manual 25. Amendment or repeal of laws 26. Transitional arrangements 27. Short title and commencement
SCHEDULE
Laws Amended or Repealed
CHAPTER 1
DEFINITIONS
Definitions
1. In this Act, unless the context indicates otherwise— ‘‘agent’’ means an official of the Department of Justice and Constitutional Development who is designated to assist legal aid applicants in completing applications for legal aid; ‘‘Board’’ means the Board of Directors appointed in terms of section 6; ‘‘candidate attorney’’ means a person undergoing practical vocational training (articles of clerkship) with a view to being admitted and enrolled as an attorney; ‘‘chief executive officer’’ means the chief executive officer appointed in terms of section 15; ‘‘Constitution’’ means the Constitution of the Republic of South Africa, 1996; ‘‘director’’ means a member of the Board of Directors; ‘‘Legal Aid South Africa’’ means the national public entity, that is established under section 2(1), in order to give effect to the objects provided for in section 3; ‘‘legal practitioner’’means a practising attorney or advocate; ‘‘Minister’’ means the Cabinet member responsible for the administration of justice;
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‘‘Public Finance Management Act’’means the Public Finance Management Act, 1999 (Act No. 1 of 1999); and ‘‘this Act’’ includes the regulations made under section 23(1).
CHAPTER 2
LEGALAID SOUTH AFRICA
Establishment of Legal Aid South Africa and its relationship with Board
2. (1) There is hereby established a national public entity as provided for in the Public Finance ManagementAct, to be known as LegalAid SouthAfrica, which is governed by a Board appointed under section 6.
(2) The Board, of which the powers, functions and duties are set out in section 4, is represented by the chief executive officer and any director or directors as may be designated by the Board.
Objects of Legal Aid South Africa
3. The objects of Legal Aid South Africa are to— (a) render or make available legal aid and legal advice; (b) provide legal representation to persons at state expense; and (c) provide education and information concerning legal rights and obligations,
as envisaged in the Constitution and this Act.
Powers, functions and duties of Board
4. (1) The Board may do all that is necessary or expedient to achieve the objects referred to in section 3, including the following:
(a) Provide legal services, representation and advice, by— (i) employing legal practitioners and candidate attorneys; (ii) employing paralegals, who are persons that are not legal practitioners but
have knowledge and understanding of the law, its procedures and its social context acquired through training, education, work experience or a national registered qualification in paralegal practice; and
(iii) procuring the services of legal practitioners in private practice by entering into contracts or agreements with them and other entities.
(b) Determine, in consultation with the Minister and the Minister of Finance, its own staff establishment and the terms and conditions of employment for its staff as provided for in section 18.
(c) Purchase or otherwise acquire, hold or alienate any— (i) movable property; or (ii) immovable property with the approval of the Minister acting in
consultation with the Minister of Finance. (d) Hire or let any movable or immovable property. (e) Fix conditions subject to which legal aid is to be rendered, including—
(i) conditions in accordance with which any rights in respect of costs recovered or recoverable in any legal proceedings or any dispute in respect of which the aid is rendered, are ceded to LegalAid SouthAfrica; and
(ii) the payment of contributions to Legal Aid South Africa by persons to whom legal aid is rendered.
(f) Provide legal representation at state expense as envisaged in the Constitution and this Act, where substantial injustice would otherwise result and render or make legal aid and legal advice available.
(g) Conduct programmes to promote public awareness of constitutional and other legal rights and public understanding of the objects, role and activities of Legal Aid South Africa.
(h) Pay out of the funds of Legal Aid South Africa such remuneration and allowances to members of the Board, their alternates and any committee members appointed in accordance with section 13 who are not in the full-time service of the State, as may be determined by the Minister of Finance from time to time.
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(i) Do all things and perform all functions necessary for, or incidental to, the attainment of the objects of Legal Aid South Africa.
(2) The Board is the accounting authority of Legal Aid South Africa in accordance with section 49 of the Public Finance Management Act, and is charged with the responsibilities referred to in that Act.
Independence and impartiality of Legal Aid South Africa
5. Legal Aid South Africa, its directors, employees and agents must serve impartially and independently and exercise their powers and perform their duties and functions in good faith and without fear, favour, bias or prejudice.
Composition and appointment of Board
6. (1) The Board consists of the following 14 voting members, appointed by the Minister in writing:
(a) A judge in active service of a court referred to in section 166(a), (b) or (c) of the Constitution, nominated by the Chief Justice of South Africa after consultation with the Board.
(b) Eight members who, as a whole, have the skills referred to in section 7(d). (c) The chief executive officer. (d) Three employees appointed by the Board for the management of Legal Aid
South Africa, and who are responsible for the management, including the financial management, of Legal Aid South Africa and who are actively involved in developing and implementing Legal Aid South Africa’s strategy nominated by the Board.
(e) The Director-General: Justice and Constitutional Development, or his or her nominee.
(2) The Minister may appoint a person to serve as an alternate in the place of any member referred to in subsection (1)(b), (c) and (d) during that member’s absence from any meeting of the Board, if that person is qualified to be appointed as such member and has been nominated in the same manner as that member. (3)Adecision taken by the Board or an act performed under the authority of the Board
is not invalid merely because of a vacancy on the Board or because a person who is not entitled to sit as a member sat as a member at the time the decision was taken or the act was authorised, if the decision was taken or the act was authorised by the required majority of members present at the time, who were entitled to sit as members. (4) In the case of directors referred to in subsection (1)(b), the Board must, whenever
necessary, invite nominations for the appointment of persons as directors in the manner determined by the Minister in consultation with the Board. (5) Any vacancy on the Board arising pursuant to section 10 must be filled in
accordance with this section.
Qualification for membership of Board
7. (1) A director must, subject to subsection (2)— (a) be a fit and proper person; (b) be a South African citizen; (c) not be an unrehabilitated insolvent; (d) not be a person declared to be of unsound mind by a court of the Republic; (e) not be a person who has been convicted in a court of first instance—
(i) of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine; or
(ii) of an offence, which involves any element of dishonesty, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, other than a conviction for an offence committed prior to 27 April 1994 associated with political objectives; or
(iii) of an offence under the Companies Act, 2008 (Act No. 7 of 2008), the Insolvency Act, 1936 (Act No. 24 of 1936), the Close Corporations Act, 1984 (Act No. 69 of 1984), the Competition Act, 1998 (Act No. 89 of 1998), the Financial Intelligence Act, 2001 (Act No. 38 of 2001), the Financial Markets Act, 2012 (Act No. 19 of 2012), or Chapter 2 of the Prevention and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004):
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Provided that if the person in question lodges an appeal against the conviction or sentence, he or she must be suspended from office, pending the outcome of the appeal;
(f) not have been prohibited from being a director of a company; or (g) not have been removed from an office of trust, on the grounds of misconduct
involving dishonesty. (2) When constituting the Board in terms of section 6, the following factors must, as
far as is practicable, be taken into account— (a) the racial and gender composition of South Africa; (b) the objects of Legal Aid South Africa and the Board; (c) representation of persons with disabilities; (d) provincial representation; and (e) experience in and knowledge of—
(i) business management; (ii) information technology; (iii) the provision of legal services, including experience as a practising
attorney or advocate; (iv) corporate governance; (v) accounting or auditing; (vi) community-based knowledge relevant to legal aid; (vii) legal education and training; (viii) civil and criminal proceedings and the functioning of the courts and
tribunals in general; and (ix) knowledge in public interest law.
Chairperson and deputy chairperson
8. (1) The judge appointed in terms of section 6(1)(a) is the chairperson of the Board and the Minister must, in writing designate one of the directors referred to in section 6(1)(b) as deputy chairperson of the Board, who must act as the chairperson if the position of chairperson is vacant or during the absence or incapacity of the chairperson. (2) The deputy chairperson, when acting as chairperson as provided for in subsection
(1), has all the powers, duties and functions of the chairperson. (3) If both the chairperson and deputy chairperson are absent from a meeting of the
Board, a person elected by the directors present from among themselves, must preside at that meeting.
Term of appointment
9. The chairperson, the deputy chairperson and a director referred to in section 6(1)(a), (b) and (d) and any alternate member appointed in terms of section 6(2) holds office for a term of not less than three years and not more than five years, as determined by the Minister, in writing, at the time of his or her appointment and may be reappointed for one additional term only.
Termination of membership of Board
10. (1) A director ceases to be a director of the Board when— (a) he or she resigns on one month’s written notice addressed to the Minister and
the Board; (b) he or she no longer meets the qualifications for membership listed in section 7; (c) in the case of a director referred to in section 6(1)(c) and (d), he or she is no
longer in the employment of Legal Aid South Africa; or (d) his or her term of office as director expires.
(2) The Minister may remove a director from office for— (a) failing to perform the duties of a director or to perform them diligently and
efficiently; (b) permanent incapacity; (c) being absent from three consecutive meetings of the Board without the
chairperson’s leave and without good reason; or
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(d) engaging in any activity that is reasonably capable of undermining the integrity of Legal Aid South Africa.
(3) Before removing a director from office in terms of subsection (2), the Minister must afford the person in question an opportunity to be heard.
Meetings of Board
11. (1) The Board must meet at least four times every year at a time and place as determined by the Board.
(2) (a) The secretary of the Board must, at any time, upon the request in writing of— (i) the chairperson of the Board; or (ii) not less than four directors, subject to paragraph (b),
convene a special meeting of the Board, to be held at a time and place as the chairperson may determine. (b) At least one of the directors referred to in paragraph (a)(ii) must be a director
referred to in section 6(1)(a) or (b).
Quorum and procedure
12. (1) The quorum at any meeting of the Board is half of its members, plus one. (2) Any decision at any meeting of the Board must be taken by a majority of votes of
the directors present, and in the event of an equality of votes, the person presiding at the meeting has a casting vote in addition to a deliberative vote. (3) The Board may determine the procedure of its meetings.
Committees of Board
13. (1) The Board may, in writing and in the interest of good governance, establish one or more committees, consisting of one or more directors, employees or other persons designated or appointed by the Board, to assist it in exercising its powers and the performance of its functions as it may deem necessary. (2) The Board— (a) must determine the powers, duties and functions of a committee; (b) must designate a member of a committee as chairperson and, if it deems it
necessary, may designate a member of a committee as deputy chairperson; (c) may, at any time, remove a member of a committee or dissolve a committee;
and (d) may determine the procedure for the conduct of the meetings of a committee.
(3)When constituting a committee the following factors must, as far as is practicable, be taken into account—
(a) the racial and gender composition of South Africa; (b) the objects of the committee in question; and (c) representation of persons with disabilities.
Delegation of powers and assignment of duties or functions of Board
14. (1) Subject to the provisions of the Public Finance Management Act, the Board may, in writing, delegate any of its powers or assign any of its duties or functions imposed on or assigned to it, to any director, committee, employee or agent of LegalAid South Africa. (2) A delegation or assignment in terms of subsection (1)— (a) is subject to any conditions and directions as the Board may deem appropriate;
and (b) does not divest the Board of the responsibility for the exercise of the power or
the performance of the duty or function.
CHAPTER 3
PERFORMANCE OF ADMINISTRATIVE WORK OF LEGAL AID SOUTH AFRICA
Appointment of chief executive officer
15. (1) The Board must, whenever necessary, appoint a fit and proper person who has applicable knowledge and experience, as the chief executive officer of Legal Aid South Africa.
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(2) The chief executive officer— (a) holds office—
(i) for an agreed term not exceeding five years, which may be renewed; and (ii) on the terms and conditions as determined by the Board which must be in
a written contract of employment and which must include the terms and conditions of employment and set specific measurable performance standards; and
(b) receives the remuneration, allowances and other service benefits as the Board may determine in accordance with section 18.
(3) Whenever the chief executive officer is absent, unable to perform the functions of that office or during a vacancy in the office of the chief executive officer, the chairperson, in conjunction with the chief executive officer if he or she is available, must designate a senior employee of Legal Aid South Africa, excluding members of the Board, to act as the chief executive officer.
Functions of chief executive officer
16. (1) The chief executive officer under the strategic direction of the Board— (a) is responsible for the general administration of Legal Aid South Africa; (b) must manage and direct its activities to promote and give effect to the objects
of Legal Aid South Africa; and (c) must supervise its staff.
(2) Subject to the provisions of section 56 of the Public Finance ManagementAct, the chief executive officer has such powers and duties as may, in writing, be delegated or assigned to him or her by the Board.
CHAPTER 4
SUPPORT STRUCTURE OF LEGALAID SOUTH AFRICA
Employees and agents of Legal Aid South Africa
17. (1) The chief executive officer must, subject to subsection (3) and section 18— (a) in consultation with the Board, appoint as many senior employees; (b) appoint as many other employees; and (c) designate certain officials as agents in cooperation with the Department of
Justice and Constitutional Development, as may be necessary to assist Legal Aid South Africa in the exercise of its powers and performance of its functions. (2) (a) Legal Aid South Africa has the right to operate its offices and justice centres
without having to seek accreditation from any law society referred to in the Attorneys Act, 1979 (Act No. 53 of 1979), and is entitled to employ candidate attorneys, subject to the provisions of the Attorneys Act, 1979.
(b) For the purposes of paragraph (a), ‘‘justice centre’’ means offices of Legal Aid South Africa which administer and provide legal aid in the Republic. (c) Despite the provisions of paragraph (a), attorneys and candidate attorneys
employed by Legal Aid South Africa must be members, in good standing, of the law society having jurisdiction and are subject to the disciplinary control of the law society in question. (3) When appointing employees and designating agents as contemplated in
subsection (1), the following factors must, as far as is practicable, be taken into account—
(a) the racial and gender composition of South Africa; (b) the objects of Legal Aid South Africa and the Board; and (c) representation of persons with disabilities.
Terms and conditions of employment of employees
18. (1) The Board may, in consultation with the Minister and the Minister of Finance, appoint on such conditions and at such remuneration, employees referred to in sections 15 and 17 to assist in the performance of its functions.
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(2) The provisions of the Labour Relations Act, 1995 (Act No. 66 of 1995), relating to collective bargaining are applicable when the terms and conditions of employment are determined as provided for in subsection (1). (3) Any expenditure arising from the application of this section may not exceed the
appropriated budget allocation to Legal Aid SouthAfrica in terms of the Public Finance Management Act.
Protection of client privilege in certain circumstances
19. (1)A private legal practitioner who has been instructed by LegalAid SouthAfrica to represent a person who qualifies for legal aid under this Act must, when requested by Legal Aid South Africa, grant access to the information and documents contained in the file relating to the person in question for the sole purpose of conducting a quality assessment of the work done by the legal practitioner. (2) The information and documents referred to in subsection (1) remain privileged
information against any other party as information between attorney and client, despite having been made available to Legal Aid South Africa.
Recovery of costs by Legal Aid South Africa
20. (1) Whenever in any judicial proceedings or any dispute in respect of which legal aid is rendered to a litigant or other person by Legal Aid South Africa, costs become payable to that litigant or other person in terms of a judgment of the court or a settlement or otherwise, it is, subject to the powers of the Board referred to in section 4 with regard to the fixing of conditions, deemed that the litigant or other person has ceded his or her rights to those costs to Legal Aid South Africa.
(2) A litigant or person referred to in subsection (1) or his or her legal representative or LegalAid SouthAfrica must, at any time before payment of the costs deemed in terms of subsection (1) to be ceded to Legal Aid South Africa, whether before or after those costs become payable, give the person by whom the costs are to be paid at his or her last known address and the registrar or clerk of the court concerned notice in writing that legal aid is being or has been rendered, and Legal Aid South Africa may proceed in its own name to have those costs taxed and to recover them, without being substituted on the record of the judicial proceedings concerned, if any, for the litigant in question. (3) The costs referred to in subsection (1) must be calculated and the bill of costs
concerned, if any, must be taxed or agreed as if the litigant or person to whom legal aid was rendered, had obtained the services of the legal representative acting on his or her behalf in the proceedings or dispute concerned, without the aid of Legal Aid South Africa.
Finances of Legal Aid South Africa
21. The funds of Legal Aid South Africa consist of— (a) money appropriated by Parliament; and (b) money received from any other source,
and must be budgeted for, managed and accounted for, in terms of the Public Finance Management Act.
CHAPTER 5
GENERAL PROVISIONS
Provision of legal aid by direction of courts in criminal matters
22. (1)A court in criminal proceedings may only direct that a person be provided with legal representation at state expense, if the court has—
(a) taken into account— (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
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(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).
(2) (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—
(a) (i) has applied to Legal Aid South Africa for legal representation at state expense;
(ii) has been refused legal representation at state expense by LegalAid 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 SouthAfrica by the court in a report referred to in subsection (1)(a)(ii).
(4) (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 SouthAfrica 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
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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.
Regulations
23. (1) The Minister must, after receipt of recommendations of the Board, make regulations relating to—
(a) the types of matters, both civil and criminal, in respect of which Legal Aid South Africa— (i) provides legal aid; (ii) does not provide legal aid; and (iii) provides limited legal aid and the circumstances in which it does so;
(b) the requirements or criteria that an applicant must comply with in order to qualify for legal aid, as well as the terms and conditions on which such legal aid is made available to the applicant;
(c) the policy relating to the approval or refusal of legal aid, the termination of legal aid and appeals against such refusal or termination of legal aid; and
(d) any matter which it is necessary or expedient to prescribe for the proper implementation or administration of this Act.
(2)Any regulations made under subsection (1) must, before publication thereof in the Gazette, be tabled in Parliament by the Minister for approval. (3) The regulations made under subsection (1) may provide that any person who
contravenes a provision thereof or fails to comply therewith is guilty of an offence and on conviction is liable to a fine or to imprisonment for a period not exceeding one year.
Legal Aid Manual
24. (1) The Board must compile, amend and approve a Legal Aid Manual and must at least every second year review the Legal Aid Manual relating to—
(a) the procedures in terms of which applications for legal aid are administered; (b) the systems and methods whereby legal aid is delivered; (c) the requirements and criteria for the accreditation of private legal practitioners
who render legal services to legal aid recipients on the instructions of Legal Aid South Africa and the terms and conditions subject to which such instructions are allocated to accredited legal practitioners, including the fees and disbursements that are payable by Legal Aid South Africa to accredited legal practitioners, taking into consideration the salary scales applicable to the public service; and
(d) the regulation of any other administrative matter which the Board deems necessary for the effective and efficient functioning of LegalAid SouthAfrica.
(2) The Board must submit the Legal Aid Manual and any amendment thereof to the Minister who must—
(a) table the Legal Aid Manual and any amendment thereof in Parliament; and (b) simultaneously give notice thereof by notice in the Gazette.
(3) The Legal Aid Manual and any amendment thereof takes effect 60 days after the publication of the notice referred to in subsection (2)(b) and is binding on all persons and organisations providing legal aid assistance in terms of this Act. (4) The Board must publish the LegalAid Manual and any amendments thereof on its
website and a copy thereof must be available for inspection at all offices of Legal Aid South Africa.
Amendment or repeal of laws
25. (1) The laws mentioned in the second column of the Schedule are amended or repealed to the extent indicated in the third column thereof.
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(2)Any reference to ‘‘the LegalAidAct, 1969 (Act No. 22 of 1969)’’ in any law must, with the changes as may be required by the context, be construed as a reference to ‘‘the Legal Aid South Africa Act, 2014’’. (3)Any reference to ‘‘the LegalAid Board’’ in any law must, with the changes as may
be required by the context, be construed as a reference to ‘‘the Board’’ established under section 2 of this Act.
Transitional arrangements
26. (1) (a)Any person who, immediately before the commencement of this Act, held an office in terms of section 4(1) of the Legal Aid Act, 1969 (Act No. 22 of 1969), is deemed to have been appointed in terms of this Act, and remains in that office for a period of 12 months after the commencement of this Act. (b) The persons referred to in paragraph (a), the chief executive officer referred to in
paragraph (c) and the three persons referred to in paragraph (d) must, within the 12 month period referred to in paragraph (a), facilitate the composition and appointment of a Board as provided for in section 6. (c) Despite paragraph (a), the chief executive officer of Legal Aid South Africa
holding office at the time of the commencement of thisAct is deemed to be a member of the Board for the 12 month period referred to in paragraph (a), who is thereafter eligible for appointment in terms of section 15. (d) Despite paragraph (a), the Board, as constituted by virtue of paragraphs (a) and
(c), must, as soon as possible after the commencement of thisAct, but not later than three months thereafter, nominate the three persons referred to in section 6(1)(d) for purposes of appointment by the Minister in terms of that section for the 12 month period referred to in paragraph (a), who are thereafter eligible for appointment in terms of that section.
(e)TheMinister must, as soon as possible after the commencement of thisAct, but not later than three months thereafter, designate one of the persons referred to in paragraph (a) as deputy chairperson of the Board for the 12 month period referred to in paragraph (a). (2) Any person who, immediately before the commencement of this Act, was
employed by the Board under the Legal Aid Act, 1969 (Act No. 22 of 1969), continues in that employment and is deemed to have been appointed in terms of this Act. (3)Anything done in terms of a law repealed by section 25 and which could have been
done in terms of this Act is regarded as having been done in terms of this Act. (4) (a) Subject to paragraph (b), all measures which, immediately before the
commencement of this Act, were in operation and applied to office-bearers, officers, employees and agents of Legal Aid South Africa, including measures regarding their remuneration, pension, leave and any other terms and conditions of service, continue in operation and apply until they are amended or repealed by this Act. (b) No measure referred to in paragraph (a) may, except in accordance with an
applicable law or agreement, be changed in a manner which affects those office-bearers, officers, employees and agents of Legal Aid South Africa to their detriment. (5) All assets, rights, liabilities and obligations which, immediately before the
commencement of thisAct, vested in the LegalAid Board under the LegalAidAct, 1969 (Act No. 22 of 1969), pass to Legal Aid South Africa established under this Act on the date of commencement of this Act. (6) (a)The LegalAid Guide in force on the date of commencement of thisAct remains
in force until it is withdrawn and replaced by regulations made under section 23(1) and the Legal Aid Manual referred to in section 24(1). (b) The first regulations and Legal Aid Manual referred to in paragraph (a) must be
made and published within 24 months after the commencement of this Act.
Short title and commencement
27. ThisAct is called the Legal Aid SouthAfricaAct, 2014, and comes into operation on a date fixed by the President by proclamation in the Gazette.
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24 No. 38315 GOVERNMENT GAZETTE, 9 December 2014 Act No. 39 of 2014 Legal Aid South Africa Act, 2014
SCHEDULE
LAWS AMENDED OR REPEALED
Number and year of law
Title Extent of amendment or repeal
Act No. 22 of 1969
Legal Aid Act, 1969
The repeal of the Act.
Act No. 51 of 1977
Criminal Proce- dure Act, 1977
1. The amendment of section 73 by the sub- stitution in subsection (2C) for the words ‘‘the Legal Aid Act, 1969 (Act No. 22 of 1969)’’ of the words ‘‘the Legal Aid South Africa Act, 2014’’.
2. The amendment of section 77 by the sub- stitution in subsection (1A) for the words ‘‘in terms of section 3B of the Legal Aid Amend- ment Act, 1996 (Act No. 20 of 1996) of the words ‘‘in terms of section 22 of the Legal Aid South Africa Act, 2014’’.
3. The amendment of section 143 by the sub- stitution in subsection (2)(a) for the words ‘‘the Legal Aid Act, 1969 (Act No. 22 of 1969)’’ of the words ‘‘the Legal Aid South Africa Act, 2014’’.
4. The amendment of section 309D by the substitution in subsection (3) for the words ‘‘the Legal Aid Board referred to in section 2 of the Legal Aid Act, 1969 (Act No. 22 of 1969)’’ of the words ‘‘Legal Aid South Africa referred to in section 2 of the Legal Aid South Africa Act, 2014’’.
Act No. 53 of 1979
Attorneys Act, 1979
1. The amendment of section 1 by— (a) the substitution in paragraph (b) of the
definition of ‘‘community service’’ for the words ‘‘the Legal Aid Board estab- lished under section 2 of the Legal Aid Act, 1969 (Act No. 22 of 1969)’’ of the words ‘‘Legal Aid South Africa estab- lished under section 2 of the Legal Aid South Africa Act, 2014’’; and
(b) the substitution in paragraph (c) of the definition of ‘‘principal’’ for the words ‘‘the Legal Aid Board established under section 2 of the Legal Aid Act, 1969 (Act No. 22 of 1969)’’ of the words ‘‘Legal Aid South Africa established under sec- tion 2 of the Legal Aid South Africa Act, 2014’’.
2. The amendment of section 3 by— (a) the substitution in subsection (1)(fA) for
the words ‘‘the Legal Aid Board’’ of the words ‘‘Legal Aid South Africa’’ and for the substitution of the words ‘‘the Legal Aid Board’’ of the words ‘‘Legal Aid South Africa’’; and
(b) the substitution in subsection (1)(i)(i) for the words ‘‘the Legal Aid Board’’ of the words ‘‘Legal Aid South Africa’’.
3. The amendment of section 4A by the sub- stitution in paragraph (c) for the words ‘‘the Legal Aid Board’’ of the words ‘‘Legal Aid South Africa’’.
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26 No. 38315 GOVERNMENT GAZETTE, 9 December 2014 Act No. 39 of 2014 Legal Aid South Africa Act, 2014
Number and year of law
Title Extent of amendment or repeal
4. The amendment of section 6 by the substi- tution in subsection (3)(b) for the words ‘‘the Legal Aid Board’’ of the words ‘‘Legal Aid South Africa’’.
5. The amendment of section 8 by the substi- tution in subsection (4)(a) for the words ‘‘the Legal Aid Board’’ of the words ‘‘Legal Aid South Africa’’.
Act No. 66 of 1995
Labour Relations Act, 1995
1. The amendment of subsection (1) of sec- tion 149 by— (a) the substitution in paragraph (a) for the
words ‘‘the Legal Aid Board’’ of the words ‘‘Legal Aid South Africa’’; and
(b) the substitution in paragraph (b) for the words ‘‘the Legal Aid Board’’ of the words ‘‘Legal Aid South Africa’’.
Act No. 4 of 2000 Promotion of Equality and Pre- vention of Unfair Discrimination Act, 2000
1. The amendment of section 30 by the sub- stitution in subsection (1)(c) for the words ‘‘the Legal Aid Board’’ of the words ‘‘Legal Aid South Africa’’.
Act No. 17 of 2002
Mental Health Act, 2002
1. The amendment of section 15 by the sub- stitution in subsection (2) for the words ‘‘sec- tion 3(d) of the Legal Aid Act, 1969’’ of the words ‘‘section 4(1)(e) of the Legal Aid South Africa Act, 2014’’.
Act No. 38 of 2005
Children’s Act, 2005
1. The amendment of section 55 by the sub- stitution in subsection (1) for the words ‘‘the Legal Aid Board referred to in section 2 of the Legal Aid Act, 1969 (Act No. 22 of 1969)’’ of the words ‘‘Legal Aid South Africa referred to in section 2 of the Legal Aid South Africa Act, 2014’’.
Act No. 75 of 2008
Child Justice Act, 2008
1. The amendment of section 1 by the dele- tion of the definition of ‘‘Legal Aid Board’’.
2. The amendment of section 1 by the inser- tion of the following definition:
‘‘ ‘Legal Aid South Africa’ means the entity referred to in section 2 of the Legal Aid South Africa Act, 2014’’.
3. The amendment of section 80 by the sub- stitution in subsection (2) for the words ‘‘in the case where the legal representative con- cerned has been employed by the Legal Aid Board, the Board; or’’ of the words ‘‘in the case where the legal representative concerned has been employed by Legal Aid South Af- rica, the Board of Directors of Legal Aid South Africa; or’’.
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28 No. 38315 GOVERNMENT GAZETTE, 9 December 2014 Act No. 39 of 2014 Legal Aid South Africa Act, 2014
Number and year of law
Title Extent of amendment or repeal
4. The amendment of section 82 by the sub- stitution for subsection (1) of the following subsection:
‘‘(1) Where a child appears before a child justice court in terms of Chapter 9 and is not represented by a legal represen- tative of his or her own choice, at his or her own expense the presiding officer must refer the child to [the Legal Aid Board] Legal Aid South Africa for the matter to be evaluated by the Board as provided for in [section 3B(1)(b) of the Legal Aid Act, 1969 (Act No. 22 of 1969] section 22(1)(b) of the Legal Aid South Africa Act, 2014.’’.
5. The amendment of section 83 by the sub- stitution for subsection (2) of the following subsection:
‘‘(2) If a child referred to in subsection (1) does not wish to have a legal represen- tative or declines to give instructions to an appointed legal representative, the court must enter this on the record of the pro- ceedings and a legal representative must, subject to the provisions of the [Legal Aid Guide] Legal Aid Manual referred to in [section 3A of the Legal Aid Act, 1969 (Act No. 22 of 1969)] section 24(1) of the Legal Aid South Africa Act, 2014, be ap- pointed by [the Legal Aid Board] Legal Aid South Africa to assist the court in the prescribed manner.’’.
6. The amendment of section 89 by the sub- stitution in subsection (5)(a) for the words ‘‘the Legal Aid Board’’ of the words ‘‘Legal Aid South Africa’’.
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