Hon Chairperson, the right to legal aid is a fundamental human right. It ensures that even a person who does not have money is put on a par with the prosecutor in criminal cases, or with the opposite lawyer in civil cases. It is one of the demands made in that famous, honourable document, the Freedom Charter, which provided that: "All shall be equal before the law."
When the ANC took over government, it entrenched this right in the Constitution. The Constitution therefore obliges the state at its expense to provide legal representation to the detained and sentenced prisoners, and to the accused persons as part of a right to a fair trial, and to children in civil matters. These provisions are in section 35(2), section 35(3) and in section 28(1) respectively.
The government therefore decided to create a legal framework to realise this right. Earlier on there was the Legal Aid Act, No 22 of 1969, which was amended several times. You also get section 73(2)(a), section 309(d) of the Criminal Procedure Act; sections 82(1), and 82(2) of the Child Justice Act, which provides that every child has the right to legal assistance.
There is section 149(a) of the Labour Relations Act, which also assists people who cannot afford legal representation; section 4(5) of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act and Rule 53(8) of the Magistrates Court Rules.
However, this right is not without limitations. In criminal cases, the Constitution provides that one would only be entitled to the right to have a legal practitioner offered to him or her at the state's expense if substantial injustice would otherwise result. The mandate of the Legal Aid Act, as amended, provides for legal aid for indigent persons.
The Supreme Court of Appeal in the case of Porritt vs Bennett, which is found in 2011(1) SACR 166, held that the right to legal aid at the state's expense where substantial injustice may arise involves two elements, namely the complexity of the case as well as the ability of the accused to afford the cost of legal representation from his or her resources. In determining if an accused is able to afford the costs of legal representation, the means test, as applied by the Legal Aid South Africa, should be applied.
This principle also applies to civil cases. This limitation is caused by finance. I hear that my learned friends have come here and said that poor or new legal representatives like students can't; I am not sure if they can pop out a lot of money for the well-qualified lawyers to assist, but it would be helpful.
Secondly, I think, my learned friend, I am not sure how much of the law you know. I am not saying you don't know ... [Interjections.] ... but surely in each and every court in South Africa, no accused goes without being represented. [Interjections.] And it is better to have a student at the time or somebody who is fresh from school, rather than to have a person who doesn't know anything about law. [Interjections.]
Thirdly, I know that when you don't know ...